As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Many questions remain about the deployment of members of the South African Defence Force in a civil war zone in the Central African Republic (CAR). These include the actual purpose of the deployment, the South African government’s strategic goals for the deployment, as well as what actually happened when at least 13 of our soldiers were tragically killed in combat over the weekend. After all as the Greek writer/poet Aeschylus (525BC — 456BC) is said to have first remarked: “In war, truth is the first casualty.” One question that has not been answered is why our Parliament has apparently not adequately fulfilled its democratic role of overseeing the deployment of our soldiers as required by the Constitution and the Defence Act of 2002?
It is true that in terms of our Constitution, the President is the commander in Chief of the armed forces, as is the practice in most democracies. As I have pointed out before the President has the power to “authorise the employment” of the defence force in co-operation with the police service; in defence of the Republic; or in fulfilment of an international obligation.
When he employs the defence force for one of the reasons allowed for above, the President must inform Parliament, “promptly and in appropriate detail” of:
If Parliament is not in session at the time of the authorisation, the President must provide the information to the Portfolio Committee of Defence that oversees the Defence Force.
For obvious reasons the President does not have to ask permission from Parliament before he employs the Defence Force. In critical situations, the Defence Force may have to be employed before Parliament will be able to sit and to deliberate on the wisdom of the planned employment of our troops. That is why section 18(5) states that no matter what Parliament decides about a decision by the President to employ our troops, the validity of the original authorisation by the President will not be affected.
But this does not mean that Parliament has no role to play in a decision to authorise the employment of our troops, either inside the country or on a foreign mission in fulfilment of an international obligation. On the contrary, once informed about the employment, the provisions of section 18(5) of the Defence Act kicks in, which requires Parliament to consider the wisdom of the President’s decision. This provision establishes the principle of direct democratic oversight by Parliament over decisions by the President to employ our soldiers to situations where they may come in harm’s way.
This sections states that Parliament may, within seven days after receiving the information about an employment of the Defence Force take any of the following decisions “by resolution”:
Members of Parliament can only apply their minds as to the wisdom of the President’s decision, if Parliament actually considers the decision by the President and debate it. Without a debate in which the pro’s and con’s of an employment is considered, it will not be able to exercise its powers as set out in section 18(5) of the Defence Act.
This provision is important as it affirms — in line with section 198(d) of the Constitution – that “[n]ational security is subject to the authority of Parliament and the national executive”. It forms part of the system of checks and balances that is inherent in the principle of separation of powers. It avoids a situation in which a President unilaterally involves South African troops in military operations (without having to justify the decision to the democratically elected representatives of the people), thus limiting the powers of the commander in Chief and subjecting it to democratic scrutiny and oversight.
This principle is further entrenched by the provisions of section 203 dealing with a decision of the President to “declare a state of national defence”, which I take to mean a decision to involve South Africa in a war inside or outside the borders of South Africa.
When the President decides to declare a state of national defence, the Constitution provides for a more invasive role for Parliament. Section 203(2) requires the President to inform Parliament of the declaration as well as the reasons for it and if Parliament is not sitting when a state of national defence is declared, the President must summon Parliament to an extraordinary sitting within seven days of the declaration. Section 203(3) further states that a declaration of a state of national defence lapses unless it is approved by Parliament within seven days of the declaration.
All these provisions of the Constitution, read with the relevant provisions of the Defence Act, therefore envisage an active role for Parliament in decisions by the President to employ our troops, both inside the country and abroad.
This raises some questions about the lack of debate and discussion in Parliament regarding various decisions by the President to employ troops elsewhere on our continent. Of course, given the overwhelming electoral majority enjoyed by the President’s party in the National Assembly and given the strict party discipline imposed on members of Parliament in South Africa, it is currently unthinkable that Parliament will use its powers in terms of section 18(5) of the Defence Act to overturn a decision by the President to employ our troops in another country.
But when considering whether to sanction the decision by the President, Parliament will be required to conduct a proper debate. The President (or, at the very least, the Minister of Defence) will be required to report to Parliament on the reasons for the President’s decision. Such a debate will serve to account to voters for what may turn out to be a life or death decision. Once Parliament approves the decision by the President, the deployment will also enjoy democratic legitimacy and will ensure political support for our Defence Force members who might be sent on dangerous missions like the one to CAR.
As far as I am aware, such vigorous debates in Parliament about the wisdom of deploying troops to various parts of our continent have never occurred. It is only now that the mission in CAR has run into serious difficulties that ordinary voters are starting to ask the hard questions, which should have been asked at the time of the employment. This does our troops a disservice as conjecture and accusations about the nature of the mission to CAR swirl around while our troops may very well still be in danger. Better to have these discussions and debates before the danger arise. But for that we need a Parliament that respects the separation of powers and its own role of checking and overseeing the exercise of power by the executive seriously.BACK TO TOP