South Africa

PARLIAMENT

Bheki Cele justifies armed police in the House using apartheid-era National Key Point Act

Bheki Cele justifies armed police in the House using apartheid-era National Key Point Act
Minister of Police Bheki Cele. (Photos: Gallo Images / Darren Stewart / Leila Dougan)

Police Minister Bheki Cele told MPs he did not order armed, armoured and camouflaged police into the House when EFF MPs disrupted the State of the Nation Address, but justified security force action with the apartheid-era National Key Point Act.

“In accordance with the National Key Point Act (1980), any National Key Point should have a protection force. Therefore, the national Parliament of South Africa is protected by the SAPS,” was Police Minister Bheki Cele’s reply in Wednesday’s peace and security cluster Q&A to the EFF’s question about whether he had called in the police during President Cyril Ramaphosa’s State of the Nation Address (Sona) on 9 February. 

Cele went on to maintain that the police derived their power directly from the Constitution, section 205(3), which in his books meant whatever a court may have ruled could not trump this provision. 

“I don’t think the decisions of the courts are above the Constitution unless they order the change of the Constitution. The standing authority of the SAPS is derived from section 205(3) of the Constitution: ‘The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law’.” 

And during the follow-up questions, it was back to apartheid references to support the Sona police intervention, this time the killing of apartheid prime minister HF Verwoerd. 

“The Parliament of the Republic of South Africa does have a history of where the prime minister was killed in the House. So… proactive [steps] of the police that happened on the day should be part of the prevention and protection of the inhabitants as this is instructed by the Constitution.” 

Cele’s statements in the House on Wednesday show some nifty shuffles around South Africa’s constitutional democracy. 

And that includes the police’s constitutional responsibility to uphold the law, including the 2004 Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act that gives sole control of everything in the parliamentary precinct to the presiding officers.  

During the Sona, National Assembly Speaker Nosiviwe Mapisa-Nqakula, a one-time defence minister, called in the security forces as Clause 4 of that Act permits — only in cases of an imminent threat to life and property. 

MPs will take their arguments to the rules committee on whether a few placard-carrying EFF MPs were an imminent threat to the life of President Cyril Ramaphosa. However, the speed with which what seemed to be presidential counter-assault unit members were in the House, as well as the presence in the corridor of the riot cops, as the Public Order Police are colloquially known, almost smacked of pre-planning.

Read more in Daily Maverick: “Armed police in the House set the stage for Ramaphosa declaring a National State of Disaster” 

It’s on public record that the security planning for Sona is headed by the NatJoints, the National Joint Operational and Intelligence Structure of spooks, soldiers and cops that’s not established in law or regulation and operates without parliamentary or independent oversight.  

NatJoints was also central in the Covid-19 two-year lockdown executive decision-making in the National Coronavirus Command Council, and more recently it’s been active at Eskom, according to Wednesday’s live-streamed presidential spokesperson’s briefing. 

NatJoints exists in the current security architecture that aside from the statutory entities like the State Security Agency and the SA Police Service also includes the National Security Council which Ramaphosa reinstituted on 27 February 2020. 


Visit Daily Maverick’s home page for more news, analysis and investigations


Deepening securitisation of society

Cele’s comments come at a time of not only the normalisation of armed, balaclava-wearing police in Parliament, but also signalled a deepening securitisation of not only South Africa’s institutions, but broader society. 

“According to the police… they felt they had to respond. It was based on Section 205(3) of the Constitution,” said Cele. “Parliament is a protected area because it is a key point. All key points are protected and there must be a response to anything that comes close in any form of giving the intention of there might be a problem in that particular institution. That’s what happened on that particular day.” 

But the Constitutional Court, arbiter of South Africa’s supreme law, in March 2016 ruled that even the threat of arrest would have a “chilling effect” on Parliament and its constitutional duty of holding ministers and state institutions to account.

Read more in Daily Maverick: “ConCourt rules: Thou Shalt Not Remove or Arrest an Honourable Member” 

“For Parliament properly to exercise its oversight function over the executive, it must operate in an environment that guarantees members freedom from arrest, detention, prosecution or harassment of whatever nature. Absent this freedom, Parliament may be cowed, with the result that oversight over the executive may be illusory.” 

And while Cele on Wednesday may well have wanted to put the policing powers of section 205(3) of the Constitution above all, section 198 of the Constitution — the governing principles for security services — states: “National security must reflect the resolve of South Africans as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.” 

Cele’s court denialism during Wednesday’s parliamentary peace and security Q&A takes South Africa back — in the Jacob Zuma administration, then police minister Nathi Nhleko maintained that court judgments were opinions in an effort to back up his choice for the Hawks, Mthandazo Ntlemeza, whom the Pretoria High Court in September deemed “lacking in integrity” and “biased and dishonest”. 

Repeated referencing the Constitution to justify police action of all sorts not only ignores the constitutional provision of three separate and independent spheres of state, each with its own particular constitutional responsibilities, but twists the intricate mesh of constitutional rights and obligations.  

The police’s duty to fight crime, protect inhabitants and maintain order does not trump, for example, the Bill of Rights’ provisions for dignity, the right to peaceful protest or the freedom and security of persons. 

Cele’s statements to MPs — from massaging constitutional provisions to invoking National Key Point draconian measures — send a chilling signal, as does South Africa’s soaring murder rate. DM

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  • Dennis Bailey says:

    And Cyril wants to promote him to Minister of what? Intelligence? God help us.

  • Cunningham Ngcukana says:

    The author is incorrect to refer to the legislation as an Apartheid era legislation because our state is a successor state to the Apartheid state and that parliament she would have to refer to it as the Apartheid parliament building. In short the law is valid until it is repealed even if it was passed during Apartheid. We would be a lawless country if we were to follow her logic. The issue is whether the law is still relevant or appropriate and if so, is it appropriately applied. Parliament is a National Key Point and the legislation remains appropriate but the context in which Cele a well known pick and pay general applies it is inappropriate. It applies to the buildings and the work done there and not to members of parliament in the discharge of their duties including being rowdy in doing so. It is very interesting that he did not know that parliament was a national key point when it was burnt and only knows it when it relates to his stomach. We have a Constitutional Court judgement on the presence of the police inside the National Assembly and Parliament when it is in session. Cele has to familiarise himself with this judgement and the National Key Point Act he is illiterate on. When de Ruyter was poisoned, his police to brass did not know that he was the CEO of al national key point and sent police who apparently never read his statement before going to him. For this ignorance and poor policing, Cyril sees the fellow fit to be Minister of No Intelligence.

  • Andre Toit says:

    Circus Clowns antics bring forth tears of laughter,but these ANC Clowns
    in Goverment only bring forth tears of frustration.

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