Critical Infrastructure Protection Amendment Bill: public hearings day 2

Meeting report

Briefing by Social Justice Coalition (SJC)

The Social Justice Coalition said the Bill was not a suitable replacement for the National Key Points Act (NKPA) and remained a risk to the hard-won constitutional rights of South African society, because it had far too broad a scope in declaring what was critical infrastructure. The offences and penalties section had significant implications for criminalising acts of protests, especially those involving basic services, legitimate information disclosure and freedom of expression. There were also outrageously disproportionate maximum sentences.

Section 16 dealing with what could be declared critical infrastructure, was wide and vague with no definition of ‘national security’. Factors the Minister of Police had to take into account in section 17 (b), (e), and (k) were broad, and the Minister was vested with too much power in his ability to determine any additional factor for consideration in declaring something as critical infrastructure.

Briefing by Right to Know Campaign (R2K)

Mr Murray Hunter, Secrecy and Securitisation Organiser: R2K, said that the NKPA’s powers were broad, vague and draconian, and had led to numerous abuses. It was a significant concern that the number of national key points and strategic installations had increased 66% over the ten-year period to 2017, and represented a securocratic type of government. The NKPA should be scrapped in its entirety. He spoke to the R2K’s ‘7-Point Freedom Test’ to address the genuine safety and security needs at certain key infrastructure points , according to which the Critical Infrastructure Bill did not meet the required principles and therefore R2K rejected the bill.

R2K questioned the scope of the bill, the transparency measures of the Bill - which did not go far enough – and the offences and penalties found in section 26, where severe maximum penalties were imposed and where legitimate disclosures of information and acts of protest and dissent were potentially criminalised. Additional concerns were that the Bill did not account for 248 secret sites declared to be strategic installations, and there was significant overlap between the Bill and the critical infrastructure information provisions of the Cybercrimes Bill.

Discussion

Mr P Mhlongo (EFF) said the police and army generals had defended the ‘fire pool’ at President Zuma’s residence, Nkandla. He asked if the former Public Protector, Ms Madonsela, who had rejected the term fire pool and said it was a swimming pool, would be arrested under the new Bill. Would children taking photos of the Mandela statue in Parliament’s precinct be regarded as an unlawful act? Was it improper to take photos or videos of exits from Parliament? Even financial institutions could be declared national key points, so would it be the case that the police would be manning the entrances and exits to these places?

Mr L Ramatlakane (ANC) said the presentation had lacked content on research done on what other countries’ policies in regard to the banning of cameras and videos were. Was it correct to balance journalists’ interests with society’s interest, which was not necessarily the same interest? He asked if it was not overstretching the point that the Bill would allow thousands of buildings to be declared national key points.
 
Ms M Molebatsi (ANC) asked what would replace offences that were removed from the Bill. She asked what the presenter had in mind in terms of risk categories.

Ms D Kohler Barnard (DA) said the issue of ‘authoritarian creep’ was worrying, and she highlighted the overlap between the Bill and cybercrime legislation and the fact that there had been no consultation between the committees. There had been an increase in the number of buildings declared “no-go areas,” and the Committee needed to take a decision on the efficacy of the legislation.

Mr Z Mbhele (DA) referred to the objection by R2K to the secrecy of security measures, and asked what the grounds could be for the disclosure of legitimate security measures at critical infrastructure. In the case of Nkandla, the Public Protector’s investigation and subsequent report had decided that those at Nkandla were not security measures, and had therefore amounted to wasteful expenditure. When it came to legitimate security measures, he struggled to see how they could be publicly disclosed. 

Mr Hunter responded on the question about the fire pool, and said that a member of the public -- not the Public Protector -- would need to go to court to defend themselves over the blanket secrecy and their right to freedom of expression, but that was too high a burden. One really needed to determine what was legitimately protected information and what was not, and the Bill did not draw this distinction.

It was not clear in the Bill what recourse there would be if the security management of the institution overstepped the mark, as it did not draw a distinction between overt security like turnstiles, and covert security like escape tunnels.

He said he had not done a country by country analysis of security measures.

On the question about the Protected Disclosures Act, he said that it protected employees from demotion or losing their jobs, but it did not protect the lawyers or journalists because it was not designed for such circumstances.

The inclusion of basic services like water and housing in the Bill would affect 250 municipalities, and their buildings could be deemed to be critical infrastructure. One could then possibly foresee thousands of institutions being classified as critical infrastructure.

The Bill put the responsibility on the private owner of an institution to meet the required standards of security of a place deemed critical infrastructure.

There were already laws to cover acts of sabotage, so there was no need to make a new law.

Regarding the issue of risk, the Bill did not put in place the idea of proportionality. Access turnstiles and secret tunnels were treated the same.

R2K sought the removal of clauses 26(2)(d) and 26(2)(e).

On the secrecy provisions and whether it was legitimate to say there must be public interest protection for disclosures, he said putting in place a public interest defence provided very limited protection. Legitimate security measures might need to be disclosed because they were inadequate, or security measures might need to be disclosed because they were not legitimate.

On the balancing of interests, he agreed that there needed to be a balance, and the inclusion of a public interest defence was where that balance could be struck, where the court would determine whether public interest had been served and also where a whistle-blower or journalist could be protected on disclosures.

Briefing by Southern African Catholic Bishops Conference

Adv Mike Pothier, Research Co-ordinator of the Catholic Parliamentary Liaison Office, said there were still troubling aspects to the bill. These were:

• Clause 3(2), which indicated that the Act would not apply to the Department of Defence infrastructure.
• There was concern that there was still no active role for Parliament, which should play a greater oversight role. Clause 4(6)(f) stipulated that the Minister needed only to submit a report on the five chosen members of the Council to the Portfolio Committee of Police.
• Clause 11(1), which provided for inspectors to conduct inspections. The Bill should retain the qualification “with the consent of the person in control of the critical infrastructure.”
• Regarding clauses 16 and 17, there needed to be a proper balance between protecting critical infrastructure and, on the other hand, safeguarding and promoting the public’s rights. The Minister needed to consider both aspects. In the bill’s current form, the Minister needed to consider only the former.
• Clause 20(2)(b) gave property owners 30 days to make representations when their properties were under consideration to be declared critical infrastructure. A minimum period of 60 or 90 days would be more appropriate.
• There was no reason why private entities or individuals should carry the cost of securing infrastructure which had been declared critical, as stated in clause 24(1), because the declaration was for a public purpose.
• The provisions of clause 25 were too wide and amounted to a blanket prohibition on the rights to freedom of movement, assembly, expression and protest. It should be rewritten to account for the range of infrastructure to be declared critical and the level of risk associated with allowing public access to them.
• The periods of imprisoned contained in clause 26(1), (2), and (3) were too harsh, being over six times greater than the Act it intended to replace.
• The term ‘unlawful purpose’ in clause 26 was not defined, and greater clarity was needed.
• Clause 30(1) deemed national key points of the current Act as critical infrastructure, therefore a list of national key points had to be submitted simultaneously with the new Act coming into effect, otherwise the public would not be able to know when they were infringing the Act.

He summed up by saying the Bill was a considerable advance from the NKPA, but more needed to be done to bring it into line with the requirement of a free and open society, where civil and political rights enjoyed priority.

Discussion

Ms M Mmola (ANC) asked if people entering Parliament should not be checked by scanners.

Mr J Maake (ANC) asked who had to do the balancing act, and how it should be done. Should it be published in the media? Should there be public participation before a place was declared critical infrastructure? He had no problem with the extension of 30 days to 60 or 90 days for owners to respond. What was the presenter’s suggestion on the 30-year penalties under the offences section of the Bill?

Mr Mhlongo referred to the active role of Parliament and the presenter’s suggestion that oversight be escalated to ensure ownership of legislation by the people. He said that there were penalties in the Bill which were six times more than those in the current Act, and it was more punitive than corrective in nature. He wanted the presenter’s views on corrective penalties.

Ms Kohler Barnard asked if the Bill was really a necessity, because there were other bills that covered terrorism, trespassing and cybercrime.

Mr Ramatlakane wanted the presenter’s views on the active role of Parliament. How would it be dealt with, given the separation of powers within the three spheres of government? He said the call for 60 or 90 days was reasonable. Should the current provision that the owner must ensure compliance be scrapped because it was inappropriate? He asked if the connection between a high maximum sentence and an automatic increase in sentences was an assumption or an authoritative statement.

Mr Maake asked if the legislation would be improved if the phrase ‘basic public services’ reverted to the draft bill version, where the term ‘essential services’ was used. On the issue of the owner being responsible for security upgrades, he asked if the presenter was suggesting a means test be implemented.

Adv Pothier responded on the appointment of members to the Council and the specific role of the Portfolio Committee and Parliament, as well as on the separation of powers, saying that when the process of appointments made to public offices was transparent, they enjoyed legitimacy and credibility in the eyes of the public. The Council should follow the same procedure as that of the appointment of the SABC board and the Public Protector processes, where candidates had to appear before Parliamentary Committees. The appointments should not just be left up to the Minister. It was not about taking power away from the Minister, but of being a complementary process.

He had no objection to the use of scanners in respect of access to Parliament.

Regarding the balancing act, the Minister had to apply his mind regarding proportionality to find the right balance, and had to take note off unintended consequences.

On whether critical infrastructure should be decided upon by public participation, he said he wanted to agree that there should be public input, but he was unsure of the practicality of such implementation.

Penalties for unlawful tampering and even for minor offences would take into account the maximum sentence, so judges would not, for instance, give a six-month sentence. He referred to the Malgas case, where the Supreme Court had made reference to upward pressure in sentences and to the Ndlovu case, where the Constitutional Court had ruled on minimum penalties. Upward pressure on sentences was a psychological pressure put on court officials. Courts had also pronounced against “Methuselah sentences”, where courts imposed high sentences to prevent people getting parole, because a life sentence was regarded as 25 years.

What was important was what kind of acts the legislation wanted to stop people from doing. In the Bill, the line was being drawn too far in favour of personal prohibitions. The legislation should justify reasonable access.

He said it was incorrect for private developers supplying rural towns to carry the cost for securing infrastructure. Regarding heritage buildings, it would prevent private owners from developing or upgrading the buildings. There was a legitimate interest in security, but to ask the private owner to pay for the increased security was too much.

He said that rather than using the term ‘basic services,’ the Bill should use the term ‘essential services.’

Briefing by African Policing and Civilian Oversight Forum (APCOF)

Mr Chumile Sali, Project Officer: APCOF, said the Forum’s primary concern was that the proposed definition of critical infrastructure might be inconsistent with the Constitution and broader legislation. Its secondary concerns related to access to information; the lack of clarity on what constituted an offence; and the lack of transparency and accountability relating to the process to determine a key point.

He said the proposed definition of critical infrastructure was very broad and included medical clinics, schools and the like, where restricting access or imposing mandatory searches might limit their function, such as the right to health care, or the right to education. Places required for the provision of basic services and which enabled the fulfilment of basic rights should be excluded.

The appointment criteria for the Council placed emphasis on security-related skills and experience, and relied on the SA Police Service (SAPS) for roles beyond their mandate. The criteria should be expanded to include a broad range of expertise, to proactively protect critical infrastructure from natural disasters and climate change, for example.

He said the Bill allowed for private organisations to be contracted to perform duties that were the mandate of the SAPS. Public order policing should remain the function of SAPS.

The role of the Private Security Industry Regulation Authority (PSIRA) was unclear, and that accreditation procedures pre-supposed rigorous or complete procedures, which was not the case at present.

Section 26 of the bill criminalised both legitimate, as well as illegitimate, disclosures of information. This in effect limited access to information, which was protected by section 32 of the Constitution. The penalties for disclosure were significant, oppressive and at odds with the Constitutional emphasis on freedom.

Discussion

Mr Maake asked if section 26, which criminalised legitimate disclosure, was not covered in the Purpose of the Act, clause (2)(b) “… subject to the Promotion of Access to Information Act.”

Mr Mbhele referred to the comments that it was not sufficient that the composition of the Council included someone with expertise in national disaster management, as in 3(a) (vii), and asked what the alternative suggestion was.

Mr Mhlongo asked how one drew the line on excluding institutions that provided basic services. On section 24, on the abrogation of SAPS duties, he said no private security company could exist without being registered with PSIRA, so how would PSIRA be involved in the process?

Mr Ramatlakane said his primary concern was the definitions of the Bill, and those which were inconsistent with the Constitution.

Mr Sali referred to the composition of the Council, and said the focus was on people from the private sector, but the Council should comprise of more than just people with a security skill set.

Ms Molebatsi asked what consideration had been given to how big the Council should be.

Mr Sali said it should comprise six members, and should be diverse.

He said that if universities were declared critical infrastructure, students would not be able to protest, and if municipal buildings were declared critical infrastructure, then communities would not be able to protest.

He said the question was whether private security companies would be accredited by the state security organisations directly, or if they would have to go via PSIRA.

On the inconsistency of section 16, he said clinics provided basic services and this would mean that inspections of clinics and hospitals could not be done by Members of Parliament (MPs). Academics could not do research on a facility, nor would reporters be able to report on a visit to the facility. The definition was too broad.

Mr Ramatlakane said no clinic had been declared critical infrastructure, so it was an assumption, not a fact. He added that he had not heard the presenter say that certain definitions were unconstitutional.

Briefing by the Congress of SA Trade Unions (COSATU)

Mr Matthew Parks, Parliamentary Co-ordinator for COSATU, said the NKPA was a legal legacy of apartheid and had long been a source of problems for COSATU as it had had an impact on workers at key points, including the abuse of labour’s rights to unionise, picket, protest and disclose corruption, as well as environmental, health and safety rights. The NKPA lacked checks and balances on its executive, as well there being concerns over its secrecy provisions.

COSATU welcomed the replacement Critical Infrastructure Bill, especially the definition of threats, because the current NKPA had broad and vague definitions which could be used to abuse labour rights. The proposed Bill would not in any way interfere with rights found in the Constitution, the Labour Relations Act, the Regulation of Gatherings Act, the Protected Disclosures Act, the Promotion of Access to Information Act and the Promotion of Administrative Justice Act.

COSATU welcomed that searches would be done with regard to decency and order and by members of the same gender, and had proposed an amendment to Section 25(6) to read: “Explicitly prohibit searches requiring workers to be stripped naked or have their orifices probed.”

The critical infrastructure panel was welcomed, as it provided a space for public participation and civilian expertise, instead of having a only narrow security focus. It would be important that
the panel and the Minister take into account public comments when determining critical infrastructures, so COSATU was requesting that Section 16, “The Power of the Minister to Declare Critical Infrastructure and Determine Critical Infrastructure Complex,” and Section 17, “Factors to be Taken into Account in declaration of critical infrastructure,” and Section 20, “Declaration as Critical Infrastructure,” to be amended with insertions that “specifically require the CI Panel and the Minister to take into consideration any public comments and submissions when processing and deciding upon designation applications.”

COSATU supported the Bill’s provision that the Minister’s reports be tabled to Parliament directly and not only to the Joint Standing Committee on Intelligence (JSCI), as the JSCI was not subject to public scrutiny.

Discussion

The Chairperson said some civil society institutions had raised the issue of constitutionality very sharply. He asked what COSATU’s view on the constitutionality of the Bill was.

Mr Maake asked for an explanation on the differences between ‘basic’ and ‘essential’ services.

Mr Mhlongo referred to the Nedlac processes, and asked if there was agreement on how the Portfolio Committee on Police would be appraised of final agreements. Which Minister would be responsible -- would it be the Minister of Labour? Was COSATU’s only concern that the development of the Bill should not encroach on the individual or collective rights of COSATU members?

Ms Molebatsi asked for COSATU’s views on the composition of the Council and on the maximum penalties included in the Bill.

Mr Parks said he did not see unconstitutionality in the Bill, but members could ask the Constitutional Court about its constitutionality. From COSATU’s point of view it did not touch on COSATU’s right to strike or to protest.

COSATU was worried about the wording not touching on the declaration of essential services or minimum service level agreements. If a building was regarded as a national key point, the staff were not automatically part of that. There were minimum levels of service that had to be maintained.

A copy of the Nedlac report should have been sent to the Committee. Issues raised at Nedlac had been fed into the Bill

COSATU was comfortable that the Bill did not touch on its labour rights

It was happy with the CI panel, and the fact that a civilian, the Secretary of Police, would be chairing it.

He said the Committee could look at whether the maximum penalties proposed were too harsh.

The meeting was adjourned.