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South Africa's post-apartheid constitution is one of the most rights-protective constitutions of the world, a document framed to protect the country from the injustices of its grim past. Perhaps surprisingly, this paper finds that in important respects even South Africa's constitution confers striking powers on the executive in time of war or military hostilities. The paper begins with an analysis of the declaration of a state of national defense, South Africa's analogue to a declaration of war, and finds that the procedures applicable to such declarations are in most respects considerably less stringent than those applicable to the declaration of a state of emergency. While a state of emergency permits derogation from constitutional rights, and a state of national defense does not, the harsh realities of war lead to the conclusion that a state of national defense would involve serious potential limits on human rights, and so the relatively easier path to the declaration of a state of national defense is a matter of concern. In addition, the declaration of a state of national defense is not the only means by which South Africa can enter military hostilities; in fact, since the end of apartheid the nation has been engaged in a number of African peacekeeping missions (and has suffered combat deaths), apparently without any such declaration. The constitution gives the president authority to employ South African troops in defense of the Republic or in fulfillment of international obligations, and while I argue that Parliament also has authority to countermand such employments, in the absence of Parliamentary action it appears the president has authority to proceed. The most potent legislative check on Presidential authority may ultimately be the funding power, since Parliament in general must affirmatively decide to appropriate funds, though Parliament's funding authority is somewhat more shared with the executive than is the case in the United States. In sum, though South African constitutional law broadly rejects the kind of unilateral executive war power that has sometimes been asserted on behalf of the U.S. president, the substantial grant of executive authority and the relatively diminished role of the legislature in South Africa remind us that even in an intensely rights-minded constitutional system, war remains a profoundly difficult field for legal limitation.


Chapter 19 in Law and Rights : Global perspectives on constitutionalism and governance / edited by Penelope E. Andrews & Susan Bazilli