The White Paper on Defence (1996) states that it is undesirable for the SANDF to be employed in a policing capacity but that such employment is necessary because of the high level of crime and the relative shortage of police personnel [chapters 3 and 4].

An important question arising from this position is whether military personnel should enjoy police powers when employed in co-operation with the South African Police Service (SAPS) and in other domestic functions. The draft Defence Bill (19 August 1999) answers the question in the affirmative. The Portfolio Committee on Defence has invited public comment on this matter.

This submission to the Committee argues that, with limited exceptions, military personnel should not have police powers. Conferring such powers on troops violates the democratic principle of military subordination to the civil authority. It ignores the essential differences in orientation and training between armed forces and police services, and creates the danger of human rights abuses and excessive use of force.

Section 28(1)(a) of the draft Defence Bill provides that when members of the SANDF are employed in specified functions, they shall have "all the powers" that are conferred by law on members of the SAPS in similar circumstances. The relevant functions are co-operation with the SAPS; preserving life, health and property in emergency or humanitarian relief operations; ensuring the provision of essential services; and effecting national border control.

Regardless of the general merits of granting police powers to the SANDF, this provision is excessive in so far as it enables military personnel to exercise "all police powers" even in respect of non-policing functions. A host of civilian agencies – such as fire brigades, ambulances and mountain and sea rescue services - are constantly deployed in emergency and humanitarian relief operations without police powers.

The following White Paper provisions on `deployment in co-operation with the SAPS’ are relevant to the question of police powers. These provisions constitute an implicit argument against conferring such powers on the SANDF.

"…[T]he history of South Africa and many other countries suggests that it is inappropriate to utilise armed forces in a policing role on a permanent or semi-permanent basis. This perspective is based on the following considerations:

• Armed forces are not trained, orientated or equipped for deployment against civilians. They are typically geared to employ maximum force against an external military aggressor.

• On-going employment in a law and order function invariably leads to the defence force becoming increasingly involved in non-military activities.

• Such employment may also undermine the image and legitimacy of the defence force amongst sections of the population.

• …Efforts to apply military solutions to political problems are inherently limited and invariably lead to acts of repression.

In the light of these considerations, the policy goal of the government is to build the capacity of the police to deal with public violence on their own while political solutions are being sought or have failed. The SANDF would then only be deployed 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." [Chapter 4]

There are two main arguments against granting police powers to soldiers. The first lies in the fundamentally different orientation and functions of armed forces and police services. The second lies in the principle that armed forces in a democracy are subordinate to the civil authority.

The primary object of armed forces in a democracy is to defend a country and its people against external aggression. In the event of aggression or war, the military seeks to defeat if not destroy its adversary. Its doctrine, rules of engagement, tactics, training and choice of weaponry derive from this imperative. Soldiers are thus trained to apply maximum force and their weapons are designed for maximum lethality. Their training prepares them physically and psychologically for armed combat against enemy troops in conditions of extreme violence.

These features of the military are entirely inconsistent with the nature of policing in a democratic society. A police agency is oriented towards rendering a service to the public. Its opponents may be criminals but they are civilians and not soldiers. Operating in a domestic environment, police personnel are trained to respect constitutional rights, the rule of law and the presumption of `innocent until proven guilty’. They have a duty to behave with restraint and may therefore use "only the minimum force which is reasonable in the circumstances" [Section 13(3)(b) of the South African Police Service Act, 1995].

In contrast, the draft Defence Bill omits the word `minimum’ in allowing members of the SANDF to use force in domestic employments [Section 29(f)]. The distinction between soldiering and policing is also evident within the armed forces. Whereas troops typically carry automatic rifles or heavier weaponry, military police are usually equipped only with handguns.

The differences outlined above have profound implications for the conduct of military and police operations. By way of example, police personnel should be trained to search a house with due respect for the law and constitutional rights. Military personnel, on the other hand, are trained in `house-clearing’ which is intended to neutralise a potential threat rather than apprehend a suspect. It consequently entails the application of swift and extreme violence, such as throwing a granade into a room before entering it.

Recent events in Nigeria illustrate this point well. In November 1999 Nigerian troops were accused of human rights abuses and excessive force when they were used to quell domestic unrest. In January this year, the chief of staff of the Nigerian army claimed that the troops had been fired on: "If you stay in the house to fire at me, I will take down the house first and then take you". Yet he also argued that the army "does not feel comfortable being called in to assist the police. In future, equip the police. Let them do the job for which they are paid".

Soldiers cannot be expected to have two completely dissimilar doctrines and mindsets, one for armed combat and the other for domestic law enforcement. This would be schizophrenic and pollute both doctrines. It may result in the military becoming a surrogate police force, undermining its preparedness to fulfil its main function of defence against external aggression. Conversely, it may lead to soldiers engaging in improper policing, without adequate restraint.

The cardinal principle of democratic civil-military relations is that armed forces are subordinate to the civil authority (i.e. the executive and the legislature). This principle has unqualified acceptance in South Africa. It is endorsed in numerous ways in the Constitution, the White Paper on Defence and the draft Defence Bill.

With respect to domestic law enforcement, the civil authority is represented by the police. Where soldiers are deployed under the authority of the police and without police powers, the cardinal principle is threatened but not necessarily breached. Where soldiers are deployed in an autonomous capacity and enjoy extensive police powers, however, the principle is clearly violated. The most extreme version of this scenario is martial law, where the armed forces effectively replace the police and the civil authority responsible for governance.

In the United States, the Posse Comitatus Act of 1878 (18 USC 1385) outlaws the use of federal troops for civilian law enforcement. It prohibits the US Army and the US Air Force from arresting offenders and assisting law enforcement agencies in keeping the peace. The US Navy and the Marines adhere to the Act as a matter of policy. Congressional amendments to the legislation allow the use of defence facilities and equipment by federal authorities engaged in maritime drug interdiction, but military personnel may not be directly involved in search, seizure and arrests.

The following proposals are intended to ensure compliance with the principle of military subordination to the civil authority, and to avoid the dangers inherent in armies playing a domestic policing role.

1. The SANDF should not have police powers when employed in any of its domestic functions.
2. As argued in the White Paper on Defence, government should formulate plans to allow for a withdrawal of the SANDF from policing tasks.
3. If troops are deployed in a policing capacity, their actions should at all times be subject to the authority of a senior police officer. That officer should be empowered to issue instructions to the troops via their commanding officer. The troops may thus be called on to give effect to certain powers held by the police but they would not be able to exercise these powers independently. The SANDF would then be acting in support of the civil authority rather than assuming the responsibility and powers of the civil authority.
4. If troops are deployed in a policing capacity, there should also be an appropriate division of labour based on the different orientation and training of military and police personnel. If a house is to be searched, for example, soldiers may be tasked to cordon off the surrounding area but the search itself should be undertaken by the police.
5. Military deployment in a policing capacity should be subject to suitable rules of engagement and the Code of Conduct for Uniformed Personnel. The Code should be an integral component of training for domestic employment. The rules of engagement should be as precise as possible and should be fine-tuned to the specific circumstances of each deployment.

The preceding argument against conferring police powers on military personnel does not apply in respect of the following:

1. States of emergency and national defence. It is anticipated that the state will acquire extraordinary powers during a State of Emergency [c/f Section 37 of the Constitution, 1996]. In the exceptional circumstances that give rise to a State of Emergency, it may be necessary for soldiers to exercise police powers. The nature and extent of these powers, if any, would be determined by the President on a case-by-case basis in terms of regulations issued in accordance with the State of Emergency Act (1997) and the constraints imposed by the Constitution. The draft Defence Bill similarly enables the President to introduce regulations deemed necessary in a state of national defence [Chapter 16].
2. Law enforcement at sea. The draft Defence Bill provides for `law enforcement powers of the Defence Force at sea’ [Chapter 6]. These powers are required since the SAPS does not have a significant naval capacity. The draft Defence Bill also provides that the powers must be exercised in accordance with the United Nations Convention on the Law of the Sea (1982). A similar approach is followed by other democratic countries for practical reasons and because there is little potential for navies to threaten the liberty of citizens and usurp the authority of the civil power.

Notwithstanding the above, within South Africa’s territorial waters the Navy should provide a platform for the SAPS rather than exercise law enforcement powers itself.

3. Military police. Military police should have police powers with respect to the Military Discipline Code and the military justice system; offences allegedly committed by members of the SANDF; and offences allegedly committed by civilians on military bases.
4. Self-defence. Military personnel enjoy the common law right of self-defence. If subject to an attack or threatened by an imminent attack in the course of an internal operation, they are entitled to defend themselves with such force as is allowed under common law.

It cannot be denied that crime has reached epidemic proportions in South Africa and that the police are unable to deal with this problem effectively. Yet the problem will not be solved by introducing `bad law’ that violates the principles of democratic civil-military relations. Indeed, a host of unintended consequences might arise from granting police powers to the SANDF. The most significant of these would be abuse of constitutional rights and excessive use of force against citizens and other civilians.

Excluding police powers from the new Defence Act would not in itself preclude domestic employment of troops in support of the civil authority. It would not deny troops the right of self-defence when so deployed. Nor would it prevent the President from conferring extraordinary powers on the security services in the exceptional circumstances of a State of Emergency.

Civilian rule is basic to our system of government. The use of military forces to seize civilians can expose civilian government to the threat of military rule and the suspension of constitutional liberties. On a lesser scale, military enforcement of the civil law leaves the protection of vital Fourth and Fifth Amendment rights in the hands of persons who are not trained to uphold these rights. It may also chill the exercise of fundamental rights, such as the rights to speak freely and to vote, and create the atmosphere of fear and hostility which exists in territories occupied by enemy forces [Extract from US court decision: Bissonette v. Haig, 776 F.2d 1384, 1387 (8^th Cir. 1985); affirmed, 485 US 264 (1988)].