Wednesday, January 25, 2012

South Africa: Concerns Raised About the Involvement of the Military in Policing Operations

Source: ISS

Concerns Raised About the Involvement of the Military in Policing Operations in South Africa

Johan Burger, Senior Researcher, Crime and Justice Division, Pretoria Office

The deployment of the South African National Defence Force (SANDF) in the recent festive season policing operations has led to concerns being raised from various quarters. The first problems emerged withThe Star newspaper reports of a policing operation in Johannesburg where the military and police were carrying out a joint operation targeting informal shops to seize counterfeit products. Photographs were taken of a soldier beating a shop owner with the butt of his R4 rifle. Police members, including members of the police’s Tactical Response Team (TRT), were also alleged to have used unnecessary and excessive violence against shop owners and bystanders. A week later, the Cape Times reported on two SANDF armoured vehicles and a number of armed soldiers that were seen monitoring a protest of less than fifty people at the Khayelitsha District Hospital in the Cape Town Metropolitan area. SABC news more recently broadcast soldiers taking part in an operation to burn a plantation of marijuana that had been discovered in Soweto.

These incidents prompted a debate on military deployment in support of the police and to what extent constitutional and other legislative prerequisites were met during these deployments. For example, on 16 January, a professor of constitutional law at the University of Cape Town, Pierre de Vos argued that it is of ‘utmost importance’, in a constitutional democracy, to keep the roles of the police and the military separate. He acknowledges that the Constitution provides for the ‘employment’ of the military ‘in cooperation with the police service’, but questions whether in this instance the correct procedures for such ‘employment’ were followed.

Subsequently, a General Ndivhuwo Mabaya stated correct procedures were followed because, since 2001 the police and the SANDF have a general cooperation agreement which covers all their joint operations. Professor De Vos wrote an article arguing that such an agreement was clearly unconstitutional because the ‘employment’ of the military in cooperation with the South African Police Service is regulated by section 201of the Constitution of the Republic of South Africa which states that:

‘(2) Only the President … may authorise the employment of the defence force

(a) in cooperation with the police service; …’

(3) When the defence force is employed for any purpose mentioned in

subsection (2), the President must inform Parliament, promptly and in

appropriate detail, of –

(a) the reasons for the employment …;

(b) any place where the force is being employed;

(c) the number of people involved; and

(d) the period for which the force is expected to be employed.

Furthermore, the White Paper on Defence states that the SANDF should only be deployed in support of the SAPS, “…in the most exceptional circumstances, such as a complete breakdown of public order beyond the capacity of the SAPS, or a state of national defence”. For example, during the wave of xenophobic violence that took place in 2008, the military were only deployed after it became clear that the police were not able to contain the situation which had resulted in the deaths of 69 people.

The White Paper on Defence clearly presents the many reasons as to why it is not desirable to have military involvement in policing duties either on permanent or semi-permanent basis. As the military are not trained or equipped for policing duties it leads to acts of repression and undermines the legitimacy of the military in the eyes of the public.

In contradiction with the General’s statement that all deployment of the military in support of the police was part of a decade old agreement, the recent festive season operations appears to have been authorised by a ‘President’s Minute No 374/2011’ signed on 12 December 2011 by the President and the Minister of Defence. This one page document states that ‘members of the Regular Force and the Reserve Force of the South African National Defence Force’ are employed ‘with effect from 1 November 2011 to 31 January 2012 … for service in cooperation with the South African Police Service in the prevention and combating of crime and the maintenance and preservation of law and order within the Republic of South Africa during the 2011/2012 Festive Season’ (own emphasis).

Nevertheless, it appears as if this general deployment minute fails to adhere to both constitutional requirements and official policy. For example, the Constitution clearly states that the President must inform Parliament ‘promptly and in appropriate detail’ when the Defence Force is ‘employed.’ That the President’s Minute was signed on 12 December and the employment began on 1 November, six weeks earlier, brings this into question. Moreover, there is no indication of the ‘exceptional circumstances’ that existed to require the military to be deployed with the police over the festive season.

The Constitution does not elaborate on the nature of the duties of the defence force when ‘employed in cooperation with the police service’. However, according to section 20(1) of the Defence Act Defence Act (No. 42 of 2002), a member of the Defence Force who is ‘utilised for the execution of services under such employment has the same powers and duties as those conferred or imposed upon a member of the South African Police Service’ (own emphasis). The only exclusion here is the investigation of crime (section 20(2)). Section 20(11) adds a provision that Defence Force members accordingly employed must receive ‘appropriate training prior to such employment and must be properly equipped. From the media reports and pictures of the soldiers’ equipment (R5 automatic rifles) and instances of abusive behaviour during the recent festive season operations, these statutory requirements may have been breached.

It is worthwhile noting that in South Africa, joint operations between the military and the police are not new. Since the mid 1990s, joint operations have been coordinated by the national Joint Operational and Intelligence Structure (JOINTS) which reports to the Justice, Crime Prevention and Security (JCPS) Cluster consisting of Ministers and Directors-General of the relevant departments. This kind of cooperation has enabled the military, the intelligence community and the police to plan and execute successful major event security operations such as the 2012 FIFA World Cup tournament and also on occasion, major crime-combating operations. However, it has never been a requirement for the military to have police powers in order for them to work with the police. Rather, the military have played more of a support service role by providing the police with logistical support when needed and a protective cordon where specific policing operations have been conducted in volatile places where the police may come under attack. In this sense the ‘policing’ powers allocated to the Defence Force when they act in cooperation with the police is unnecessary. Such powers without the required training and equipment are in any case tantamount to inviting unlawful action and abuse against which the White Paper warns.

It is against this background that the deployment of the military in support of the police, in very specific situations or ‘exceptional circumstances’ and following the proper accountability procedures can be justified. However, deploying the military to perform routine and other normal police duties, such as the regular annual festive season operations cannot be justified. The decision to involve the military in such operations needs to be reconsidered, and particular attention needs to be paid to whether the Constitutional provision are being effectively adhered to or not. Moreover, section 20 of the Defence Act should be amended to provide the Defence Force only with those powers required to support the police.