Protection of Critical Infrastructure Bill PRESENTATION TO PORTFOLIO

Protection of Critical Infrastructure Bill PRESENTATION TO PORTFOLIO COMMITTEE ON POLICE BY ZAKHELE MBHELE, MP

Objects of the Critical Infrastructure Bill • To repeal the National Key Points Act (NKPA) 102 of 1980 and related legislation; • To provide for a Register containing the areas declared as Critical Infrastructure (‘Key Points’ under current legislation); • To set out the rights and duties of owners of Critical Infrastructure, provide for the limitation of the liability of the State and provide for parliamentary oversight over the Critical Infrastructure Board (the Board);

Objects of the Critical Infrastructure Bill • To provide for the establishment, composition, functions and duties, meetings, financing and reporting of the Board; • To provide for the suspension and removal of Members of the Board, to provide for the determination and declaration of Critical Infrastructure and ensure that security measures are implemented at Critical Infrastructure; and • To create offences and penalties and provide for transitional arrangements following the repeal of the National Key Points Act.

Historical Context of the NKPA • The NKPA was enacted in 1980 by the Apartheid government in response to what it characterised as acts of sabotage and terrorism. • The Act was subsequently used as a tool of suppression. By design, the Act was intended to protect and strengthen the Apartheid State and gave the Apartheid-era Minister of Defence broad authority to ‘declare’ any place in South Africa a National Key Point. This responsibility is presently vested in the Minister of Police. • The Act grants wide and far-reaching powers to the Minister of Police without scrutiny. I would submit that this is at odds with the values of open and transparent governance which underpin the Constitution.

Historical Context of the NKPA • Given the nature and underpinnings of the NKPA, there is a need for the repeal of the entire Act as it has no place in a constitutional democratic South Africa. It should not have been permitted to exist on the statute books for this long. • The desirability of such legislative reform was previously indicated by former Police Minister Nathi Mthethwa who initiated a review process but we are yet to see the outcome of that. • Thus, the presently proposed Bill seeks to protect infrastructure critical to the national security of the Republic in a manner consistent with the Constitution in an open and transparent society.

Misuses of the Act • Presently, the NKPA has permitted an environment where critical infrastructure and related installations can be used to benefit or protect partisan agendas and conduct and conceal corrupt activity under the guise of national security considerations. • The matter of security upgrades at the President’s private home in Nkandla, in so far as it relates to the application of the Act, provides a case study which illustrates how the provisions of NKPA may be used unjustly to justify the burial of information and to frustrate oversight.

A Balancing Act • It must be conceded that, as is the case in any state, there may very well be a reasonable need to classify some information relating to key installations or facilities for security purposes or with the view of preserving the public interest. • As the Southern African Catholic Bishops’ Conference stated in 2013, this invites us to ask: o Firstly, how does one reasonably balance the need for security with the public’s right to information? I would add the need for transparent government to this consideration; and o Secondly, what happens when the authorities use their powers in terms of such legislation for ulterior motives?

Features of the Protection of Critical Infrastructure Bill

The Critical Infrastructure Board The Bill looks to establish a board to oversee, determine and declare the functions surrounding the protection and classification of critical infrastructure installations, as opposed to the Police Minister having sole discretion to declare which areas or structures need government protection.

Determination of Critical Infrastructure A site must fall into one of several categories to be considered Critical Infrastructure contained in clause 13, inter alia: • Areas used for the storage and development of chemical/biological warfare agents and defence capabilities against the effects of weapons of mass destruction; • Facilities associated with computing, telecommunications and ICT; • Emergency-related medical, police, fire and rescue systems; • Energy-related facilities and infrastructure; • Financial services; • Health care services.

Determination of Critical Infrastructure • Once a site has been determined as falling within a relevant category for consideration as critical infrastructure, the vulnerability of the site must be determined considering available intelligence and the consequences to national security in the event that such a place or area were to be compromised. • Upon the proper consideration of these factors, the Board will then declare the place or area as Critical Infrastructure and will determine the appropriate security measures that must be in place at the specified place or area. • The Board will also charged with reviewing Critical Infrastructure each financial year to prevent Critical Infrastructure receiving security measures and status which are no longer required.

Parliamentary Oversight • Chapter 6 of the Bill allows for much needed parliamentary oversight to counteract unfettered executive power as contained in the NKPA. • The Bill requires that two types of reports be tabled by the Minister of Police to the National Assembly.

The unclassified report The Minister is required to table to Parliament, on a quarterly basis, an unclassified report outlining – • the total number of existing Critical Infrastructure; • the name of each Critical Infrastructure; • details of whether each Critical Infrastructure is state-owned or privately owned and, where applicable, which Ministry is responsible for its management; and • the name of any new Critical Infrastructure determined in the review period.

The Classified Report In addition, the Bill requires that a substantially more detailed report be made available to a closed meeting of this Committee on all activities performed in terms of this Act, inter alia – • the declaration and determination of each Critical Infrastructure; • the allocation and expenditure of funds in the fulfillment of functions under this Act; • the determination of specific security measures for each Critical Infrastructure; • the implementation of security measures at each Critical Infrastructure; • the number of security officers deployed to each Critical Infrastructure;

The Classified Report (cont. ) • the status of reviews conducted by the Board of the vulnerability and security measures taken at Critical Infrastructure sites in terms of section 15(1) and (2); • the status of owner submissions made in terms of section 14(1) in the determination of security measures to be implemented at critical infrastructure sites; and • any delegation of any of the Board’s powers in terms of section 9(2). The requirement of these two lists seeks to strike a balance of respecting the public’s right of access to information, ensuring parliamentary oversight and preserving reasonable security measures at critical infrastructure sites.

Register of Critical Infrastructure • Clause 16 of the Bill requires the Board to maintain a comprehensive up-todate register which shall be known as the Register of Critical Infrastructure. • The register allows for various specified persons – members of the Board, members of this committee and persons possessing the relevant security clearance and permission of the Board – to have access to various details pertaining to critical infrastructure; including reasonably classified information. • The precise shape and contours of the information which is to be contained in the specified register is to be determined through regulations.

Regulations The Bill also seeks to introduce changes to the way regulations are formulated by the Ministry in relation to Critical Infrastructure. In recent years, a tendency to grant unfettered regulatory powers to Ministers to implement regulations which have significant and far-reaching consequences for the implementation of legislation has been noted. Indeed, the NKPA suffers from a similar defect. I would submit that such a practice weakens Parliament’s oversight function and undermines its Constitutional mandate. This practice goes against the rule of law requires which requires that the law be certain, and that the exercise of powers and discretions under the law not be undertaken in an unrestricted manner.

Regulations • Clause 21 marks a break with this practice by requiring that the formulation of regulations be a consultative process between the Minister and the National Assembly. • This not only encourages a transparent process in the formulation of the specified regulations but also further strengthens Parliament’s position as a legislative and oversight body. • Following such a consultative process, regulations made in terms of this Bill are to be tabled before Parliament 30 days before such regulations are published for the Committee’s consideration.

Transitional Arrangements Finally, clause 22 of the Bill addresses transitional arrangements aimed at preserving the security of existing “National Key Points” under the NKPA and ensuring they are given the appropriate protection. Any proclamation, regulation, notice, approval, authority, licence, permit, certificate or document issued, made, given or granted in terms of the National Key Points Act, shall be deemed to have been issued, made, given, granted or taken under the corresponding provision of this proposed Bill. The Minister is further required to deliver a list of National Key Points to the Board within five days of it being fully appointed so that the Board may within 275 days determine which of those National Key Points meet the requirements of Critical Infrastructure.

Conclusions The Ministry of Police has been aware of the need for such legislative reform for approximately 2 years. In his budget speech to Parliament in May this year the Minister said - “One of the milestones registered thus far is the National Critical Infrastructure Bill, a piece of legislation that seek to repeal the National Key points Act, Act 102 of 1980 which currently is with the Cabinet. ” Yet, by the introduction of this Private Member’s Bill in August, no meaningful progress on the repeal of the NKPA had seemingly been made by the executive.

Conclusion As conscientious legislators, it is incumbent on this committee, cognisant of its duty to ensure that our legislative framework is in line with the spirit, values and prescripts of the Constitution, that we act to remedy the present situation regarding the NKPA. I would submit that this Bill is the first step towards fulfilling that duty and I would invite both this committee and the Ministry to use this present opportunity provided by the Bill to engage in a substantive consultative process of repealing the National Key Points Act and instilling security legislation which speaks to our nation’s Constitutional ideals.