National Key Points: ‘Transparency necessary to repair the rot’

There is a slight irony in the controversy around the National Key Points issue. Before Nkandla blew up from a small homestead into a rather large dorpie, no one had really heard of the phrase “Key Point”. It was a concept no one really cared about. But then the National Key Points Act was invoked to keep information about government’s spending at Nkandla secret - and the police started to use the same Act to justify all sorts of things, like kicking homeless people away from Justice Department buildings, deleting journalists’ photographs from the Groenpunt Prison and, at one point, to threaten two people who dropped some crap at Cape Town International Airport with twenty years in jail.

So government, and perhaps Number One himself, have really brought this case upon themselves. And boy, what a judgment. It even includes a reference to James Bond.

Johannesburg High Court Judge Roland Sutherland starts out by pointing out that the main aim of the Act itself (which dates from the rather pre-Constitutional year of 1980) was to protect property or properties, and not “the personnel who may frequent them”. In other words, this was about protecting infrastructure, pipelines, et cetera. Almost from the get-go, it seems very difficult to claim that Nkandla itself should actually qualify to be a National Key Point.

Sutherland goes on to explain that the Police Ministry’s main line of argument is this: they don’t want people to know where some of these important places are, because they would be easier to target. “Apparently,” says Sutherland, “there are dark forces who are out to destabilise peace-loving countries like our own.” Coming from someone other than a judge, that might appear to be sarcasm. He goes on to point out that the Ministry has mentioned everyone’s favourite spy:

“He contended the predicament of the respondents was illustrated by the experiences of that well-known gentlemen adventurer and upholder of noble causes, James Bond, who, albeit, it must be supposed, with his usual charm and grace, declined to disclose a fact to a questioner, because were he to do so, he would have to kill him. This is an interesting submission, which, alas, is spoilt by the absence of such an allegation under oath.”

This is possibly the first mention of Mr Bond in the High Court in Jo’burg since Number One’s own advocate Kemp J. Kemp brought up Goldfinger during the rape trial (in trying to claim that there was a political conspiracy – “twice is enemy action” was the quote).

Perhaps the fatal flaw in the Ministry’s argument is that nowhere in the National Key Points Act itself does it say that Key Points must themselves be kept secret. As Sutherland writes, “Nothing in the NKP Act provides for that idea… If it had been the purpose of the Act, it would be startling that no mention was made.” He also points out that no offence is created to penalise someone who does reveal that a place is a Key Point.

Bizarrely, this is actually good news for some government ministers. Because they themselves have actually identified some places, including Nkandla, as Key Points.

Surely, by now, the Ministry is holed well below the waterline. If it’s not in the Act, it’s unjustifiable.

To drive the knife in a little further, Sutherland points out that in the entire document “[t]here is no foundation laid for the idea that individuals will or even may be harmed”. In other words, once again, this was always about protecting infrastructure, not people. Oh dear, Mr Minister.

The shoddiness of the Ministry’s case is demonstrated by the fact that they referred to the Nairobi shopping mall siege in Kenya two years ago to demonstrate the existence of these “dark forces”. Sutherland makes it plain that this was a bad idea. It was, after all, a shopping mall. Not a Key Point. Oops.

For a judge, Sutherland is a fan of the ringing phrase: “It is wholly unsatisfactory that political office bearers and civil servants should have to perform their duties under a cloud of suspicions or incompetence of dishonesty.” And here’s the sound bite: “Transparency about all the facts is necessary to repair the rot.” He’s quick to add, “if there is rot.” But it’s a nice phrase, and the Right2Know Campaign is going to have some fun with it.

The un-Constitutional nature of the Act itself is likely to come into focus, should the Ministry be stupid enough to try to appeal this ruling. As the Mail & Guardian argued, and Sutherland agreed, it just cannot be that citizens cannot know which places are Key Points. If they cannot know, how can they avoid transgressions? He points out that the Ministry didn’t actually give any counter-argument to this. That can only be because there is surely none to give.

He goes further, pointing out that it cannot be in our Constitutional order that an act is a crime only because of where it was committed. It can’t be that this act is a crime only because the place where it happened enjoys a special status. As a result, he says, “[d]isclosure cannot be avoided”.

It seems simply impossible for any other court in this country to come to a different decision on this matter. The Act doesn’t say the list of Key Points must be kept secret; the Constitution places an onus on government to be transparent - it’s open and shut. Which means that if the Ministry does appeal, it’s only playing for time, like it did many times before, using taxpayers' money. This would further feed into the cynicism most of us already feel about the police, the ministry, and, quite frankly, Number One. But there's nothing new there.

If the police really want to repair the damage, they should release the list. Do it now. Not in thirty days - now. If they appeal, they are just playing a political game, which they should have never been part of. And they will look like fools when it’s over. DM