AT FIRST blush, Public Works Minister Thulas Nxesi’s use of the National Key Points Act to justify the expenditure of an obscene amount of public money on President Jacob Zuma’s private rural retreat, and to avoid having to respond to the entirely justified outcry, seems a stroke of genius.
This apartheid-era law — one of as many as 70 that still restrict the flow of information against the spirit of the constitution — allows the minister to declare any place a national key point if, in his opinion, it is "so important that its loss, damage, disruption or immobilisation may prejudice the republic, or whenever he considers it necessary or expedient for the safety of the republic or in the public interest".
Not only does the government then have the right to refuse to release any information pertaining to a place so declared, but it can prosecute anyone who does, and seek to have them jailed. And the public doesn’t even have the right to know what the national key points are — they are deemed so sensitive and secret that discussion of their very existence must be censored.
Hence Mr Nxesi’s attitude that the media should be grateful for the scraps of information he deigned to feed them, as they shouldn’t really be discussing the subject at all. Fortunately, South Africa is now a constitutional democracy, so Mr Nxesi’s arrogance may yet come back to bite him. It is likely that the courts will, yet again, be called upon to declare unconstitutional a law that any reasonable government would have scrapped as contrary to democratic principles.
The National Key Points Act is clearly unconstitutional because it has the potential to turn people into criminals without them knowing they are doing anything wrong, and because the extreme secrecy clause prevents accountability and makes it impossible for anyone to assess whether decisions made under its cover were rational.
The Constitutional Court has already ruled that executive decisions must have a rational basis. Good luck to Mr Nxesi if he ever has to explain to the court why spending more than R200m on Mr Zuma’s private property, "only" about R70m of which was for security upgrades, was a rational move in a country where almost 25% of the population does not enjoy food security and service delivery riots occur almost daily.
There is another reason Mr Nxesi may yet live to regret resorting to scraping the bottom of the apartheid legislation barrel to achieve his narrow political goals, whatever those may be: he has painted himself into a corner. That is because although there are various laws that provide for necessary expenditure at the state’s expense to ensure the security of senior government officials, there are strict limits when it comes to privately owned properties. And the National Key Points Act specifically states that when a property is declared a key point, securing it must be at the owner’s expense. Explaining that one in court will be interesting.
There is no small irony in the fact that Mr Nxesi’s attempt at a cover-up — and implied threat that the might of the state would be used to crack down on anyone who did not accept it — came in the same week as Reporters Without Borders released its annual World Press Freedom Index, in which South Africa dropped 10 positions to 52nd out of 179 countries.
Lest we be accused of hysteria, let it be noted that 52nd is a respectable ranking that signifies a place where information still generally flows freely and journalists are not actively persecuted. But the decline is worrying — the first time since 1994 that South Africa has not made the top 50. Reporters Without Borders attributes that to the threat posed by the Protection of State Information Bill, but it may as well have mentioned the National Key Points Act. The real problem is not the laws, but the fact that South Africa has a government that does not want the public to know what it gets up to.