Abstract
This article discusses the possibility of South Africa enacting a new law regulating private military/security companies (PMSCs) beyond the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act of 2006. It argues that such a possibility arises from the policy direction expressed in the Defence Review of 2012, and the recent developments at the international level, which indicate a shift towards accommodation of PMSCs as legitimate players in the security sector. The article surveys the current state of national and international law relating to PMSCs and illustrates how the emerging shift from prohibition to regulation has affirmed the need for legislative intervention in this field. It concludes that since the future is on the side of regulation and not prohibition, legislation that furthers the policy agenda envisioned by the Defence Review 2012 may be the best tool to unlock the inhibitions of the past and create a viable climate for reframing the debate on domestic law governing private militarism in South Africa.
Highlights
The arrest in February 2013 of twenty suspected Congolese rebels, allegedly training in South Africa to overthrow Kabila's government,[1] carries potent symbolism of the vestigial gaps in South Africa's security infrastructure, even as it struggles to find its feet in the post-apartheid environment
Independence,[4] the conclusion that South Africa is yet to overcome its security problems may not be far-fetched. Just as these events may be unsettling to policy makers and government officials, given the prominent role that South Africa plays in continental governance,[5] they have re-ignited debates on how the country should deal with the new face of privatisation in the security industry — the private military and security companies (PMSCs)
Apart from being the secretariat for all activities mandated by the Act, the ONS is responsible for licensing of all PMSCs in accordance with set regulations, and ensuring that PMSCs comply with the Standard Operating Manual for Private Security Companies (SOP) promulgated in 2006.107 The Sierra Leonean law demonstrates that it is possible for states to tailor their institutional arrangements to match their particular circumstances
Summary
The arrest in February 2013 of twenty suspected Congolese rebels, allegedly training in South Africa to overthrow Kabila's government,[1] carries potent symbolism of the vestigial gaps in South Africa's security infrastructure, even as it struggles to find its feet in the post-apartheid environment. Propelled by political impulse rather than objective assessment, the Act merely responded to the need to curb armed activities that went against the grain of South Africa's most touted desire to be the kingpin of continental peace and security.[8] the law was based on a policy framework which did not envisage the surge on liberalisation in the security sector that we see today. We take a comparative survey of the current state of international law relating to PMSCs and illustrate how the emerging shift from prohibition to regulation has more than affirmed the need for legislative intervention In this regard, we interrogate whether the evolving policy framework is setting a new agenda for legislative action concomitant with developments at the international level. The policy agenda envisioned by the Defence Review may be the best tool to unlock the inhibitions of the past and to align South Africa's security aspirations with those of the rest of the world
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