THE SADC ORGAN ON POLITICS, DEFENCE AND SECURITY COOPERATION AND THE SADC MUTUAL DEFENCE PACT

SADC MDP (Intro 1) The SADC MDP was signed by SADC HoSG Summit held in Tanzania in 2003. 12 out of 14 SADC member states have signed the MDP. As is shown by the history of the development of the MDP, this document is a baby of the SADC Organ. The objective of the MDP is to operationalise the mechanisms of the Organ for mutual co-operation in politics, defence and security matters (Article 2 of the SADC MDP). One of the principal provisions of the MDP is that member states will collectively respond in any manner they deem appropriate in the event of an attack on a member state (Article 6). This provision is similar to Article 5 of the NATO treaty.

SADC MDP (Intro 2) “However, interesting enough, Article 7 (2) of the MDP provides that: No action shall be taken by any State Party in terms of this Pact, save at the State Party’s own request or with its consent, except where the Summit decides that action needs to be taken in accordance with the Protocol”. This is based on the view that for SADC to taken any action on issues, there shall be consensus. Therefore, if a member state has not made any request and Summit has not agreed on a course of action to take, SADC will not proceed to provide the necessary support.

SADC MDP (Intro 3) The MDP also provides that SADC member states shall not harbour or support persons or groups whose aim is to destabilise other member states (Article 8). Article 9 of the MDP provides for defence co - operation. Reference is herein made to joint military exercises, training of military personnel, exchange of military intelligence, joint research and development, etc.

SADC MDP (Intro 4) The MDP appears to operate from the premise that all SADC member state’s governments shall have acceeded to power through constitutional means and shall be exercising their mandate based on free and fair elections. It is not envisaged that some governments may be in power through unconstitutional means.

Detailed Analysis of the SADC MDP

INTRODUCTION AND PREAMBLE State Parties: Angola Botswana (Ratified) DRC Lesotho Malawi Mauritius (Ratified) Mozambique Namibia South Africa Swaziland Tanzania (Ratified) Zambia Zimbabwe Pact signed by South Africa – Tabled for ratification Parliament on 11 November 2004 Seychelles to withdraw from SADC – did not sign Pact Angola has not signed the Pact

In terms of the preamble, the Pact is based on: SADCs’ commitment to UN Charter, Constitutive Act of AU, Protocol establishing the PSC of the AU and the Treaty The desire to live at peace with all peoples and Governments The commitment to SADC Treaty and Protocol on Politics, Defence and Security Cooperation Close cooperation in defence and security matters to the mutual benefit of SADC people Recognition of the sovereignty of all States, the strengthening of bonds between them, based on respect for their independence and non interference in internal affairs Promotion of peace, security, stability and well-being among SADC peoples The defence and safeguarding of the freedom of SADC peoples and their civilisation, their individual liberties and the rule of law Unification of efforts towards self-defence and preservation of peace and stability

Article 1 Definitions "armed attack" – use of military force in violation of sovereignty, territorial integrity and independence of a State Party "collective self-defence" – measures undertaken collectively by the State Parties to ensure peace, stability and security in the Region "destabilise" – to instigate, plan, execute or assist in the following: Armed attack against a State Party Sabotage aimed at people of a State Party, whether inside or outside the territory of the State Party Any act or activity aimed at changing constitutional order of a State Party through unconstitutional means "State Party" – Member State that has ratified or acceded to this pact

Implication – It is clear from the definition of "armed attack", that the use of military force against a member state will constitute an armed attack. A definition of "military force" can in itself complicate the issue of determining when an attack is an armed attack ito the Pact. Will "military force" only be interpreted as being orchestrated by another State's military forces, or can it be interpreted as certain force used by organised para-military forces such as rebel groups or guerrilla fighters. Can this "military force" be orchestrated from inside a State Party's borders, or must it be a foreign armed attack?

Article 2 Objective To operationalise the mechanisms of the Organ for mutual cooperation in defence and security matters Implication – clear from the preamble, definition of "destabilise" and the objective of security cooperation that it is the intention of the drafters of this Pact to include matters of a much wider range than only those of a military nature

Article 3 Conflict Resolution Conflict Resolution and international dispute to be settled by peaceful means in accordance with the Charter of the UN State Parties are to refrain from the threat of or the use of force if inconsistent with the Charter of the UN

Article 4 Military Preparedness State Parties shall individually and collectively, by means of continuous cooperation and assistance, maintain and develop their individual and collective self-defence capacity Implication – South Africa will be obliged to maintain certain regional standards wrt its military capacity and to work towards interoperability Implication – South Africa will be obliged to participate in multi-lateral State Party military exercises more often

Article 5 Consultation Where a State Party considers its territorial integrity, political independence and security under threat from another State Party, the threatened State Party shall consult with the latter and the then consult with the Organ Where consultation yields no satisfactory result, the Chairperson of the Organ may constitute a joint verification mission to investigate the threat Implication – in the absence of the word "or" apparently Article 5(1) will only take effect if all three factors, "territorial integrity, political independence and security", are being threatened

Article 6 Collective Self-defence and Collective Action An armed attack against a State Party shall be considered a threat to regional peace and security and shall be met with immediate collective action by State Parties Collective action to be mandated by the Summit on the recommendation of the Organ Any armed attack and measure taken in response thereto, shall immediately be reported to the PSC of the AU and the SC of the UN Implication – State Parties shall respond immediately by means of collective action. Apparently it is not necessary to respond with collective self-defence by means of the use of force. Any responsive action i.e. – the use of diplomacy, the use of measures short of force or sanctions etc, will be accepted

Article 7 Non-Interference State Parties undertake to respect one another's territorial integrity and sovereignty and to observe non-interference in the internal affairs of one another No action shall be taken to assist a State Party in terms of this Pact unless the State Party requests such action or consent to it – except where the Summit decides that action needs to be taken in terms of the Protocol

Implication – No State Party is allowed to render assistance or implement any sort of action without the consent or request of the State Party to be helped, unless specifically ordered by the Summit to do so Preferably, the nature of the assistance should be of a “collective” nature

Article 8 Destabilising Factors State Parties undertake not to nurture, harbour or support any person, group of persons or institutions whose aim is to destabilise the political, military, territorial and economic or social security of a State Party Implication – Although the Intelligence Structures already address the said matter, South Africa will derive an obligation from this pact to ensure that no destabilising factors are present in the Republic.

Article 9 Defence Cooperation State Parties shall cooperate in defence matters and facilitate interaction among their armed forces and defence-related industries on the following and other mutual interest: The training of military personnel in the field of military endeavour including joint military exercises The exchange of military intelligence and information The joint research, development and production under licence of military equipment, facilitation of supply and procurement of defence equipment and services

Implication – Budget and strategic support constraints wrt training of foreign military personnel Implication – South African Defence Industries and Armscor may have to support mutual procurement, research, development and production of military equipment

Article 10 Supplementary Agreements State Parties may in respect of any particular issue covered by this Pact, agree to subsequent bilateral or multilateral agreements of a specific or general nature

Article 11 Implementation State Parties shall receive delegations of Member States – as coordinated by the Secretariat of the SADC Organ – for the purpose of consultation regarding implementation of any aspect of this Pact

Article 12 Confidentiality State Parties undertake not to disclose any classified information obtained under this Pact or related agreements State Parties undertake not to use any classified information obtained during multilateral cooperation among them to the detriment of or against any State Party Visiting personnel shall, in the implementation of this Pact, comply with the security regulations of the host State Party and information obtained shall be treated in accordance with this Article

Article 13 Settlement of Disputes Any dispute among State Parties arising from the interpretation and application of this Pact, shall be settled amicably and if no resolution can be found, referred to the Tribunal

Article 14 Withdrawal 12 months from the date of giving written notice to the Chairperson of the Organ A withdrawn State Party shall cease to enjoy all rights and benefits under this Pact A withdrawn State Party shall indefinitely remain bound by the provisions of Article 12 (Confidentiality)

Article 15 Saving Provisions State Parties shall declare that none of the International agreements between them and a Third Party are in conflict with the spirit and provisions of this Pact State Parties shall recognise existing defence agreements provided that such agreements are not in conflict with the spirit and provisions of this Pact Where existing agreements are in conflict with this Pact, the concerned State Parties shall take steps to amend the agreement

This Pact shall not derogate from a State Party's rights and obligations under the Charter of the UN, the Constitutive Act of the AU or relevant instruments human rights and international humanitarian law Implication – South Africa will have ensure that defence related bilateral agreements comply with this Article Implication – This Pact will have to be considered during the negotiation and drafting of all future bilateral agreements

Article 16 Signature The Pact must be signed by duly authorised representatives of State Parties to the Protocol on Politics, Defence and Security Cooperation

Article 17 Ratification This Pact shall be subject to ratification by the signatory States in accordance with their respective constitutional procedures Implication – South Africa must ratify this Pact in terms of section 231(2) of the Constitution Implication – Where not possible to implement the provisions of this Pact directly, implementation by means of incorporating legislation will be necessary

Article 17 Accession This Pact shall remain open for accession by any State party to the Protocol on Politics, Defence and Security Cooperation

Article 19 Amendments Any State Party may propose an amendment to this Pact Proposals to be made to the Chairperson of the Organ who shall duly notify all State Parties of the proposed amendments An amendment shall be adopted by decision of three quarters of all State Parties

Article 20 Entry into Force The Pact shall enter into force 30 days after the deposit of the instrument of ratification by two thirds of the [Member States]

Article 21 Depository The original texts of this Pact, and all instruments of ratification and accession, shall be deposited with the Executive Secretary, who shall transmit certified copies to all Member States in English, French and Portuguese The Executive Secretary of SADC shall register this Pact with the Secretariat of the UN and the Commission of the AU

Article 22 Breach of the Pact Any State Party may report an alleged breach of the Pact to the Chairperson of the Organ, who shall institute an investigation, compile a report and make recommendations to the summit