Nkandlagate can repeat itself if Parliament passes Nhleko’s Bill

29 June 2016

The Minister of Police, Nathi Nhleko, has finally published his long overdue draft Critical Infrastructure Protection Bill, which unsurprisingly does nothing to revise the draconian National Key Points Act of 1980 that allowed for the abuse of State funds at Nkandla. 

Effectively, the Bill in its current form, can be used by the President, at the behest of the Minister, to give effect to another Nkandlagate scandal.   

To this end, we will demand that the Minister of Police go back to the drawing board and ensure that a Bill, completely consistent with Constitution, is drafted. South Africans cannot afford another R240 million scandal, using public money that should be used to deliver better services and create jobs.

Just this week, the National Treasury announced that President Jacob Zuma is liable for R7.8 million and must pay “personally” as per the Constitutional Court’s landmark judgement earlier this year. It would be an insult to all South Africans if Jacob Zuma’s government would, in the face of this, not take the necessary steps to prevent this corruption from repeating itself.

Of great concern it that the list of critical infrastructure would remain secret. This means, as is the case today, it would not be possible to know what is classified a critical infrastructure. This list should be made public, and available for public scrutiny.

Equally, strict criteria for what should be classified as a critical infrastructure are not set out in the bill. The requirements are vague, allowing for abuse and political meddling. 

It is also highly worrying that Parliament would, through this Bill, entirely exclude itself from the process of identifying and protecting critical infrastructure. This means that there will be no effective oversight and accountability. 

Without Parliament having oversight over the appointment of persons to the new Critical Infrastructure Council (CIC) – tasked with evaluating, monitoring and reviewing the implementation of policy and legislation related to the protection of the critical infrastructure – the Council could be easily captured by the ANC to continue its capture of state institutions. 

Furthermore, and equally worrying, is that neither the CIC nor the Minister is required to report to Parliament on this Bill. Recent abuses of the NKPA indicate that it is essential that there is oversight over the protection of critical infrastructure, and Parliament must be the body to do so. 

A year ago, I introduced a private members bill to govern Critical Infrastructure. This bill called for:

- parliamentary oversight to counteract the Minister’s authority;

- the establishment of a board to oversee the functions surrounding the protection and classification of critical infrastructure installations, as opposed to the Minister of Police having sole discretion;

- strict criteria for the classification of critical infrastructure installations;

- the allocation of responsibility of carrying costs associated with declaring a place or area as critical infrastructure to the government rather than private individuals;

- publication of the list of critical infrastructure installations; and

- oversight by the Portfolio Committee of Police in relation to implementation of the Act.

The ANC blocked this Bill. Having read their new version, it is now clear as to why they did so.

We know that the President has 246 million good reasons to keep the NKP Act albeit in a bill with a new title. This cannot be allowed to happen. Public money should be spent on our people, not on ensuring that President Jacob Zuma’s cattle receive five-star treatment at state expense. 

Another troubling aspect of the draft Bill is that individuals may be guilty of a criminal offence if they photograph or take videos of critical infrastructure. According to the draft Bill, any photography for “unlawful purposes” exposes an individual to severe penalties, including imprisonment. 

The wording used in the draft Bill leaves too much room for interpretation and could lead to governmental clampdown on dissent or to political prosecution. For example, a journalist covering the Nkandla scandal could be imprisoned for taking pictures of the President’s opulent private residence. 

In so doing, the draft Bill will adversely impact the likelihood of whistleblowing, as the wording of the punitive measures makes prosecution for providing information in such circumstances too likely. 

The National Key Points Act, as it exists today, was designed to ensure that the Apartheid state could continue to rule with an iron-fist, without the transparency and accountability that is required by the Constitution today. The Act was used to wage war against the people of South Africa, by allowing the Apartheid Minister of Defence wide berth to declare any place in South Africa a National Key Point. The responsibility of this Act was later transferred to the Minister of Police where it remains today.  

The South African people will see this legislative proposition for exactly what it is: license for another scandal of Nkandla proportions, or bigger, to happen through the Police Minister by recycling Apartheid laws for narrow political ends.

Fortunately, South Africans have a chance on 03 August to vote for a DA government that will stop this sort of grand corruption dead in its tracks. We encourage South Africans to vote for the DA and vote for a clean government that puts its efforts into services that benefit all South Africans and not the connected few.

Issued by Zakhele Mbhele, DA Shadow Minister of Police, 29 June 2016