Phephelaphi Dube: Director, Centre for Constitutional Rights
17 November 2017
In view of recent developments and unfolding events in South Africa’s neighbour, Zimbabwe, it is perhaps the opportune moment to examine the role of the South African National Defence Force (SANDF) within South Africa’s constitutional democracy. As with most nations, South Africa maintains a military force, which in terms of the Constitution, is meant to “provide for the defence of the Republic”. The Defence Act further sets out the parameters on how the military interacts with civil society. The SANDF is above party-politics and is non-partisan. Importantly, the SANDF is subject to civilian oversight, as well as control by the Minister of Defence.
The Constitution further establishes the governing principles of South Africa’s national security as reflecting the resolve “to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”.
Accountability, responsiveness and openness are foundational values which underpin the nation and are equally applicable to the SANDF. Further, the SANDF by virtue of being a national institution, is dependent on public funds for its work and this requires that its operations be open and transparent. Due to the sheer potential of its military might, SANDF affairs will always be in the nation’s public interest and this makes transparency the overriding consideration in how the SANDF conducts itself.
The Constitution does not envisage national security as an exclusively SANDF affair, let alone the sole competency of the South African Police Service (SAPS). Rather, the Constitution considers national security to be all encompassing, including the political, economic and social environments. At the heart of South Africa’s defence policy is a keen awareness of individual’s rights and freedoms. To this end, the Constitution and Defence Act permit the SANDF to be deployed with the SAPS under certain specified conditions. As the mandate of the SANDF (to defend South Africa from external aggression) differs markedly from that of the SAPS (civilian and public order orientation), this deployment has to be for certain limited purposes. Such purposes are: the preservation of life, health or property in emergency or humanitarian relief operations; ensuring the provision of essential services; support for any department of state, including support for purposes of socio-economic upliftment; and effective national border control. In terms of the Constitution, the SAPS bear the primary responsibility for public order policing, while the primary object of the defence force is to “defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and principles of international law regulating the use of force”.
Only the President can authorise the deployment of the SANDF, and he has to inform Parliament of the details of the deployment, including the size of the deployment and precise responsibility. The deployment of the SANDF has to be for a limited period.
The SANDF is the only military force lawfully permitted by the Constitution. The Constitution allows for other security services in a highly regulated environment in terms of legislation, and they too are bound by the Constitution, as well as international laws to which South Africa is subject. A recurrent concern is that due to the high levels of crime, there are more personnel in the private security industry than there are in the SAPS and SANDF combined.
Ultimately, it is important for South Africa to have a mature political culture, one where there is a clear delineation between party and State, one where the separation of powers doctrine functions well enough to keep each branch of government’s powers in check, and one where the constitutional scheme is understood and respected. A fledgling democracy such as South Africa requires a mature political culture in which military might and force defer to freedom, dignity, openness and transparency.
In April 1994, the SANDF stood as an unlikely military force – made up of the former South African Defence Force (SADF) and formerly bitter foes such as the Umkhonto We Sizwe (MK) and the Azanian People’s Liberation Army (APLA). It is thus all the more reason the integrated SANDF be undergirded by constitutional values. The costs of a military force veering off the constitutional garden path are being played out by the neighbours and are plain for all to judge. The threat, however, is that the constitutional role of key state institutions (the NPA, Hawks, SSA, SARS) has seemingly been perverted by the capture of these institutions to promote the personal and political agendas of leading politicians. Why should the SANDF be immune to this process – and what would happen in a crisis if it, too, turns out to have been captured?