IT IS a terrible irony that both the spending at President Jacob Zuma’s Nkandla residence and the details of how the R206m was spent is being kept secret under an apartheid-era statute that survives on the statute book of a democratic South Africa.
It is reminiscent of how Zimbabwe’s President Robert Mugabe used pre-independence emergency laws to silence political opposition to his rule.
Public Works Minister Thulas Nxesi, Justice Minister Jeff Radebe, State Security Minister Siyabonga Cwele and Police Minister Nathi Mthethwa clearly meant for their news conference last weekend to lay to rest the matter of spending on Mr Zuma’s private home. Instead it has raised a furious response from across the spectrum, including the African National Congress’s alliance partner, the Congress of South African Trade Unions (Cosatu).
By invoking the National Key Points Act for the secrecy around the security upgrade on the property, they might have created still more problems for the president.
The Right2Know campaign says of this law: "The National Key Points Act provides wide-ranging and seldom-scrutinised powers to the minister of police to arbitrarily declare all sorts of places — from the president’s home to the Durban harbour — as national key points where constitutional rights to freedom of expression and access to information are all severely restricted or no longer apply.
"The Right2Know Campaign believes that in all probability this law is unconstitutional and has provided too much cover to politicians and officials who want to abuse ‘national security’ imperatives to protect themselves and their actions from public scrutiny.
"In fact, the law has been so widely and secretly employed since 1994 that it is virtually impossible for the general public to know which places have been declared national key points. The practical effect of this is that the full list of key points has itself become a secret!"
Another key issue relating to the act, identified by Democratic Alliance parliamentary leader Lindiwe Mazibuko, is that section 3 of the Act stipulates that the homeowner is liable for the cost of any security upgrade. It provides that the ministers of police and defence determine how much is to be paid back to the state.
She said: "In light of the now confirmed excessive expenditure of R206m on his private residence in Nkandla, with some R71m being for security alone, it is essential that the government move quickly to prove to South Africa that they will not treat Zuma differently under the law."
The news conference has also spawned a Promotion of Access to Information Act application to get at the report of Nxesi’s task team that investigated the security upgrade.
Nxesi said the report would not be made public but would be supplied to law enforcement agencies to investigate possible criminal acts in the procurement process at Nkandla.
Should the application be refused, as is most likely, court action could follow to force the minister to release the report. Given the huge amount of public money involved, the courts could take a dim view of Mr Nxesi keeping the report under wraps.
Public Protector Thuli Madonsela and auditor-general Terence Nombembe are also still busy with investigations into the Nkandla spending. Madonsela’s investigation is expected within a few months.
Advocate Paul Hoffman, from the Institute of Accountability in Southern Africa, noted that the news conference indicated only junior officials would be held to account.
"Now that we know there were irregularities and can see that it’s obvious that operational requirements of over R100m need explaining, it is appropriate to allow the public protector the time and resources to objectively investigate what went on in Nkandla," he said.
Right2Know also observed that in 2006 "the Department of Public Works used the (the National Key Points) Act to prevent information from being disclosed to the public about an alleged R90m wall around then President Thabo Mbeki’s official residence in Pretoria".
"However," Right2Know said, "the National Key Points Act has been used to prevent accountability in the private sector as well: for example, activists in Durban have a long-running struggle to get information from the Engen Refinery in south Durban — although there are many concerns about the environmental risks posed by the refinery, its status as a national key point has been used to block requests for information, and photographers trying to document environmental hazards at the site have been chased away."
One can only imagine how little information would be made public if the Protection of State Information Bill, dubbed the secrecy bill, were already on the statute books.