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.
When should South African troops get involved in the internal disputes of another country? Should we ever send troops to protect the President of a foreign country and to train its army who is fighting a rebel insurgency? Would it be acceptable to send South African troops to Afghanistan to protect President Hamid Karzai and to train his soldiers fighting the Taliban? If not, when would it be wise to send troops to a foreign country involved in a war? For some reasons most South Africans do not seem to care much about such vital questions. But they should.
Earlier this week the Presidency announced the movement of about 400 South African National Defence Force (SANDF) soldiers to the troubled Central African Republic (CAR). The deployment was apparently authorised by President Jacob Zuma, who is also the Commander-in-Chief of the SANDF, on January 3 to “assist with capacity building of the CAR Defence Force” and to assist CAR with the “planning and implementation of the disarmament, demobilisation and re-integration” of rebel troops and is authorised for a period of 5 years.
Few South Africans would be aware that South Africa has had a military presence in CAR since 2007 in terms of a bilateral co-operation agreement between the two countries. South Africa and CAR signed a military cooperation agreement in 2007, which was renewed for a further five years in December 2012. That agreement is to provide CAR’s army with an array of military training, from infantry, artillery and Special Forces training to logistics and driving courses, as well as “refurbishment” of military infrastructure in Bouar and Bangui. South Africa’s military has also supported disarmament, demobilization and reintegration (DDR) programmes, and it assisted in CAR’s 2011 elections.
After the signing of the military cooperation agreement – and before the recent deployment – the numbers of SANDF personnel had fluctuated by between 20 and 46 soldiers. These soldiers served in CAR at the request of President Francois Bozize who came to power in a coup and won controversial re-election in 2011. The original deployment included a SANDF Special Forces unit, provided for “VIP protection to President Bozize.” This means South African troops have been protecting President Bozize (acting as a potentially lethal blue light brigade) for the past two years.
Section 201 of the South African Constitution authorises the President to deploy the SANDF “in fulfilment of international obligations”. However, the section also requires the President to inform Parliament “promptly and in appropriate detail” of 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 is expected to be employed. Section 18 of the Defence Act further requires the President to inform Parliament of the “expenditure incurred or expected to be incurred” by the deployment.
When Parliament is not in sitting during the first seven days after the defence force is employed (as is currently the case), the President must provide the information required to the Portfolio Committee on Defence. This means that Zuma has until Thursday to inform the Portfolio Committee of the deployment as well as of the estimated cost of the deployment. If he fails to inform the Portfolio Committee as required, the deployment would become unconstitutional and unlawful.
There are two important reasons for the requirement to inform the Parliament of the deployment.
First, it prevents the President from deploying SANDF troops in secret, either inside or outside South Africa. In 1975 the apartheid regime invaded Angola, but this information was kept from the South African public. In Mark Behr’s novel, The Smell of Apples there is a scene in which the South African troops in Angola listened in astonishment as the South African government Ministers denied that South African troops were present in Angola. The apartheid regime saw nothing wrong with lying to the country about the Defence Force involvement in Angola.
South Africans only received confirmation of this invasion when it was revealed in Parliament by Frederick van Zyl Slabbert. Slabbert had to reveal the information in Parliament where he was protected by Parliamentary privilege in order to evade the strict secrecy legislation in place at the time. Our Constitution now requires the President to inform Parliament promptly of a deployment to prevent the government from misleading the public again in such a flagrant manner. As the deployment of South African troops in a war situation is a radical step, and as the President is accountable to Parliament and to the voters for taking such a step, the President cannot deploy troops in secret to avoid accountability for his actions.
Second, Parliament has the ultimate say over any deployment of troops, both inside South Africa and abroad. In terms of section 18 of the Defence Act, Parliament is authorised to confirm the deployment of troops; order the amendment of such authorisation; or order the termination of the employment of the Defence Force. This has to be done by a resolution “within seven days after receiving information” about the deployment from the President.
This means that if Parliament is not happy with the deployment of South African troops to a foreign country it may recall the troops. Given the fact that the ANC has a large majority in Parliament and that its members will not second-guess the President, it is sadly unthinkable at present that Parliament would use its power to amend the deployment order (by limiting it to a period of 6 months, say) or to recall the troops already stationed in CAR.
Section 20 of the Defence Act allows soldiers stationed in CAR to exercise powers and duties for the purpose of the successful execution of their employment. As the soldiers have been deployed to disarm rebels and to protect the President, this seems to authorise our soldiers to get involved in fighting in CAR. How else will one disarm rebels who are refusing to lay down their arms and how else will one protect President Bozize if he is being attacked by rebels. Let’s hope it does not get to that.
But I guess that was also what many Americans said when they first heard of the deployment of their troops in Vietnam.BACK TO TOP