MKMVA and the limits to freedom of association

9 May 2017

Friday 7 April was a momentous day across most of South Africa’s larger cities. In response to current events, including the downgrading of South Africa’s economic prospects by international ratings agencies, thousands of South Africans took to the streets to demand firmer, ethical and more decisive political leadership. While the protests were largely peaceful it is worth noting that Luthuli House was surrounded by men in camouflage, ostensibly uMkhonto weSizwe Military Veterans Association (MKMVA) seeking to “defend” the headquarters of the governing party.

Move, a month later, to 7 May, this time to Vuwani, in Limpopo province. The area has been the site of violent protests, which have seen the destruction of over 20 schools. The Vuwani residents oppose their incorporation into a new municipality and have been protesting for close to two years. As such, the 7 May gathering - which President Zuma was meant to address - was intended to reassure the community of an attentive Executive, willing to listen, at the very least, to the demands its citizens. Only, President Zuma did not attend the event as scheduled, reportedly, due to security concerns. Nevertheless, MKMVA members were present, clad yet again in army fatigues.

One could be forgiven for assuming that the governing party has a private army - ready to defend the interests of and to quell any dissention arising which may threaten the ruling party or its individuals. After all, the Constitution provides for freedom of association and it is well recognised that freedom of association is a vital component of a well-ordered society. Participatory democracy is enhanced through the freedom to associate freely. Given that the Constitution represents a definitive break with South Africa’s apartheid past - the freedom to associate freely is one key pointer to a decisive break with the past. Groups of individuals are more likely to make themselves heard through their collective efforts. But does that freedom of association extend to pursuits which threaten the wellbeing of society or individuals?

While uMkhonto weSizwe was the armed wing of the governing party during the apartheid years, all armed action was suspended in 1990. Former soldiers were integrated into the South African National Defence Force (SANDF), the South African Police Service (SAPS), as well as the public service.  What remains of the group is a voluntary association of veterans whose stated aim is “…integrating ourselves to the society by empowering ourselves politically, culturally and socio-economically.”

In terms of the Constitution, only the Defence Force is to defend and protect the Republic, its territorial integrity and its people, in accordance with the Constitution and the principles of international law regulating the use of force. The Defence Act further only applies to the SANDF and any auxiliary service which the Minister of Defence may appoint. Any such auxiliary appointment is then bound by the provisions of the Defence Act. Importantly, the Defence Act establishes principles which govern the SANDF. Such principles include the prohibition of prejudicing party political interests or acting in a partisan fashion to further party political interests. South Africa has a thriving private security industry which nonetheless operates in a highly-regulated environment, requiring both individual, as well as organisational accountability, with the Minister of Police having ultimate oversight function over the industry.

As it appears, the MKMVA - dressed in military fatigues, and making postures about the use of force - could very well be viewed as a non-state army, without being recognised by the Constitution, the Defence Act and even the Private Security Industry Regulation Act. Clearly this exceeds the boundaries anticipated by the freedom of association for which the Constitution provides. In any event, quite a few of the members of the MKMVA appeared to be of an age that belied the “veteran” status. This suggests that young people are being manipulated as the political need arises. In a country with a large youth population - with the highest rates of unemployment in this group - this political recklessness does not bode well for the nation’s future stability.

That there already exist bodies, including the SAPS, which can conduct the security and protection-related aspects of the MKMVA means that there is no justification, at least under freedom of association, for the conduct of the MKMVA. This is not to suggest that there is no longer a place for the MKMVA in democratic South Africa - on the contrary - it is perhaps groups like them which lived through the brutal years of apartheid which have a vital role to play in nation-building in the constitutional democracy. That role, however, excludes attempts at intimidation and supplanting the work of legally-recognised bodies, whose role is to provide security for the nation. 

By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights