11 Apr 2007: ISS Today: South Africa: Private Military Companies `Not Peaceful`

11 April 2007: South Africa: Private Military Companies `Not Peaceful`

 

According to Sapa, Cape Town, (March 27, 2007), Defence Minister Mosiuoa Lekota was reported as having said that rather than bringing peace, the deployment of private military companies in conflict areas could undermine constitutional democracy. The Defence Minister was speaking in the National Assembly on the Defence Budget Vote where he categorically averred that private companies could harbour selfish motives. In his words, "Private military or security companies are able to intervene in conflicts, tilting the balance of power in favour of their paymasters [and] they have the potential to undermine legitimate constitutional democracies." Lekota stated that the appearance of non-state actors in conflict areas had to be reckoned with.

 

Commentary

 

The approach that the South African government adopts in relation to private military companies, is crystal clear: private military companies are undesirable. This approach applies equally to South African operatives with military and related skills working beyond the South African borders. Delivering his 2005 State of the Nation Address, President Mbeki said ‘[i]n the coming year, we shall continue with all these and other programmes, ... to review the Foreign Military Assistance Act [of 1998] in order to discourage for their own good and the good of the country, those who seek to profit from conflict and human suffering such as in Iraq.’ In this statement, the operative word is to ‘discourage’ and not necessarily to ‘regulate’.

 

The result of the review of the Foreign Military Assistance Act’s was the Prohibition of Mercenary Activities and Prohibition and Regulation of Certain Activities in Areas of Armed Conflict Bill,(1) which has now been passed by the South African Parliament. The Bill is awaiting the Presidential assent after which it shall come into force by Proclamation in the Gazette.(2) This Bill seeks to repeal and replace the Regulation of Foreign Military Assistance Act of 1998.  With the Bill having passed through almost all the formal processes, there is no doubt that it will soon become part of South African law. The ‘regulation’, sought in the Bill relates, inter alia, to the provision of assistance or services of a military or military-related nature in a country in armed conflict, and the enlistment of South African citizens or permanent residents in other armed forces. These are discouraged in the Bill.

 

The Bill has gone through a number of processes and from a political point of view, if one considers the minutes of the Parliamentary Committee that worked on it, the ruling party has always been in favour of the contents of the Bill while the opposition has not. The South African government must be applauded for putting in place a regulatory framework,which is a giant step in addressing the challenges presented by the growing number of private security/military companies. The Bill provides for the regulation of the private security sector by way of putting in place a control mechanism, which is in line with the South African Constitution, the supreme law of South Africa. Section 198 (b) of the Constitution provides that

 

…the resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in the Constitution or national legislation.

 

The Bill therefore provides for a legislative measure, which aims at curtailing unauthorised and opaque private security sector business operations and the recruitment of South African citizens and permanent residents outside South Africa.

 

At face value, it does seem that the Bill provides a regulatory framework. A closer look however, suggests that the it is arguably a prohibitive mechanism that will see a complete ban on South Africans with security or military expertise operating abroad. The Bill will most likely hinder South Africans from carrying out legitimate humanitarian and private security work abroad. Such hindrance is indeed in line with Lekota’s assertion that ‘rather than bringing peace, the deployment of private military companies in conflict areas could undermine constitutional democracy.’ In order to uphold constitutional democracy, the South African government’s approach arguably dictates that private security / military companies and their activities beyond the South African borders must come to an end. It is unfortunate that the Defence Minister never interrogated the various roles that private security/military companies play in conflict situations.

 

In line with South Africa’s international obligations(3) the Bill proscribes the involvement of South African citizens, its permanent residents, juristic persons (registered in South Africa) and any foreign citizens who contravene the Bill (Act) within South Africa in mercenary activities. The arrests of South African citizens allegedly involved in a planned coup d’état against the Government of Equatorial Guinea was a wake up call to the South African Government that mercenary activities were being undertaken or planned within South African borders.(4) In terms of the Bill, a mercenary is a person, who within South Africa or elsewhere does the following:

• Participates as a combatant for private gain in an armed conflict;
• Directly or indirectly recruits, uses, trains, supports or finances a combatant for private gain in an armed conflict;
• Directly or indirectly participates in any manner in the initiation, causing or furthering of
• An armed conflict; or
• A coup d’état, uprising or rebellion against any government;
• Directly or indirectly performs any act aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state.

 

Given the variety of services that private security/military companies render, especially in an armed conflict, the definition of a mercenary in terms of the Bill is most likely to include them, thus making their operations prohibited.

 

In order to prevent situations where South African citizens, permanent residents and juristic persons are involved in an armed conflict or in fuelling an imminent armed conflict,(5) save where so authorised under section 7, the Bill proscribes certain acts, which include the following: negotiating or offering assistance (including rendering service) to an armed conflict or regulated country; providing any assistance or rendering any service to a party to an armed conflict or regulated area; recruiting, using training, supporting or financing a person to provide or render any service to a party to an armed conflict or regulated area; and performing any other act that has the result of furthering the military interests of a party to an armed conflict or in a regulated country. It would seem that as long as it is in an armed conflict or regulated country any kind of security/military service may be prohibited under the Bill. This is likely, therefore, to put an end to private security/military personnel involved in legitimate business operations. The criterion for determining a ‘regulated country’ is not specified. This will all depend on the South African foreign policy at the relevant time.

 

The war in Afghanistan and Iraq presented great opportunities to South African citizens (and permanent residents) with security and military related skills to enlist with armed forces abroad. This was in line with their constitutional right freely to choose a trade, occupation or profession.(6) The Bill prohibits the enlistment of South African citizens and permanent residents unless they are authorised in terms of section 7 of the Bill. The right freely to choose a trade, occupation or profession is not absolute. It is subject to regulation by law, which largely depends upon the circumstances of each case and the nature of the trade, occupation or profession involved. While the Bill does not seek an outright prohibition of the enlistment of South African citizens and permanent residents, the condition of obtaining a section 7-authorisation seems to present a problem. This kind of control mechanism may arguably be an implicit prohibition of such enlistments. It has been argued by Taljaard, for instance, that the direction the Bill takes, is to ‘ensure [that] no South African security worker ever conducts security work in contexts where the line between security work and combat situations could blur.’(7)

 

It is not the first time that South African citizens and permanent residents skilled in a variety of fields have been recruited outside the South African borders. Doctors, engineers, nurses, educators, accountants, managers and so on, do not require such authorisation from the South African government before they may be gainfully employed abroad. This control mechanism singles out only South Africans enlisting in armed forces, which is in itself simply another profession.

 

Although South Africa has played a pivotal role in brokering and pursuing the peace agenda in a number of countries, especially in Africa (Burundi, DRC, Liberia, Angola), these efforts are, inter alia, complemented by the provision of humanitarian assistance by South African humanitarian organisations. The Bill seeks to legalise the rendering of humanitarian assistance by South African organisations that have been registered with the National Conventional Arms Control Committee. This will avoid situations where unscrupulous humanitarian organisations may be involved in fuelling a conflict in one way or the other under the guise of ‘rendering humanitarian assistance’ to a regulated country. The rationale behind registering a South African humanitarian organisation with a committee whose aim is to control arms is rather disturbing. The control of humanitarian assistance by an arms committee implies that humanitarian assistance involves the use of arms. Humanitarian organisations could have been best controlled by the South African Department of Foreign Affairs, Humanitarian Section. It would seem that humanitarian organisations will now be treated as if they are military or security groups, as they require authorisation from the same committee that controls such groups.

 

The authorisation process is the basis upon which the South African regulatory framework is founded. Without this process, there would be a danger of South African citizens, permanent residents and juristic persons being involved in mercenary activities, upon which the Bill seeks an outright prohibition. It is therefore important to have the authorisation requirement, because the exploitation of military and security services is not just like any trade, occupation or profession. It involves dealing with human beings and their lives in the most direct way. The fact that the National Arms Control Committee is responsible for the authorisation may present practical difficulties. This is a Committee that is tasked with controlling arms. The offering of certain assistance (including humanitarian assistance), rendering of services, or enlisting in armed forces should be regulated by a different committee established just for that purpose. They are many South African operatives working abroad and there seems to be no safeguards to secure already existing jobs.

 

The authorisation process does not indicate the duration within which the process should take. Section 15 (2) (a) only provides that those operatives already enlisted in an armed force must within six months of the date of commencement of the Bill apply for the authorisation. As to how long the process is expected to take after application is made remains to be seen. Given the nature of the South African bureaucratic system, such a process may be cumbersomely long. In the event that the authorisation application is refused by the Committee the subsequent application for written reasons in the manner contemplated in section 5 of the Promotion of Administrative Justice Act No. 3, 2000 (PAJA),(8) may delay the process even longer. 

 

In the event that the written reasons are provided in terms of the PAJA, the aggrieved party may institute proceedings in a competent court for judicial review. Although this process is in order, judicial processes are very expensive and could take a very long time. The authorisation process coupled with judicial review process is likely to discourage would-be operatives and those already active in the field from applying for any authorisation at all. In fact, one way of bypassing the process is to obtain a different residency or citizenship from a country without such strict regulations.

 

The Bill lays down criteria to be used to inform the authorisation process. This therefore enables the applicant to know exactly the mischief which the Bill seeks to prohibit. In the event that a reason is given based on the criteria used, the applicant may present counter-arguments in justifying his application for authorisation. The criteria are not without flaws, however. They are arguably open-ended. One of the reasons for refusing an authorisation or exemption provided for under section 9 of the Bill is that of prejudicing the South African national and international interest.(9) ‘National or international interest’ is too vague a term, which presents an easy way for non-authorisation or non-exemption without much recourse to appeal.

 

The Bill applies extra-territorially. In terms of the Bill, any act constituting an offence under the Bill (Act) and that is committed outside the South Africa by a South African citizen, a permanent resident, a South African registered company or any body of persons (corporate/unincorporated), must be regarded as having been committed in South Africa.  This provision also extends to any other person found in South Africa. This provision for extra-territorial jurisdiction seeks to put an end to those persons violating the Bill (Act) who intend making South Africa a safe haven. It also seeks to protect South Africa from being a breeding ground for mercenarism. This extra-territorial jurisdiction will have practical evidential challenges. It may be difficult to gather evidence of what happens outside the South African borders. The South African government may find itself being sued for malicious prosecution if there is insufficient evidence. The provision may also affect South Africa’s international relations with other states where the persons prosecuted in South Africa originate.

 

Having discussed, albeit briefly, the salient features of the Bill, it does seem to be clear that the private security/military industry seeking to involve South Africans should consider looking elsewhere because of the South African government’s approach to the same, which appears hostile. The other way out is for South African operatives (intending or already working abroad) to seek alternative citizenship in order free themselves from a cumbersome process, which is likely to jeopardise their opportunities of working in the private security/military industry beyond the South African borders. From the Minister’s speech, one finds no positive attribute regarding the private military companies. Instead they are seen as antithesis to a peaceful world. From the President’s speech the same is true as these are seen as ‘seeking to profit from conflict and human suffering’. Perhaps, a name change would do: Private Peaceful Security/Military Companies? But will this change the South African Government’s hostile attitude towards this industry.

 

Sabelo Gumedze, Defence Sector Programme, ISS Tshwane (Pretoria)