The Public Protector cannot realise the constitutional purpose of her office if other organs of State may second-guess her findings and ignore her recommendations. Section 182(1)(c) must accordingly be taken to mean what it says. The Public Protector may take remedial action herself. She may determine the remedy and direct its implementation. It follows that the language, history and purpose of s 182(1)(c) make it clear that the Constitution intends for the Public Protector to have the power to provide an effective remedy and direct its implementation.
An unconfirmed number of South African troops remain stationed in the Central African Republic (CAR), while some reports claim that South Africa has sent (or is preparing to send) more troops to that country, whose government was last week illegally overthrown by rebel forces. The new rulers are not recognised by either the United Nations or the African Union. Pressing questions arise about the legal basis for the continued presence of our troops in the CAR, both in terms of South African and international law. Here is why.
In the run-up to the invasion of Iraq by the United States and Britain, the invading parties sought a resolution from the United Nations Security Council to sanction its invasion in order to provide it with cover in terms of international law. This resolution was blocked when France – a permanent member of the Security Council – threatened to veto it. South Africa, to its credit, also stood firm in its opposition to such a resolution on the grounds that an invasion would breach the UN Charter, which safeguards the sovereignty of all states. Many international lawyers argued at the time that the invasion was in breach of international law and that George Bush and Tony Blair could be prosecuted at the International Criminal Court for war crimes. Realpolitik prevented this line of argument being pursued seriously by any of the states opposed to the invasion.
Later, serious concerns were also raised about the legality of NATO bombings in Libya during the uprising against the regime of Muammar Gaddafi, ostensibly under the cover of a UN Security Council resolution allowing actions to be taken to protect civilians in that country. Questions about the legality of military involvement in the internal affairs of a sovereign country stems, first and foremost, from article 2.4 of the United Nations Charter, which states that:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
But there are requirements of customary international law that protect even states that are not members of the United Nations. These rules of customary international law impose legal duties on all states not to violate the sovereignty of another State; not to intervene in the affairs of another State; and not to use force against another State – unless formally sanctioned by bilateral agreements or by the UN or African Union.
It is therefore important to establish that South Africa has a legal mandate to station troops in the CAR, whether the mandate is provided by an official resolution of the UN Security Council or the African Union or by a valid bilateral agreement with the CAR. Although our presence in the CAR cannot be equated with the unlawful invasion of Iraq, many of the same international law legal principles are applicable in the present case.
President Jacob Zuma announced in early January this year that a decision had been taken to send more South African troops to the CAR “to render support in fulfilment of an international obligation of the Republic of South Africa towards the CAR”. This international obligation of South Africa apparently arose from a bilateral agreement between the South Africa and the CAR. As far as I can tell, the agreement has not been made public, but we have been told that in terms of the agreement South Africa would provide VIP assistance to the deposed President Francois Bozize and “assist with capacity building of the CAR Defence Force” and “with the planning and implementation of the disarmament, demobilisation and re-integration” of rebels into the army.
In a written reply in Parliament South Africa’s Minister of Defence stated that the bilateral agreement between South Africa and the CAR was in the form of a memorandum of understanding (MOU) “to capacitate the Armed Forces of Central African Republic (FACA) to be able to defend and protect the sovereignty and territory of the Central African Republic. Based on the signed MOU the SANDF deployed a contingent to train FACA on VIP Protection, Sub Units and Junior Leader Group.
Section 231 of the South African Constitution states that “[a]n international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces” (NCOP), unless it is “of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession”. It is at best unclear whether the agreement between South Africa and the CAR required assent by the National Assembly and the NCOP. If it did require assent, and if the two houses of Parliament had not approved it, the agreement would never have come into force and South Africa’s deployment of troops would have been illegal from the start as there would not be any legal agreement with the CAR.
However, even if the agreement was only of a technical nature, section 231 requires that it must be tabled in the National Assembly and the NCOP “within a reasonable time”. I have been unable to find any information about whether the required tabling in fact took place. Hopefully the Speaker of Parliament, the Presidency or the Minister of International Relations can allay fears that the requirements of our Constitution might have been ignored in this regard.
Even if all the constitutional requirements for the establishing of a valid bilateral agreement were complied with, it is far from clear that the bilateral agreement concluded between South Africa and the CAR are still in existence. There are two rules of international law regarding treaties that might suggest that no binding agreement exists at present.
First, the rule of rebus sic stantibus establishes the principle that an agreement between states is valid only for as long as the basic facts present at the time the agreement was concluded remains the same. This rule has arguably been slightly altered by article 62 of the Vienna Convention on the Law of Treaties of 1969, which now requires that the treaty would only be invalidated if “the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty and the effect of the change is radically to transform the extent of obligations still to be performed under the treaty”.
Given the fact that the agreement was reached at a time when there was an AU recognised government in place in the CAR and when there was indeed a CAR military to train, and given further that South Africa, as a loyal member of the AU, do not recognise the rebel government in the CAR and that the AU prohibits South Africa from supporting the unlawful rebel government in any way, I would suggest that the essential requirements for the continued validity of the bilateral agreement have fallen away.
However, there is a second reason why the bilateral agreement must surely now be void, namely that when it becomes objectively impossible to fulfil the conditions of the agreement, the agreement between states will terminate. This is confirmed by article 61 of the Vienna Convention that states that the impossibility of performing a treaty is a ground for terminating a treaty if “the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty”.
Thirteen South African soldiers have died at the hands of rebel forces who are now in control of the CAR. President Bozize has fled to Cameroon. The CAR army has disintegrated. It is therefore impossible to train the CAR army or to protect President Bozize as per the original bilateral agreement. In these circumstances it is not possible to argue that South Africa can fulfil its obligations in terms of this bilateral agreement with the CAR.
Given these circumstances, it is far from clear that the continued presence of South African troops in a sovereign country does not violate the UN Charter as well as customary international law.
Imagine, for a moment, that the apartheid government had been overthrown by Umkhonto we Sizwe while troops from the United States of America were stationed in the country in terms of a bilateral agreement in order to protect President FW de Klerk and to train members of the then South African Defence Force. If the US had refused to withdraw its troops (after a bloody battle with Umkhonto soldiers in which 13 US soldiers had been killed), citing the noble mission of protect American business interests and bringing peace and stability to us primitive Africans, most of us would have been outraged at the continued presence of the US army seen as having tried to prop up the apartheid regime. Many lawyers would also have cited the international law principles mentioned above to question the legality of the continued presence of US troops in what would have then been a newly liberated state.
While the rebels who now rule the CAR cannot in any way be equated with Umkhonto and the ANC (the latter having fought against apartheid which the UN had labeled a crime against humanity), the legal issues would be similar. At the very least, the Presidency, the Minister of Defence and the Minister of International Relations should address concerns that South Africa’s continued presence in the CAR is unlawful, and that this exposes our troops to possible prosecution by international bodies. Statements made by AU officials or in a BRICS communique, affirming the need of States to support efforts to stabilise the situation in the CAR do not change the legal position regarding our troops.
As the original purpose of the deployment of troops to the CAR has now fallen away, President Zuma is also constitutionally required to inform Parliament forthwith whether our troops will remain in the CAR and if so what the legal basis of this continued deployment might be. After all, the last thing we want is a kind of mission creep, something which got the USA into a terrible mess in Vietnam in the first war it ever lost. We might then also be told whether private business interests of ANC aligned individuals played a role in the January deployment and in any decision to remain in the CAR despite the fact that the original purpose of the mission has become impossible to pursue.BACK TO TOP