The Distinction between Military Aid to Civil Authorities and Civil Power
By Lt Gen (Rtd) Denga Ndaitwah
THE gist of this article is not to talk of what is happening on the ground, but rather to bring out the principles within which the Namibian Defence Force (NDF) can be deployed for whatever given operation.
First, it is very important to understand the fundamental law that brought NDF to existence. The NDF exists by virtue of the supreme law of the land. Chapter 15, Article 118 (1) states that, “There shall be established by Act of Parliament, a Namibian Defence Force with prescribed composition, powers, duties and procedures, in order to defend the territory and national interests of Namibia”.
The same chapter, Article (2) stipulates that “The President shall be the Commander-in-Chief of the NDF and shall have all the powers and exercise all functions necessary for that purpose”.
We can learn from the above that the primary constitutional mandate of the NDF is “to defend the territory and national interest of Namibia”. What does that mean? It means the NDF must be composed into functional parts that must operational all the time.
Based on the constitutional mandate, the NDF is composed of the army, air force and navy. To be operational, NDF members must be well-trained and well-equipped to be able to be deployed for the defence of this country, as stipulated in the Constitution. That posture is not unique to Namibia. It is a general practice for every defence force on this planet.
The NDF has on a number of occasions been deployed for combat and peace support missions. That includes the combat deployment to the Democratic Republic of Congo (DRC) and pursuit operations into Angola against UNITA bandits at that time. The NDF was also on numerous occasions deployed for peace support operations to different parts of the globe.
Based on all those combat and peace support operations, the NDF has proven to be a force to be reckoned with. It was through all those operations that I can quantitatively say with pride that the NDF is up to standard to execute its constitutional mandate, as it may be directed to do by the Commander-in-Chief.
Apart from the spelled out Constitutional mandate, the NDF shall also stand ready to execute some operations other than war. That may include Military Aid to Civil Authorities (MACA) and Military Aid to Civil Power (MACP). Both MACA and MACP are always necessitated by a specific demand and differ in nature.
Let me try to bring out the difference between the two concepts. MACA refers to a situation when the military is called in by civilian authorities to support the government in the event of natural calamity, involving disasters like earthquakes, extensive veldfires, droughts, floods, etc.
In such a situation, the military can be ordered to deploy their appropriate equipment to deal with the situation. As the country is prone to droughts and floods, for a number of years we have been witnessing the deployment of the NDF to render aid to the government. The NDF has been involved in transporting food relief to needy people whenever there is drought and/or flooding.
The NDF has been ferrying people from flood-affected areas to highlands for their safety. As we are faced with a similar situation this year, NDF troop movements are noticeable on the roads delivering food relief to wherever it is needed. In most cases, those positive supports rendered by the NDF always go unnoticed by the public.
It must, however, be noted that during MACA operations, there is no need to deploy troops with their service fire arms, but with appropriate equipment that suits the nature of the operation only. Suffice to say, it is hoped that this brief explanation was enough to enable readers to understand the meaning of MACA.
MACP on the other hand is the calling out of military troops by an appropriate authority to help maintain or restore public order. As we may be aware, maintenance of law and order is naturally the responsibility of the police.
However, should the situation be considered to be getting out of hand and beyond the police’s control, the military may be called in to assist the police in the restoration of law and order. The deployment of the military to assist the police is only done when extremely necessary and where the police fail to maintain law and order.
We must understand the danger of deploying the military.
First, the military in such a situation will always deploy with their service fire arms. Second, soldiers are trained to fight and not necessarily to maintain law and order by way of policing. Third, there may be a mishap during operations, more so if soldiers are not properly briefed about their role. Fourth, there must be an effective command and control to ensure a constant link between the deployed units and the force controlling authorities.
Based on those premises, there have been outcries in this country by both politicians and communities that the NDF is just milking the government by simply getting paid and not doing anything. On numerous occasions, there have been calls by both politicians and communities that the NDF must get out of the barracks and patrol localities in order to curb crime.
It can be deduced that those outcries are two-fold. Those calls were made by genuine and concerned people who strongly feel that their security and safety is at peril. The same outcry may be made by people who are either ignorant about the constitutional mandate of the NDF or by those who want to test the government‘s reaction capability pertaining to security issues.
During the course of last year and this year, the Commander-in-Chief made a decision for the deployment of the NDF to assist the police in curbing crime. Initially, the current Operation Kalahari Desert was seen as a saviour by some communities, while in certain quarters it was considered as a political ploy, given that this is an election year.
That is where the operation started becoming a political issue, instead of focusing on the security aspect. Unfortunately during the same operation, there was a recorded loss of life. It is regrettable that any loss of life remains irreplaceable. However, regrettably again, the issue became more political and legal than death.
As it stands now, there is a case filed against the government and a constant call for the withdrawal of soldiers from the operation.
Remarkably, after that fatal incident, this nation is now highly divided. There are those who applaud Operation Kalahari Desert, claiming it brought about a reduction in crime. There are those who are against the operation, calling for the withdrawal of soldiers from that operation.
Analysing it from both sides, it may be difficult now to strike a balance between those who are willing the operation to continue and those who demand that the soldiers be withdrawn from the operation. However, it remains within the power of the Commander-in-Chief to decide what appropriate decision to take.
The point is that people by their nature are an enigma. They are so enigmatic that they can be persistent in their demand, knowing well that after their demand was met they will have yet another demand. That means it will be a chain of endless demands. Some of us fully understand the legal and political minds of our people. Therefore, the current demand to withdraw soldiers from that operation did not come as a surprise to some of us.
It must be underpinned here that the deployment of soldiers for MACA has no restrictions, as the kind of assistance is always a life-saving measure. It is so because there may be no other bodies with the same capability to save the lives of people from the kind of situation. The civil authority may possess a capability, but the need to urgently act and deploy them may be lacking.
While there are no restrictions when providing services to MACA, providing assistance to MACP is more cumbersome as it needs thorough considerations because soldiers will deploy in a different environment. The point is that all operations must be conducted within both civil and military law.
Failure to comply with this principle may result in criminal or civil law proceedings against soldiers or the Ministry of Defence (MOD) that lawfully deployed those soldiers. Unlike the police and some civil agencies, members of the force must not be deployed as the lead elements. They must be deployed as a fall-back (deterrent) support to enable the police to perform their constitutional function.
In a nutshell, politicians and ordinary people in this country must learn to understand the constitutional mandate of the NDF. That is so important because it shall help all of us before any demand is put forward. It is however imperative to underscore that legally the NDF can be deployed for both MACA and MACP, as may be necessitated by the situation.
While the deployment for MACA has no restrictions, deploying for MACP would need the exercise of a legal mind, training, briefings on the limitation and conduct, as well as effective command and control. Soldiers who are well briefed and under effective command and control are always obliged to execute their given mandate within the limitations of law.
In the final analysis, the deployment of the NDF during Operation Kalahari Desert must be seen as an effort to curb crime within the designated areas. In this context it is understood from those who are living in those crime prone areas that the level of crime has reduced drastically; and there is a demand from the affected communities for the operation to continue.
Lt Gen (Rtd) Denga Ndaitwah is the former Chief of the Defence Force, a holder of Master’s Degree in Strategic Studies, HOD and Senior Lecturer at IUM. These are author’s independent reflections and views.