Is Military Service Mandatory in South Africa?
Since the dawn of warfare, conscription has existed in some form or another, and it has been a controversial and divisive topic for just as long. But does this affect South Africa? Is Military Service Mandatory in South Africa?
Since 1993, conscription into the military has not been active in South Africa. The constitution may, however, reinstate mandatory military service during a war or time of emergency. Military conscription in South Africa was formally abolished in 1993, although some citizens who had already been conscripted before the announcement was made, were forced to attend ‘camp call-ups’ for at least another year.
Following the end of Apartheid, the country adopted an all-volunteer force, citing both moral and practical reasons for the switch. Nations have oftentimes attempted a balancing act between the rights of the individual and the necessity to defend themselves. Depending on who you ask, a military draft can either be viewed as a vital defensive measure or a trampling of the people’s liberties.
The country currently has no official form of mandatory military service although there is some debate over whether or not a declared state of emergency would give the president and legislative branches authority to reinstate such an act.
History of the Draft in South Africa
On the 9th of June 1967, a bill was passed in South Africa that called for 9 months of compulsory military service for all white males between the ages of 17 and 65 years old. This bill came at a time of increased authoritarianism within the country and existed as an attempted bulwark against the rising levels of dissent and civil frustrations.
As time went on public opinion of the Apartheid regime both internationally and locally continued to deteriorate. This caused the ruling party to become even more militaristic and eventually, the draft had extended in length to a period of 2 years along with 30 days annual service for 8 years.
Conflicts in neighbouring countries also led to a demand for increased fighting power, however, due to concerns over an armed and well-trained black majority, the draft was limited in scope to white males. Individuals who refused military service were sometimes given a 6-year jail sentence.
In 1983 the End Conscription Campaign(ECC) was formed which united and organised the various factions that opposed the draft. In 1988 the ECC was outlawed but by the early ’90s, the country was already making moves to phase out the practice as the nation moved towards its new democracy.
Does the Constitution Allow Mandatory Military Service?
The short answer is, probably not. Professor Stephen Ellmann, an expert on South African law, notes that South Africa has a robust parliamentary system to safeguard against unilateral executive war powers.
Simply put, Ellmann believes that the constitution’s provisions regarding individual rights cannot be easily overridden even during an emergency scenario. There are, however, some recent events that may disprove this theory. First, though, we need to consider the main arguments against the draft.
The Constitutional View on Military Service
The Constitution of South Africa views conscription into the military as problematic for 3 main reasons –
- Division and brain drain – The draft’s racial basis was extremely contentious, non-white citizens were outraged at their exclusion from the military while many white citizens attempted to avoid mandatory service at all costs, this often resulted in said citizens leaving the country to escape service which then caused a massive ‘brain drain’ throughout the country.
- The rights of the individual – As the country transitioned out of the Apartheid regime, a new focus was given to liberalism and individual rights. Many believed that mandatory military service was antithetical to section 13 of the new constitution which made provisions against forced labor or servitude. This issue is exacerbated when we consider personal objections towards service. For example, many people resisted military service as they opposed Apartheid and did not wish to encourage its enforcement.
- Practicality – Following the end of Apartheid, the new government highlighted an interest in reducing military actions and spending across the board. This was completely contrary to the far more militaristic administration just years before. As a result, the need for new recruits and volunteers was steadily decreasing. The new South Africa did not require a huge standing army ready for deployment and thus it was believed that the new military could be sustained with volunteer service only.
Could the Draft be Reinstated During a War or Emergency?
The definitive answer? Maybe.
As previously mentioned, the constitution strongly reinforces the rights of individuals and seemingly deters the government from forcing the citizenry into any type of unwilling service. However, it must be noted that the constitution does make allowances for the suspension of certain rights during times of emergency. This does include times of war and disaster as pointed out by sections 36 and 37 of the constitution.
Conversely, some rights are seen as non-degradable and in theory, cannot be infringed upon regardless of the situation.
These non-degradable rights are:
|Section Number||Section Title||Extent of protection|
|9||Equality||With regard to unfair discrimination based on race, ethnicity, sex, social origin, language and religion|
|12||Freedom and security of the person||With regard to subsections 1(d), (e), (2)(c)|
|13||Slavery, Servitude and Forced labour||With regard to slavery and servitude|
|28||Children||With regard to subsections (1)(d), (e), subparagraphs (i) and (ii) of (1)(g) and subsection 1(i)|
|35||Arrested, detained and accused persons||With regard to subsections (1)(a), (b), (c) and (2)(d). Subparagraphs (a) and (o) of (3) excluding paragraph (d). (4), (5) with regard to information exclusion if evidence admission would render the trial unfair|
To sum up, it is improbable that the military draft could be reinstated in South Africa due to the fundamental contradictions between forced service and the bill of rights; however, some sources do argue that these rights could be partially and/or temporarily suspended during a war or similar emergency thus allowing for its return.
Arguments in Favour of Conscription
Recently an ANC-led alliance proposed the return of mandatory military service. Their main argument was that the SANDF is uniquely equipped to provide the country’s youth with basic skills while instilling a sense of patriotism, responsibility and a better work ethic.
This proposal reflects a particular opinion regarding the undercurrent of South African society and culture, namely, the view that a lack of formal training and authority figures has led to a lazier, less patriotic youth who does not recognize the importance of responsibility, leadership and duty.
Advocates of this argument believe that many current societal ills can be remedied by forcing military training and ideals onto the country’s populace.
Arguments Against Conscription
Following the ANC-led proposal, the DA was quick to release a statement condemning military conscription. Their chief contention was that the army was not a machine used for youth training or job creation and that the army should be viewed as a defensive apparatus and not as an outlet to fix any perceived social failings.
The DA also pointed out the constitutional protections in place and argued that mandatory military service would violate the public’s rights to freedom of movement, conscience, thought, and opinion. Other dissenters also argue that conscription is barely acceptable even in times of war (or perhaps never) and thus, any idea of a draft during peacetime is neither moral nor necessary.
Additionally, research consistently shows the negative effects of PTSD in military veterans, notably among drafted individuals. While this may not apply to peacetime drafts, it does argue the point that forced military service may not result in myriads of well-adjusted, responsible individuals leaving the armed services and may instead create an increase of damaged and dependent people throughout society.
In Conclusion – Does mandatory military service exist in South Africa and what does the constitution say about it?
Since 1993, conscription into the military has not been active in South Africa.
The country had undergone a dramatic rise in mandatory service during the Apartheid era as the country became increasingly militaristic but, after the establishment of a new democracy, the practice was no longer viewed as constitutional and, thanks to a decrease in military action and spending, it was no longer seen as necessary.
Since the abolishment of the draft, many scholars have argued over whether or not it or maybe constitutionally reinstated.
Some argue that it is directly at odds with sections of the bill of rights that protect freedom of movement, opinion and conscience. They also indicate that the idea of a draft is opposed to prohibitions against servitude.
Others point out that the constitution does allow certain rights to be partially suspended in scope during times of war or extreme emergency. They argue that this provision may give the government the authority to force the citizenry into military service if such an action is necessary to ensure the safety of the nation.
Some parties and organisations have recently made appeals to reinstate the draft as they view it as an outlet to train and discipline the youth and wayward parts of the population. Others argue that the military should only be regarded as a shield with which to protect the country and should never be used solely as a channel for instruction or reduction of unemployment.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although in many instances, our posts cite the constitution, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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