08/02/2017 08:34 GMT | Updated 08/02/2017 10:20 GMT

Sona's Shock Troop Deployment May Be Illegal

Constitutional law experts believe if the president did not follow legally defined prescripts to the letter, he may be in breach of the law.

Deaan Vivier / Gallo Images
The SANDF during Nelson Mandela's procession to the Union Buildings on December 11, 2013 in Pretoria.

The decision by President Jacob Zuma to deploy troops to Parliament may be illegal if the letter he has sent to Parliament –- published in Wednesday's parliamentary papers –- is all communication between the executive and the legislature.

This is according to Professor Pierre de Vos, constitutional law expert at the University of Cape Town. He told the Huffington Post South Africa on Wednesday the constitutional and legal prescripts are quite clear about the limitations within which a head of state can deploy the country's soldiers and that there are three steps to which such a decision must conform.

"The first step is the notice to Parliament, in which he must clearly state the reasons why he has taken such a decision. He needs to explicitly explain: 'The army will be deployed to assist the police because the police cannot ...' or something to that effect.

"Secondly, the minister of police needs to publish a notice of the police and army's cooperation within 48 hours in the Government Gazette.

"Thirdly, the police and army are not allowed in the parliamentary precinct according to the Powers and Privileges of Parliament Act. They can only enter at the invitation of the Speaker, under who's jurisdiction Parliament falls," said De Vos.

If these criteria are not met, it could be argued in court that Zuma acted illegally and outside of his mandate, said De Vos.

Zuma, in his letter to the Speaker, gives no reason why the 441 troops are being deployed, merely that they will assist the police in maintaining law and order. The notice clearly does not conform to De Vos's analysis.

Political analyst Ralph Mathekga says South Africans are correct to be worried about Zuma's militarisation of the opening of Parliament: "He is securitising normal democratic tension ... the right to public protest is part of our political life, and his actions will create a siege mentality."

Mathekga said it was clearly a "show of strength" on the part of the president, "which we have seen elsewhere in Africa: a head of state, under pressure and parading around his troops".

"He is indicating that he will now start to block dissent and this will have an effect on citizens' approach to protest action. It is not good," Mathekga added.

Theo Venter, a political analyst at North-West University, said the use of the military for ceremonial purposes is above board and part of tradition. It is, however, "very problematic" that troops are called in to help the police.

"Does this mean the police aren't up to the task? That the parliamentary security services can't do their job? We don't know," said Venter.

"I do, however, wonder whether the tactic is for the police to provide a tight inner-ring of security and the troops a tight outer-ring. It is clearly a show of force, and in situations like this, it is always safe to defer to what the Constitution says. We must be worried," said Venter.