COSATU statement on the draft National Key & Strategic Installations Bill 2007 04-07-07

 

COSATU statement on the draft National Key Points and Strategic Installations Bill 2007

The draft National Key Points and Strategic Installations Bill [Notice 432 of 2007], was published by DSS in the Government Gazette on 18 April 2007 as a working document for input from interest groups. COSATU's Parliamentary Office made a submission to the Department on the draft Bill and highlighted a number of concerns that need to be addressed.

The objective of the draft Bill is to protect areas deemed to be of strategic interest against sabotage or other forms of attack by empowering the Minister to declare them as National Key Points, Strategic Installations and Places of Importance. Once an area has been so declared the draft Bill give the Minister (including an owner of such an area) powers to take steps which he or she may be consider necessary for efficient security of such places. Any act that disrupts areas so designated or hinders the Minister or an owner in taking steps required under the Bill is an offence.

COSATU has raised concerns with regard to the powers assumed by the Minister under the Bill including the power of the Minister to take any steps which in his or her opinion may be necessary in respect of the security of these areas. Such wide powers without objective oversight can lead abuse by the executive as it subjectively acts without accountability and control. Of greater concern is the manner in which the Bill purports to give private individuals, in their capacity as owners, the right to take any steps which in their opinion they think necessary for the security of such places. Even with the requisite oversight structures it is difficult to comprehend how such enormous powers assumed by private individuals can be acceptable where the focus is on national security.

Another area of concern relates to the vague wording used in creating offences which appears to criminalise the exercise of labour related constitutional rights. Under the Bill any act that hinders an owner taking steps in relation to efficient security is an offence. Similarly, any conduct that threatens a National Key Point amounts to an offence. Many of the National Key Points in South Africa are also plants or companies that may be at the centre of industrial action and general protests actions such as in 2004, when members of the South Africa Transport and Allied Workers Union went on strike at the Johannesburg and Cape Town airports over a wage dispute. It is easy to see how industrial actions like these will fall within the vague formulations of offences under the Bill. As such the Bill as it stands is unacceptable as it may be used to impede the Constitutional right of every worker to strike as well as other labour rights such the rights to assemble, to demonstrate, to picket etc.

It is also disappointing that the Bill employs similar wording to the current National Key Point Act 1980 in defining key terms that relate to the preservation of security of national key points. For example an incident on a national key point is taken include - 'any occurrence, terrorism or any other criminal activity which endangers, compromise, disrupts or threatens a National Key Point, Strategic Installations or Place of Importance'. Both occurrence and terrorism are not defined in the Bill. One could foresee how the inclusion of 'any occurrence' within the definition of incident could be interpreted as including picketing workers or other forms of general protest which are perfectly lawful. Thus in the absence of specific definitions, it is possible to include activities, which though unrelated to security concerns of national key points, may be construed as an 'incident' and used to suppress political dissent for example arising from legitimate protests involving industries tied to national key points.

COSATU is also concerned about the criteria used by the Minister in declaring areas to be national key points, strategic installations or places of importance. Some of the criteria used such as - where 'loss may disadvantage the Republic nationally or internationally' or 'safety and security is of paramount importance' - are far too wide and fail to place adequate limitations on the discretion that will be exercised by the Minister tasked with its implementation.

Further, under the Bill, national key points can also be declared where loss or disruption may compromise the general administration or provision of essential services. The definition of 'essential services' used in the Bill is that as defined in the Labour Relations Act (LRA), 1995. As the substance of the Bill relates to security and not labour relations, we feel that the LRA definition cannot be poached for inclusion in this Bill.

In addition, the definition of essential services in the LRA has been criticised as being too broad and remains contentious within the labour sector. Inclusion of essential services in the Bill not only erroneously ties up two separate concerns - security and labour regulation, but also has the effect of pre-empting ongoing negotiations in relevant collective bargaining councils.

It should be noted that in South Africa, until 1994 several instruments of the legislative framework relating to internal security were used by the state during Apartheid to oppress the majority of the population. COSATU believes that there is a need for a comprehensive review of existing legislation in line with our human rights-based Constitution. We believe that such a process should have preceded the Bill and still needs to take place. The concerns raised serve as illustration for the need of such a process given the potential problems that would arise around the Bill.

These concerns are merely technical but touch on the substance and architecture of the Bill. It is on this basis that we have proposed to the DSS a fundamental redraft of the Bill before we can make further comments on a substantially reworked draft Bill. We also propose that the South Africa Human Rights Commission be requested to scrutinize the Bill to ensure compliance with the Bill of Rights, and to promote an approach which is consistent with human rights.

For further information please phone Kenneth Wyne Mutuma at the COSATU Parliamentary Office on 021 461 3835