Legal experts question the legality of using the South African National Defence Force (SANDF) in civilian policing operations, as has been done in the Western Cape and Gauteng. Legal experts have slammed recent deployments of the military in civilian areas in Johannesburg and Cape Town, saying they are “unconstitutional” and “intimidatory”, the Cape Times reports today.
Constitutional law professor Pierre de Vos told the paper only the president was constitutionally empowered to authorise the deployment of the defence force. Paul Hoffman, of the Institute for Accountability in Southern Africa, added that the deployment of two armoured vehicles to a protest involving fewer than 50 people in Khayelitsha recently limited people’s right to protest. “To call in the army is excessive, intimidatory and quite unnecessary. It’s the job of the police to prevent crime. The army is used for foreign invasion,” Hoffman said.
However, both the defence ministry and police have defended the deployment of the military, saying that in recent events the army had moved in either at the request of the SA Police Service (SAPS) or through the “national joint operations centre”, which was activated during the 2010 World Cup, the COP17 climate talks in Durban in December and the ANC centenary celebrations earlier this month.
De Vos noted Section 201 (2) (a) of the constitution states: “Only the president… may authorise the employment of the defence force in co-operation with the police service.” Earlier this week, Ministry of Defence spokesman Ndivhuwo Mabaya told the Cape Times the law allowed “for soldiers to do anything, as long as they are asked by the police”. Mabaya said the deployments were authorised by a presidential proclamation he said was made in “2001 or 2002”. “Imagine if, every time the police want to call on soldiers, they must call on the president,” Mabaya said. “It is standard procedure that in the course of duty, police can ask the military to assist them.”
In an e-mailed response to the Cape Times yesterday, Mabaya said: “The president has approved, in 2001 or 2002, for the SANDF to support the SAPS as and when required. There is a co-operation agreement in this regard and it has no expiry date. That approval was tabled in Parliament then (2001/2002). Within this co-operation agreement approved by the president, the National Joint Operations Centre coordinates any deployment.”
The University of Cape Town constitutional law professor told the Cape Times he was not aware if such a proclamation existed, but even if it did, it would be unconstitutional. “You can’t make a general proclamation. The constitution and the Defence Act say the president must authorise (each) new deployment (of the defence force).” De Vos said, in authorising the employment of the defence force, the president would also have to table “the reasons for the employment of the defence force, any place where the force is being employed, the number of people involved and the period for which the force was expected to be employed”. This has to be done “promptly” after deployment.
In the event of Parliament not sitting during the first seven days of the defence force being deployed, he would have to give these details to the National Assembly committee on defence, De Vos said. “The president – or anyone – can only exercise the power given to (them) by the constitution. The old guard officials never worked like that, so they don’t understand this, and officials appointed since democracy seem to take their cue from the old guard, who don’t understand that the constitution is supreme,” he said.
He added that the idea of a blanket authorisation of employment of the defence force “subverted” the meaning of the constitution or law. “The whole section (200-204 of the constitution) is to prevent the situation (which) occurred in apartheid, when the military was used against civilians, to make sure the military will not be used to intimidate citizens and their right to protest. A critical provision of the constitution is being ignored,” he said.
Presidency spokesman Mac Maharaj referred all inquiries to the Department of Defence.