Has the president used the defence force legally?

To deploy the army is an exceptional measure. It implies that the police force is unable to control a situation that threatens a country’s security and well-being.

The announcement that the South African National Defence Force was to be deployed to quell the xenophobic attacks in April was welcomed by many South Africans. The public assumed that the main purpose was to support the police in preventing further xenophobic attacks from taking place.

But once the xenophobic violence calmed down, and the military remained, it began to appear that the purpose of deploying the army was to seek out and arrest undocumented foreign nationals under the guise of a crackdown on crime.

In principle, the President has the discretion to order the deployment of the military to assist the police in certain limited circumstances. The Constitution states that SANDF’s main objective is the defence and protection of South Africa in accordance with the principles of international law, which would include human rights treaties to which South Africa is party.

Beyond this objective, section 201(a) of the Constitution states the President can call for the deployment of the military to support the police in certain circumstances. Section 19 of the Defence Act 42 of 2002 details these circumstances and provides that the SANDF, “may be employed in co-operation with the [SAPS] in terms of section 201(2)(a) of the Constitution in the prevention and combating of crime and maintenance and preservation of law and order within the Republic”.

Section 18 also provides that the SANDF can be employed within South Africa’s borders, “in order to preserve life, health or property in emergency or humanitarian relief operations; to ensure the provision of essential services; to support any department of state, including support for purposes of socio-economic upliftment; and to affect national border control.”

The procedure for this is set out in section 201(3) of the Act. When the SANDF is employed to work alongside the police, the President is required to promptly inform Parliament and provide “appropriate detail” on the purpose and logistics of the deployment, namely:

(a) the reasons for the employment of the defence force;
(b) any place where the force is being deployed; 
(c) the number of people involved; and 
(d) the period for which the force is expected to be employed.

In his letter to Parliament on 23 April 2015, President Jacob Zuma provided scant detail on the reasons for the deployment and on where the military would operate. The letter simply stated that the reason for deployment was “to maintain law and order”. The statement referred to “Kwazulu-Natal, Gauteng and any other area in the Republic of South Africa as the need arises,” and stated that 338 people would be employed between 21 April 2015 and 30 June 2015.

Xenophobic violence was not mentioned at all in the statement issued by the Presidency. It was only mentioned by the Defence Minister when she made a public announcement that the military would be deployed.

Many provisions in the Constitution aim to prevent a repetition of the abuses of power of the apartheid government, when the military could be used as a tool against civilians. It is therefore imperative for the President to justify his decisions legally through the framework of the Constitution.

It may be argued that the President failed to provide the requisite “appropriate detail” required by section 201(3) and therefore did not meet the constitutional requirements to deploy the army.

This issue was raised by the South African National Defence Union (SANDU) in a statement on Thursday, 7 May. SANDU rejected the use of SANDF personnel in the search and arrest operations in Bellville on that day. SANDU said the use of SANDF soldiers to find and arrest foreigners without the right documents was unlawful because it was not in line with the purpose stated in the president’s letter.

The government has repeatedly denied accusations that the use of the military was targeted at the search and arrest of foreigners, stating that it is aimed at securing law and order across the country. In fact, possibly due to public pressure, the army has since been deployed to known crime-stricken areas such as Manenberg and the Cape Flats.

But most of those arrested are foreign nationals and the question that needs to be raised is whether the way the army is being used is legal and rational. The initial deployment of troops to areas not known as crime hotspots shows how dangerous it is to allow the military to be deployed under such a broad mandate. This sets a dangerous precedent.

Furthermore, even if the deployment of the military is accepted as legal because the President has the discretion to order it, this discretionary power must still be exercised in line with the Constitution. The legal exercise of power cannot justify the unconstitutional manner in which it is exercised.

Immigration-related offences and penalties are governed by the Immigration Act. This Act aims to ensure that, “immigration control is performed within the highest applicable standards of human rights protection”; “xenophobia is prevented and countered” and, “a human rights-based culture of enforcement is promoted”.

Any action taken to enforce the Immigration Act must serve these objectives. The fact that Lawyers for Human Rights had to go to court to get access to arrested foreigners is woefully short of the “highest applicable standard of human rights protection.”

Detention in the absence of a warrant and the denial of legal representation echo South Africa’s apartheid history and have no place in our constitutional democracy.

There is also a practical issue: the army does not investigatory powers. This increases the risk that asylum seekers and refugees whose permits are invalid only because of inefficiencies and unjust policies in the Department of Home Affairs may be arrested. In many cases, the question of whether or not an individual is “illegal” is not as simple as it may seem.

The use of the military beyond the quelling of xenophobic attacks was possible because the President framed the deployment in such broad terms. This has opened the way to legitimising the abuse of a power that should only be used in controlled circumstances. It has allowed institutionalised xenophobia to masquerade as crime prevention. For this reason, SANDU’s statement rejecting the search and arrest function of the military should be taken seriously.

Wallis is presently completing her Articles of Clerkship through the Legal Resources Centre (LRC). Views expressed are not necessarily GroundUp’s.