7 November 2005

South Africa: State Moves to Ban SA Soldiers From Foreign Forces

Johannesburg — GOVERNMENT may soon try to make it difficult for South Africans to serve in the British army without its permission. According to the UK defence ministry, there are more than 700 South Africans serving in its armed forces.

A wide-ranging bill, introduced in Parliament this month and likely to be passed early next year, is aimed at cracking down mainly on mercenary activities.

The Prohibition of Mercenary Activity and Prohibition and Regulation of Certain Activities in an Area of Armed Conflict Bill of 2005 also has provisions making it illegal for South Africans to serve in the armed forces of any foreign state without permission.

Controversy over the bill has largely focused on its implications for the estimated 4000 South Africans, mostly former defence force and police special task force members, working for private security companies in Iraq.

Another area of controversy in the bill is its extraterritorial reach in making it possible that an executive of a foreign company with no business in SA but with business in, for example, Iraq, can be arrested for violating the law.

There is no indication that government has been able, or willing, to crack down on its citizens serving in Iraq or the British army under existing laws. But the introduction of the bill could indicate a new intent.

There has been an outcry from the Democratic Alliance over the bill, because of the discretion it gives government to determine who will serve abroad in conflict zones. If the bill is passed, government can decide in which conflict areas South Africans can fight and work.

One possibility is that South Africans will be able to fight in what government views as wars of liberation, but not in conflict areas where the United Nations has a mandate.

The number of South Africans serving with British forces has doubled over the past two years, although existing legislation makes it highly likely that their actions are illegal.

The Foreign Military Assistance Act, passed in 1995 -- the law that Mark Thatcher pleaded guilty of breaking with his role in a coup attempt in Equatorial Guinea -- already makes it illegal for a South African citizen to join a foreign armed force.

Permission to serve in a foreign force is required from the National Conventional Arms Control Committee, the parliamentary body which also grants permission for arms exports.

However, under draft laws, individuals joining any foreign force will have to get government permission to join up, and then separate, further permission to be sent to a conflict zone.

It is not certain that government will stop South Africans serving in the British army. If South African-made armoured vehicles are being used in Iraq and Afghanistan, the question will have to arise why South African citizens cannot serve there.

It is likely that some South Africans who wish to join a foreign army may take the risk and do so without government permission. Some may become citizens of the country for which they are fighting, due to their service.

After five years of serving in the UK armed forces, a foreigner has met the country's requirements for citizenship, and can obtain a British passport.

"The legislation is unworkable," says Peter Leon, a partner at Webber Wentzel Bowens, who advises clients on the implications of the legislation.

Leon believes the draft bill is likely to struck down by the Constitutional Court, on the grounds that section 22 of the constitution guarantees South African citizens the right to occupational freedom, and professions that are now legal cannot be outlawed.

The draft legislation proposes a fine or imprisonment, and possibly both, for contraventions.

There is no indication yet of the sentencing that will be imposed for contravening the act, if it is passed.

"No South African citizen or permanent resident may enlist with any foreign armed force, including an armed force of any state, unless permission is granted," the bill reads.

The procedures for asking permission are not laid down, and neither is a minimum time frame in which the committee must respond to people seeking permission.

The bill also states that there will be a fee for every application. People serving in any armed force of a foreign state or a private military company will have to register with government within six months of taking up employment.

At 700, the number of South Africans serving in the British forces is less than 0,4% of its strength. However, the British armed forces are becoming increasingly reliant on foreigners as domestic recruitment is becoming more difficult.

There are many more Nepalese, Fijians, and Jamaicans serving in the British armed forces than South Africans. However, should government try to crack down on those joining up, there is certainly likely to be deep concern voiced in London.

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