How inspiring it is to watch one generation building on the achievements of another. In this case, an African National Congress (ANC) government embracing the jurisprudence of secrecy so finely spun by its predecessors, the National Party (NP).
One can just imagine the worried frowns in President Jacob Zuma’s cabinet when City Press revealed that R238-million of public funds was to be spent tarting up his Nkandla compound. Embarrassing profligacy in economically straitened times, especially as Zuma manoeuvres for a second term.
So, given that anti-media legislation is stalled, what is the cabinet to do? Up shoots former Nat leader Marthinus Van Schalkwyk, knees knocking imperceptibly below the hem of his khaki shorts. “I think I might have the solution’, he fawns, “in the old days we had a law … and best of all, it has never been repealed.”
Oh, and what a law the National Key Points Act of 1980 is. It made it a criminal offence to report about any “premises, building, installation, industrial complex, soil or water surface” that had been designated a National Key Point (NKP).
Cannily, there would be no actual list of designated NKPs for journalists to consult. The only way to identify one was to “approach, inspect, pass over, be in the neighbourhood of, or enter” and see what happened next.
Anything, anytime, anywhere – civilian or government, proactively or retrospectively – could on the say-so of an ancient regime defence minister be declared an NKP.
Despite Nkandla often having been in the news, at the wave of a new South Africa police minister’s hand a dusty outpost could transmogrify into a state secret, Kortbroek enthused.
And so it came to pass. The government declared Nkandla an NKP, subject to blanket secrecy, and that the police would investigate how City Press had obtained “top secret” information.
The useful aspect to the Zuma government’s determination to bring back the past – NKPs, teargassing and shooting the disaffected, and harassing journos – is that the old stuff becomes useful again: flack jackets, gas masks, a bad attitude to authority, and, in my case, a well-worn copy of Kelsey Stuart’s The Newspaperman’s Guide to the Law, disinterred from dusty storage.
In this out-of-print classic, circa the grim 1980s, the great defender of press freedom is scathing about the vagueness of NKP legislation, which if challenged today would assuredly fail Constitutional challenge.
The Act, for example, does not define what it means “to approach” or “to inspect” an NKP. It is “similarly silent on the degree of intensity of gaze which distinguishes mere looking at an NKP and inspecting it”, Stuart writes drily.
Stuart notes that, as City Press now knows, a journalist could write “without having the faintest idea that they are writing about an NKP, or that they are using information … in a way that some official may judge to be prejudicial to the safety or interests of the Republic.”
The NKP Act has, in fact, been used at least twice since 1994, according to the Right2Know campaign. in 2003 it was used to arrest strikers demonstrating outside Cape Town airport – although they were not prosecuted – and in 2007 to deny permission to the Treatment Action Campaign for a demonstration near the Reserve Bank.
The most recent usage, to stymie embarrassing media reports and to flush out whistleblowers is an unhappy escalation. That’s the authoritarian streak in any government: have legislation, will use it.
But the NKP legislation might be less useful than Zuma’s securocrats think. Stuart in 1982 deals with the possible consequences of the state demanding a journalist disclose their source of information regarding an NKP, a contravention punishable with up to three years in jail.
“Interestingly, it is not an offence to fail, refuse or neglect to respond to the minister’s order,” writes Stuart. “Ironically, a journalist could protect his sources of information simply by refusing to comply”.
A full 30 years on, it is a ploy that City Press might yet have to resort to.
Given the ANC’s growing penchant for media curbs, it may be time for an updated edition of Stuart’s legal gem.
Referenced: The Newspaperman’s Guide to the Law, Kelsey Stuart, Butterworths, 1982