War and the Constitution

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By Anton Katz

The United States, Iran, North Korea and Russia are just a sample of countries that raise interesting and difficult issues of inter-state conflict or war. 

Yemen, Syria and DRC raise the spectre of civil war. Israel, and the states surrounding it have not been entirely isolated from serious violence involving war like conditions. Fortunately, South Africa has been relatively immune from the horrors of war over the last 25 years of its constitutional life. Of course, that has not always been the case. Over the past couple of centuries South Africa has had its fair share of war involvement. The Mfecane Wars in the early part of the 19th century through the Anglo Boer war, the involvement in World War II and the international crime of apartheid are mere examples of participation or connection to war.

But, what does the Constitution, the supreme law, say about war. Who has the power to declare war? And in what circumstances would the exercise of the war power be lawful? The Constitution establishes a defence force, which is the only lawful military force in South Africa. In other words, private military institutions or organisations are wholly prohibited. 

The SANDF

The primary object of the defence force is to defend and protect South Africa, its territorial integrity and its people in accordance with the Constitution and international law regulating the use of force. The President is Commander-in-Chief of the defence force, and must appoint the Military Command. Only the President may authorise the employment of the defence force in defence of South Africa or in fulfilment of an international obligation, such as peace keeping operations in foreign States.

But if the President declares a state of national defence, that is declares war then he must inform Parliament promptly. And he must give appropriate detail of the reason for the declaration, any place where the defence force is being employed and the number of people involved. If Parliament does not approve the President’s declaration of war within seven days it lapses. After seven days the war would become unlawful and unconstitutional with the requisite approval.

Although a trigger happy President could cause widespread and massive chaos with huge and necessary loss of life by waging war without timeous oversight, it is appreciated that foreign affairs, and the exercise of war powers usually require split second decision making. Another factor to be considered is the possible interests a particular President may have in the use of force. He may wish to divert the population from his own political failures and/or illegal conduct. Or he may have a financial interest in the war machine. Or he may have personal animosity against those in power in a foreign state. The possible different situations are many and varied. Let’s hope the seven day window is enough, and that it never becomes necessary for Parliamentary approval of a Presidential declaration of war.

In twenty five years of democracy the only recorded occasion on which the war power has been utilised was in 1998 when President Mandela and Deputy President Mbeki were out of the country. Chief Mangosuthu Buthelezi, the Minister of Home Affairs at the time, was sworn in as the Acting President. The Acting President was informed that Lesotho was on the brink of a violent coup, and that the South African national defence force was needed to prevent ‘anarchy’ and restore ‘a stable environment for law and order.’ In the first three days of the intervention 113 people were killed. 

This solitary event demonstrates the immense power, and indeed responsibility, the President enjoys. Was South Africa’s intervention an attempt to prop up an illegitimate regime or was it a genuine move to protect democracy and the rule of law. Similar considerations have applied in Venezuela recently. The US and Russia have taken different views as to who is the proper and legal ruler is in that South American State.

Two other interesting legal aspects arise in the war setting:

Arms exports 

The National Conventional Arms Control Act establishes a Control Committee to apply and ensure a legitimate, effective and transparent process regarding trade in conventional arms. The Committee has wide ranging powers to approve applications for permits to trade in conventional arms. Each application must be determined on a case-by-case basis; taking the following into account: 

Safeguarding the national security interests of the Republic and those of its allies.

Avoiding contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms; 

Avoiding transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms and to those that are likely to contribute to the escalation of regional military conflicts, endanger peace by introducing destabilising military capabilities into a region or otherwise contribute to regional instability; 

Adhering to international law, norms and practices and the international obligations and commitments of the Republic, including United Nations Security Council arms embargoes; 

Taking into account calls for reduced military expenditure in the interests of development and human security; 

Avoiding contributing to terrorism and crime; 

Taking into consideration the conventional arms control system of the recipient country and its record of compliance with end-user certificate undertakings, and avoid the export of conventional arms to a government that has violated an end-user certificate undertaking; 

Taking into account the inherent right of individual and collective self-defence of all sovereign countries in terms of the United Nations Charter; 

Avoiding the export of conventional arms that may be used for purposes other than the legitimate defence and security needs of the government of the country of import.

Regulation of Foreign Military Assistance Act 

This regulates the rendering of foreign military assistance by South African citizens and permanent residents. The Regulation Act has its origin in the unlawful use of mercenaries throughout Africa to destabilise States and assist in coup d’états. But the law goes far wider than mercenaries. It applies to all foreign military assistance.It prohibits South Africans from taking part or assisting in foreign military assistance, which is widely defined, without authorisation from a Control Committee. The only excluded activities are humanitarian or civilian activities aimed at relieving the plight of civilians in an area of armed conflict. 

Thus all South Africans intending to take part military activities outside South Africa, whether as part of the armed forces of a foreign state or dissident armed forces or other armed groups are well advised to obtain legal advice, and if necessary to apply for and obtain the necessary authority before the rendering of assistance as set out in the Regulation Act. 

There are rumours that the Control Committee has been dysfunctional for some years; but it is not clear whether if the rumours are true whether that would excuse failure to obtain authorisation.

To read the full PDF of the Cape Jewish Chronicle, click here
To read the editor’s column for August, click here
To read our most popular story for July, click here

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