The South Gauteng High Court has given the Ministry of Police 30 days to release a public list of National Key Points.
SAHA and the Right2Know Campaign welcome this ruling, which underscores the need for transparency to prevent abuses of security policies. The judgment also highlights the damning failure by the state to provide clear reasons for refusing access to records in terms of South Africa's key accountability law, the Promotion of Access to Information Act (PAIA), noting that SAPS's justification for withholding these records amounted to "platitudes and a recitation of the provisions of the statutes."
We believe that releasing the list of National Key Points would be a vital step in challenging the creep of unjustified ‘national-security' secrecy, authoritarianism and repression in our politics and public life. Only through access to this list can the public begin to identify and resist abuses of this apartheid-era secrecy law, where we see vague ‘National Key Point' powers being invoked to shield certain institutions from criticism, both in government and the private sector.
In May 2013 the Ministry of Police also announced that the Act would be reviewed and amended in Parliament, but said that the public would not have access to the list of National Key Points during such a process. We believe a public review of the Act would be meaningless without access to this list, reducing Parliament's role to nothing more than a rubber-stamping exercise likely to replicate some of the worst parts of the law. We believe that access to this list will most likely demonstrate that the National Key Points Act, as a legal throwback to apartheid-era secrecy, has no place in South Africa's democracy, should be scrapped entirely and replaced by a law premised on principles of openness and accountability.
KEY QUOTES FROM JUDGMENT
"It is wholly unsatisfactory that political office bearers and senior civil servants should have to perform their duties under a cloud of suspicion of incompetence or dishonesty. Transparency about all the facts is necessary to either repair the rot, if any exists, or dispel the lack of confidence which the citizenry will continue to nurse if the facts are concealed."
"...the idea of a peek in this particular case is inapposite because no case is attempted to justify its need, and it is plain that because of the grave policy considerations that attend upon its use, it is never available for the asking, but must be seriously motivated as the only appropriate mechanism to avert a failure of justice."
"A law imposing any liability on a person must be known; there can be no secret laws. If people are at risk of prosecution for a criminal offence they must have had the opportunity to know, beforehand, that the questioned conduct was unlawful. Ergo, the disclosure of national key points is necessary to fulfil the requirements of legality."
"Disclosure cannot be avoided; to have it any other way, is to embrace the ethos of the Star Chamber."
[the Star Chamber being a notorious English court of law which sat at the royal Palace of Westminster from the late 15th century until 1641 in which court sessions were held in secret, with no indictments or witnesses.]
Download the judgment (PDF)
UPDATE: On 18 December 2014, SAHA and R2K received notification of SAPS intention to appeal this judgment.
RECENT MEDIA COVERAGE
Key points list no threat to national security, says judge (Chantalle Benjamin, Mail & Guardian, 3 December 2014)
National Key Points: ‘Transparency necessary to repair the rot’ (Stephen Grootes, Daily Maverick, 4 December 2014)
The surrealism of Key Point secrecy (Pierre de Vos, Daily Maverick, 11 December 2014)