21 May 2008: ISS Today: Army May Halt Xenophobic Violence in South Africa

21 May 2008: Army May Halt Xenophobic Violence in South Africa

 

The world has been shocked by the recent outbreak of xenophobic violence in Gauteng, South Africa. The attacks have left 23 people dead and thousands seeking refuge in shelters. At this stage the concern is that the violence will spread to other parts of Gauteng and possibly the country. What is the state’s response to the violence?

 

The South African Police Service (SAPS) immediately deployed its Crime Combating Units (previously known as Public Order Police Units) from Pretoria, Springs and Diepkloof to the affected areas. It was soon clear that these units numbering 614 in total could not cope. The SAPS on a provincial level then called for the support of police from station level as well as the Metro Police. The concern was immediately raised about the level of operational preparedness of the Metro Police and SAPS members from stations regarding training and equipment, as well as operational coordination on ground level.

 

The question that can be asked is what effect did the 2006 restructuring of the SAPS have on its capability to deal with this type of violence? The answer is clear, when the SAPS in Gauteng closed four of the Crime Combating Units; they lost 769 members - almost reducing by half their operational capability.

 

The leader of the United Democratic Movement, Bantu Holomisa was correct when he said earlier this week “the priority is to stop the bullets, the violence, the looting, the rapes and setting of people on fire”. To be able to do that you need to “flood” the area with police and possibly in this case, soldiers. In the past few days, calls were made by political leaders, churches and NGO’s to deploy the military.

 

The SANDF has in fact already been approached to deploy soldiers in support of the SAPS. The president could even approve the deployment today. The question has been asked if the SANDF may, according to the constitution, deploy in support of the police to curb internal violence? The answer is yes.

 

The confusion about the legality of a possible SANDF deployment in support of the police come from a statement made by the Minister of Defence, Mosiuoa Lekota in the Sunday Times of 18 May 2008 when he said “we can’t use the National Defence Force to police civilians. We can only look with condemnation upon the attacks”.

 

The legal situation, however, is as follows:

 

Only the president, in terms of section 201(1) of the Constitution, may authorise the deployment of the SANDF; in cooperation with the SAPS; in defence of the Republic; and in the fulfilment of an international obligation.

 

The President or the Minister may, in terms of section 18(1) of the Defence Act, 2002 authorise the employment of the SANDF inside the Republic or in international waters, in order to: preserve life or property in emergency or humanitarian relief operations; ensure the provision of essential services; support a department of state, inter alia for the purpose of socio-economic upliftment; and effect national border control.

 

In terms of section 22(1) of the Defence Act, the Chief of the SANDF, with the consent of the Minister of Defence, and if so requested by a competent Minister, may authorise the use of any military aircraft, warship or member of the SANDF for the purpose of enforcing domestic law at sea.

 

In accordance with the constitution, it is the policy of the government that the task of preventing and combating crime and maintaining public order is vested in the SAPS.  The SANDF, in accordance with international practise, should be employed to restore law and order only when the civil authority has determined that the SAPS cannot do so on its own. 

 

The SANDF will, therefore, not be employed on a permanent basis to assist the SAPS, such employment will cease once the SAPS is capable of fulfilling its obligation to maintain law and order on its own.

 

In terms of section 19 of the Defence Act:

  • Authorisation for the deployment of the SANDF or any portion or member thereof in co-operation with the SAPS in terms of section 201(2)(a) shall be limited to co-operation in the maintenance and preservation of law and order, within the Republic.
  • The employment of the Defence Force in co-operation with the SAPS shall be notified within twenty-four hours of the commencement thereof in the Gazette and, upon such employment being discontinued, that fact shall likewise be notified within twenty-four hours of such discontinuation.
  • Service in co-operation with the SAPS shall: only be performed is such areas or at such places as the Minister may order at the request of the Minister of Safety and Security; adhere to a code of conduct and operational procedures which have been approved by the Minister; be discontinued or suspended in any area or at any place by order of the Minister when the Minister of Safety and Security requests the Minister to do so or when the Minister deems it expedient for any other reason; be performed in accordance with a code of conduct and procedures approved by the minister and be in uniform unless otherwise permitted by law.

 

It is thus clear that the legal basis does exist for the SANDF to be deployed in support of the police, but are they operationally ready to deploy? In the past, the SANDF was very much involved in supporting the police on a daily basis in the fight against crime. It is uncertain if the level of training in urban operations has been maintained.

 

The SANDF is likely to be used in cooperation with the SAPS in the present situation in tasks such as roadblocks, patrol, observation post, protection of shelters and cordon and search operations. The SAPS will be the lead department.

 

It is expected that the people in the affected areas will welcome the deployment of the SANDF and it will also give the police the opportunity to focus on more specific issues such as gathering information and investigation of the crimes. Key to the deployment will be effective coordination between all role players from national to local level, as well as clear direction from national level on what is to be achieved.

 

Henri Boshoff, African Security Analysis Programme, ISS Tshwane (Pretoria)

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