On Tuesday, 21 April, the Minister of Defence, Nosiviwe Mapisa-Nqakula, announced that the SANDF would be deployed to Alexandra township and other hotspots to assist the South African Police Services in combating the violent crimes associated with the wave of xenophobia which gripped South Africa over the preceding two weeks.
This is not the first time that the SANDF has been employed to assist with dealing with xenophobic criminality. In 2008 the same scenario played out.
The latest deployment follows assurances provided by government as recently as last week that police had the situation under control. Of course those assurances seem rather disingenuous given the fact that only three days later, an SANDF deployment was made.
Be that as it may, it remains useful to the very notion of the employing the SANDF in these scenarios. Personally, I have received many queries ranging from the concerned to the cynical – and from genuinely interested folk out there about matters such as the legal requirements for this kind of deployment, the operational command issues, the training and utilisation of troops. Of course, the most important question is as to the desirability of utilising the military at all in what is essentially a civilian issue. There were also the panicky Twitter calls of immediate troop intervention as many times as there were the activists jealously guardian civil liberties, expressing their complete horror at the very idea of military deployment in a civilian situation. Especially our friends in the media wanted to know what SANDU (the largest military trade union in the SANDF) had to say of this development and the possible trappings thereof.
These concerns and questions are all valid and have their own merits to one extent or another.
Let’s attempt to tread this minefield and work our way to the objective of getting to grips with the issues raised. As any Sapper would tell you, working your way through a minefield requires that you keep emotions in check, no matter your fears or doubts. I’d urge you to leave your preconceived ideas on this issue by the wayside for the moment while we head towards our objective. In the end you’d still be entitled to your opinion, but at least it would hopefully be a far more informed one.
It is important to keep in mind that there is hardly a country in the world and certainly no Constitutional democracy which I am aware of, which does not have some or other provision for the deployment of its military in certain civilian scenarios. The perception that South African law allows a dangerous exception compared to other democracies is simply wrong.
Having said that, it doesn’t mean that any of these countries (including ourselves) necessarily think that civilian military deployments are desirous or should be capable of being imposed unchecked. It is inevitable that all these countries might at some stage need military intervention internally and thus they have (as SA has) predetermined strict rules and checks and balances for same.
The Defence Act 24 of 2002 provides in Section 19 thereof that the SANDF may be employed to assist the SA Police Services in, among other things, the combating of crime and to maintain law and order. If such a step is taken the section also requires that it be announced by publishing same in the Government Gazette within 24 hours of such employment. In addition, the Constitution of SA in Section 201(2) directs very clearly that only the State President may direct the SANDF to assist the SAPS and in the latter event, the State President needs to inform Parliament of his decision. Should Parliament not be in session within the first seven days following the decision, the president needs to report his call to the Parliamentary Defence oversight committee.
In his report, so the Constitution and also Section 18 of the Defence Act dictate, the president shall inform Parliament of the reasons for his decision, the number of troops involved, the areas in which they shall operate, the duration of such employment and the projected costs thereof.
Note that such a report is a public document open to scrutiny of any member of the public and the media as well as, of course, every Member of Parliament.
Parliament has the right, in terms of Section 18 of the Defence Act, to override the president’s decision by either varying it or reversing it completely.
The idea behind these requirements is obviously to prevent a reoccurrence of dictatorial behaviour, where the military is employed at the drop of a hat and or clandestinely by the State in a way that requires neither public accountability nor rationale. Obviously in every such utilisation of the SANDF the mentioned procedures are to be complied with. If it is not, anyone is open to bring a High Court application setting the decision aside for unlawfulness and one would on all probability be successful on an urgent basis.
In South Africa the human rights and civil liberties activist movements are plentiful. They jealously guard against Constitutional violations. I am not convinced that the State would be able to pull off an indeterminable and unlawful military deployment given the ferocious battle axes the culture of activism has ground over the past two decades. Hopefully this addresses the fear some had that military deployment in civilian matters may continue unabated.
Whether one is a supporter of government or not, one has to be fair about the facts. The scare mongering of some – that this deployment just shows that government is hellbent on eventually using the military to fight its political battles – is, with respect, a bit fanciful. In the almost six years the Zuma regime has governed, it has not exactly gained a reputation for deploying the SANDF in civilian scenarios. Excluding border patrols (which is not assistance to police and anti-poaching measures inside the Kruger National Park) one would probably be stretching the truth to conclude that SANDF deployments in Civvie Street is proliferating or occurring commonly, more specifically so under the current watch of President Zuma. It simply is not the case.
Granted, of course, even if I am correct on the latter score, it still doesn’t mean that military deployments in civilian scenarios are in principle desirable or promotable. Not at all. The fact is, however, one shouldn’t seek to draw a conclusion which fits ones political bias rather than fitting the objective facts. Many of the critics and fear mongers of the current Alexandra deployment were quick to denounce the same government for refusing Zille’s call to deploy the SANDF during the Cape Flats gang strife.
The argument that a government might abuse the military to achieve its own objectives is one which is universally valid, not only in South Africa. It is always possible anywhere and any time. To raise it as a real possibility in South Africa right now, without the objective data to justify the conclusion, in all likelihood says more of one’s political views of South Africa ‘s government than it does about one’s propensity to evaluate facts objectively.
Lastly, on this particular score, bear in mind that South African soldiers are not zombie-like creatures who mindlessly avail themselves to unlawful conduct or orders.
The fact that one in three soldiers belongs to the military Union SANDU, which has a fierce human rights protection record and a reputation for not taking cover on matters of national concern, says a lot about the collective awareness of Constitutional rights and obligations among soldiers. Unlawful deployments which are at odds with the Constitution will simply not be tolerated by the very union of soldiers themselves. While on this topic, let me state clearly (as many have asked me about it) – SANDU does not opine on the merits of a deployment decision. It is not the mandate of a military Union to question the merits of an operational decision. SANDU will, however, fiercely fight against a procedurally unlawful decision to deploy because that directly places soldiers on the ground at risk of legal liability and flouts the Constitutional order. SANDU will also vehemently defend the concerns of soldiers such as equipment malfunction or ration shortages whilst they are deployed.
Many are also concerned as to who is in command of the soldiers deployed in Alexandra. In this regard, the Defence Act, in Section 19, also clearly states the SANDF is to assist police under guidelines of, firstly, cooperation – reached between the SAPS and the SANDF and secondly, command and control of SAPS and SANDF members as determined between the Chief SANDF and the Police Commissioner. Anyone from the public and the media is of course free to request a copy of those guidelines. The possibilities in those kinds of documents vary according to operational specific needs so it is difficult to, in each deployment, provide a generalised response. Simply put, depending on the practicalities of each operation, ad hoc decisions will be made as to the ground leader of the ops group carrying out the operation (for example searching a hostel) the commander of the ops overseeing the execution of that ops and the overall commander of the deployment. These ad hoc decision will have to be within the prescripts of the mentioned guidelines. It is, however, not permitted for the SANDF, given the prescripts and wording of the relevant sections of the Defence Act, to simply usurp sole command to the exclusion of the police and go into a war waging mode.
The SANDF includes in its routine training and retraining courses relating to operational law. If there is one concern, then it is the fact that there is no way of knowing how regular each soldier is refreshed in these matters.
These are essential issues, as Section 20 of the Defence Act states that soldiers so deployed to assist police have the same powers as a police official, most importantly the Criminal Procedure Act’s powers of arrest and using the necessary force (where and if required) to arrest. One simply doesn’t know whether the soldiers currently deployed have recently undergone or have been refreshed in these courses. The Defence Act does, however, in Section 20, require that such training be provided prior to deployment. Of some comfort is the fact that in all operations of this nature, the soldiers involved are always accompanied by the police command element and act on his/her instructions as far as law enforcement is concerned.
Importantly, soldiers are only (again Section 18 of the Defence Act) allowed to do with their police powers what is necessary for successful execution of the specific operation, prevent crime, maintain law and order and preserve internal security.
The last issue is the question of desirability of military deployment. In Constitutional democracies, as in South Africa, there is general consensus that such deployments require circumspection – for this reason the Constitutional checks and balances were set in place. The last thing a self-respecting democracy wants is to create the perception that its military is being abused for political purposes or that its government has lost control over a rising population and is hanging onto power but for its military. For this reason, the Defence Minister’s remark that the State was “taking back power” (presumably from the clutches of xenophobic criminals) is ill conceived. In all probability the correct version is (or should have been) that by taking the very unusual step of deploying the SANDF, the State was reaffirming its legitimate power to unruly elements. But then, neither our Defence Minister nor her Department have exactly built themselves an impressive communication or public relations reputation.
Logic tells one that the current deployment was in all probability a two-pronged strategy – firstly a show of force to unruly elements (who probably don’t take the SAPS abilities too seriously, as the latter’s performance in combating crime in townships is dire) and secondly, to provide visible reassurance to the diplomatic sabre rattlers in the rest of Africa that the issue is considered very serious by the South African government. So serious, in fact, that it invokes the singular unusual step of calling in the military. This might also explain, in part, the seemingly contradictory statements of Friday last that the situation was under control of the police and that the military was not needed. The volatile nature of behind the scenes diplomatic sparring can change a game in an instant.
So what happened between Friday and the deployment of Monday? Emmanuel Sithole’s murder on the front page of the Sunday Times – that’s what. It flew in the face of Friday’s assurances. It tore SA’s diplomatic credibility with affected African nations to tatters – the extent of the damage those photographs caused was exposed by Zuma on Monday as he made the infamous remark that it ‘made SA look bad’. No doubt the shattered credibility with our African friends played a huge role in the weekend decision to deploy.
Whatever the reason for this deployment decision, let us guard that the law is obeyed in all respects, by the president, SAPS and the SANDF, while we support and trust our fellow South Africans in uniform to stop the violence and criminality. The decision has been taken – now it is up to all of us to keep watch over its execution. DM