Determining a role for a military ombudsman in the South African National Defence Force

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By Phasoane Mokgobu Policy and Strategy Analyst, Defence Research Centre

Published in African Security Review Vol 8 No 1, 1999

The expected function of the South African National Defence Force (SANDF) is to serve and protect the interests of the people of South Africa and to protect the territorial integrity of the country. Although the necessity for a representative and well-functioning defence force within South Africa’s democratic constitution is axiomatic, this also requires maximum support from those institutions which bolster and promote democracy. It must be kept in mind, that the realisation of a democratic political system in South Africa, among others, has also led to a new and very different national defence force. The SANDF must therefore accept that it needs to implement more democratic administrative systems within its organisation.

One of the most important concepts of defence in a democracy, as can be derived from the White Paper on Defence and the South African Constitution, is the requirement to cultivate and nurture mutual trust and confidence in the public service and in the SANDF. The various systems which support democracy all have reasons for their existence and, in most cases, address those questions which arise from the need to consolidate a democratic political system. Within the defence context, concerns which are most often raised with regard to mutual trust and confidence in the SANDF, include the following:

What properly defined grievance handling mechanisms does the SANDF have?



Are there any effective control measures for maintaining and sustaining healthy civil-military relations in a democratic political system?



In the absence of the normal representative spokesperson, what relevant avenues are available, if any, for the use of individual military personnel, once the traditional avenues of the Military Disciplinary Code and Defence Directives are exhausted?



In a case where all the traditional processes have failed, is it really necessary for the President to be the only hope of last resort?



Is it not possible, given the above concerns, that the good intentions of democracy may be derailed?

It must be accepted that military personnel are liable to be concerned if they believe that they are unable, or unlikely to achieve a fair hearing about their treatment by units or divisions in which they serve. They can often feel victimised by bureaucratic delays and perceived administrative rejection and/or unfairness. It is alleged, for example, that military personnel "... are being court-martialled unnecessarily over less than serious issues and that an average of between 60 to 100 cases are handled each month."¹ Such perceptions tend to alienate serving personnel from the SANDF authorities. In this process of alienation, many with legitimate concerns may become nervous about following the existing ‘normal’ procedures for registering complaints about perceived unfairness, incompetence or even just simple omissions.

Britain and many of the Scandinavian countries, like most democratic countries around the world, provide the lead to new parliamentary democracies such as South Africa, by clearly demonstrating that Parliament is the supreme national authority. In these countries, parliament alone makes all the final decisions on defence issues, including the allocation of resources and the institution of control mechanisms. Although these parliamentary control mechanisms for defence vary from democracy to democracy, they usually include matters such as budget control by parliamentary defence committees, the hearing of petitions, raising of problems through questions posed to parliamentarians, and more. In some cases, these mechanisms include a public protector or military ombudsman who safeguards the rights of military personnel and emphasises democratic constitutionalism within the defence force.

The aim of this article is to demonstrate the need for, and the viability of a military ombudsman in the South African context, in the belief that this is in line with the content and interpretation of the ambit of the Public Protector, thereby harmonising and balancing forces in the defence environment. Pertinent to this aim is the need to elaborate on the history, roles, functions and responsibilities of the military ombudsman elsewhere in the world, in order to be resourceful in providing cardinal points for possible implementation in South Africa.

The word ‘ombudsman’ is Swedish in origin and means ‘defender of’, ‘spokesperson for’ or, more broadly, any person authorised by others to act on their behalf and serve their interests.² However, the origins of the concept can be traced back to the Han Dynasty of China in the period between 202 bc and 221 ad.

In 1713, the then exiled King Charles XII of Sweden first appointed a representative as an ombudsman. This officer, who in time became known as the Chancellor of Justice, was appointed to investigate complains against royal officials.³ In effect, this was an office established to watch over royal officials during the king’s absence and to deal with any unrest and disorder which might arise in the country. Among other things, this first Swedish ombudsman was responsible to ensure that civil servants fulfilled the obligations imposed upon them by the country’s statutes.⁴

The first formal ombudsman’s office was established in Sweden in 1809 when the Swedish Parliament appointed its own officer, the Justitieombudsman, to investigate complaints from citizens. In 1915, the power to investigate complaints against military personnel was transferred from the ombudsman for justice to the newly created office of the ombudsman for military affairs.⁵ From these origins, the concept of an ombudsman as an impartial adjudicator to resolve disputes grew to the extent that, in the twentieth century, it has become a generally recognised concept, initially in Europe and later throughout the world. Today, there are many ombudsmen in many countries.

Much of the growth in the utilisation of an ombudsman office has occurred in the post-World War II period, and is especially noticeable for its inclusion in an increasing number of new political systems and new constitutions being adopted in the developing world. The adoption of this system in many developing countries has been facilitated by the fact that most have a pattern of administration that is imitative rather than indigenous. Most countries, including those that escaped colonial subservience, have tended to introduce some version of modern Western bureaucratic administration, usually modelled on the administration of a particular colonial administrative model. In these countries, the trigger for the acceptance of the ombudsman concept in the early 1960s, was a series of discussions among scholars and jurists, as a result of which Guyana in the Caribbean, Tanzania and Israel were among the first countries to adopt such a system in 1966.⁶

The first South African ombudsman, appointed in 1979 in terms of the Advocate-General Act No 118 of 1979, as amended by Advocate-General Amendment Act No 55 of 1983, was known as the Advocate-General. The Act makes provision for the establishment of the office of the Advocate-General, and provides for the appointment of a person to that office. The Act further determines the duties and powers of the office. Appointed by the then State President, the Advocate-General was empowered to inquire into any matter laid before him by any person who had reasonable grounds to believe that there was any form of dishonesty in dealings with public moneys as prescribed in the Act.⁷

The need for this office was apparent after the facts about the Information scandal had come to light. It was created in the aftermath of the inquiry concerning the former Department of Information. Brynard describes the office of the Advocate-General as comparable to that of the Special Prosecutor of the United States, which was also instituted in similar fashion in the wake of the Watergate scandal. It is claimed that the primary reason for the creation of the office of the Advocate-General was to maintain honest public administration and orderly government. It was therefore created to fulfil a need of the government rather than as a result of the need of the citizens. However, it is worth noting that both the Information and Watergate scandals demonstrated that, where more power is given to the executive, there is a subsequent need to safeguard the citizens from the arbitrary or unfair exercise of that power. It is also clear that the office of Advocate General was created without a proper and thorough study of or an investigation into the basic needs of the greater South African society.⁸

The Advocate-General Amendment Act No 104 of 1991 was formulated to amend the Act of 1979 in order to redefine ’public moneys’. At the same time, this amendment also changed the designation of the office from that of Advocate-General to Ombudsman and made provision for the appointment of a suitable individual to this office by the President, as well as setting out the conditions of employment of such a person.

Subsequently, Sections 110 to 114 of the 1993 Interim Constitution of the Republic of South Africa, (Act No 200 of 1993), make provision for the establishment of the office of the Public Protector to investigate matters and to protect the public from aspects, such as maladministration with regard to the affairs of government, as well as from improper or unlawful enrichment of any person or persons performing a public function, especially where such enrichment causes prejudice to another person.

The Public Protector Acts (Act No 23 of 1994 and Act No 108 of 1996) provide for a number of matters incidental to the office as contemplated in the Constitution. These Acts make provision for the establishment of the office and the governing principles of the Public Protector, in terms of which s/he may appoint or delegate a person or persons, as determined by the law, for the discharge of the work of the office.

In many democratic societies around the world, such as Sweden, Finland and Norway, it has been deemed worthwhile to adopt the concept of a military ombudsman. In most of these countries, the first military ombudsmen were appointed when the level of defence activities and recruitment to the armed forces reached an extent that necessitated measures to secure both the well-being of the individual soldier and a system for dealing with conflict from different angles.

The concept is now well-established in these countries and, since its inception, has played an important role in solving a multitude of interpersonal conflicts. This, in turn, has contributed considerably towards maintaining an atmosphere of transparency and trust within the various sectors of their defence families.

In all these states, as well as in South Africa, the requirement for military personnel to display a sense of responsibility when performing their official duties is generally accepted by both the public and the military. Furthermore, since the objective of every public institution is to promote the welfare of its own society, any product of the actions of military personnel should also be of value to the general citizenry. Keeping this in mind in a democratic society, situations could arise where it is critically important to handle them with sensitivity and in a responsive and responsible manner. This is especially the case when official action has to be taken with regard to a matter that will be considered after some aspects have already been looked at in camera and are therefore not visible to the public. The result of such an action may be that different groups have differing perceptions of the outcome when it is made public.

While public accountability, the tenets of democracy and public awareness of the need for sensitivity and responsiveness in human relations can be maintained by encouraging the correct attitudes towards the provision of an excellent military service, it remains necessary and relevant to have control mechanisms for those incidents which may fall through the conventional safety net.

In the South African scenario, there are already various ombudsmen in place, such as in the insurance, health and banking sectors. It is important for the civil service, the military and the broader civil society to take cognizance of the activities and function of these offices, as they may be relevant and applicable. Furthermore, the need for the military ombudsman is already widely recognised in many debates and discussions. Is the time therefore not ripe to expand the use of an ombudsman to the military?

In terms of the internationally accepted role of this office, its function is merely to investigate and propose solutions. The establishment of such an office, therefore, does not have to be seen as a threat to any existing authority. The scope of activity of a military ombudsman will be dependent, to a large extent, on the intent, influence and nature of the developing defence environment. It is unlikely that it will get ‘out of hand’. In the initial stages, it will merely be a feature of the formal redress of wrongs procedures that should be made available to all serving personnel, especially in cases where there is a complaint against a senior defence force official or senior person in the military environment. It is worth noting that the establishment of this office in a number of countries has resulted in some remarkable and very positive changes in the conduct and behaviour of military personnel while executing their duties and responsibilities.

The consolidation of democracy in South Africa and the integration process within the SANDF have taken significant strides forward. These processes are fuelled by the demands of the national democratic interests and the consequent pressures on the defence force within a democratic society. The democratic nature of the change is clearly stated in the principles of defence in a democracy as enshrined in the White Paper on Defence.⁹ It is also in the interests of democracy that defence management should maintain its principles within the military environment. The process of protecting the interests of the military should guard against any tendency to derail the achievement of the national democratic objectives, and must be undertaken without disrupting the military chain of command. It should also not prejudice the national democratic rights and liberties of the members of the SANDF.

Fundamental requirements, based on military professionalism, for the maintenance of healthy military relations, do exist. These requirements, which the defence force must recognise and apply, especially as their actions are subject to parliamentary scrutiny, are outlined in Chapter 3 of the White Paper on Defence and should be of benefit to the members of the national defence force, both collectively and as individuals.

Based on the normative principle that serving military personnel are expected to adopt a fair and reasonable approach towards the SANDF, irrespective of race, language, creed or political persuasion, and that actions of military personnel will be scrutinised, the necessity for a military ombudsman is clearly demonstrated. Recognition of the supremacy of Parliament, as embodied in the Constitution, highlights the need to ensure that there is no abuse of delegated power or the uncalled for imposition of such power over others.

By the same token, the professional execution of defence policies, directives and responsibilities in order to justify the military’s raison d’être as mandated by the Constitution, requires the honest administration of management systems and processes. Given the broad scope of defence matters, this implies that members of the defence force must be sensitive and responsive towards a variety of different needs, and a military ombudsman could assist in determining the efficiency and effectiveness of this administrative process.

The main function of the military ombudsman is to investigate the conduct of any person in the broader defence environment of the country. This is a common concept throughout the world and is based, to a large extent, on the Swedish model, which covers all functional aspects of government. This model demands that the ombudsman investigates any and every kind of complaint made against the civil service, and assigns the authority to the ombudsman to investigate all spheres of government including the foreign office, security services and public sector industries. Aspects such as local administration, the courts, prisons, military and health services all fall within the scope of the ombudsman’s responsibility.

Within the South African context, the introduction of a military ombudsman should follow the accepted Swedish model, in which case the principal duty would be to oversee and ensure the observance of constitutional rights and legal requirements within all sectors of the defence organisation, whether they originate from within the SANDF itself, the defence industries, or civil society.

Given this intent, the military ombudsman should be able to initiate investigations, since it is possible that the need to investigate a problem, for example, could arise from a report in the media. Such a report may indicate that something is going or has gone wrong administratively. It is predicted that, in a high proportion of such cases, the result will demonstrate that an investigation by the ombudsman was justified.

Apart from such initiatives, the military ombudsman should also be required to investigate complaints by serving members of the defence force or the public with regard to any perceived injustice caused either by maladministration, or by administrative action taken on behalf of the Department of Defence. The ombudsman would be duty bound to investigate any case where persons pursue unlawful ends within the scope of their jurisdiction, make arbitrary or unreasonable decisions, or otherwise commit mistakes or acts of negligence in the discharge of their duties.

In most cases, the reports of the ombudsman resulting from such investigations should be open and generally accessible to any interested party. It must also be accepted, however, that there will be cases where the contents of such reports could be prejudicial to government or public interest, such as cases where national security may be compromised, in which case access to some (for example, by not quoting directly from documents which relate to matters of national security), or all of the documentation pertaining to a case could be restricted. Nevertheless, the ombudsman may not unnecessarily or without due process apply restrictions on access to such documents.¹⁰

In order to fulfil this task competently, the military ombudsman must have the authority to have access to any military camp, division, unit and other work environment, to call for and have access to any and all documents pertinent to a case being investigated, and the surety that no documents may be withheld.

In the development of the new SANDF, a number of programmes have been introduced which are designed to:

empower members of the defence force;

manage equal opportunities;

implement affirmative action; and

ensure representivity.

Some areas, for example, the need to demonstrate the suitability of individuals for the rank and mustering in particular, remain problematic. Some members of the defence force are not yet satisfied with progress in any of the above areas and are by not satisfied with the current situation. Their concerns or grievances will have to be attended to in one way or the other, by someone designated to do so in the near future.

SANDF directives reflect the mechanisms currently available that military personnel are required to follow and comply with in the resolution of any grievance or complaint against the SANDF. An aspect that brings concerns to a head, is the contention that the current grievance procedures are ineffective. The fact is that existing problems with the use of these procedures may continue to prevail. There is the further possibility of blocked feedback to such an extent that the situation could be deteriorating in some units resulting in military personnel believing that the existing system on its own has no credibility. In the current system, the only recourse for aggrieved members who are not satisfied with the process, or where a matter remains unresolved, is to refer it to the Office of the President as the Commander in Chief of the Armed Forces, where the decision taken shall be final and with no further appeal being possible.¹¹

It is especially within this context that the institution of a military ombudsman becomes relevant and important, even essential, since it could provide an opportunity to resolve issues before it becomes necessary to refer such matters to the President, even though this final option remains available. The office of a military ombudsman would be an important democratic institution, relevant in addressing those grievances and issues which may otherwise be difficult, or even impossible for members of the defence force, defence industries, stakeholders and civil society to lodge in a controlled environment. To this extent, it is also important that the basic aim of the military ombudsman should be coherent and consistent with Chapter 9 of Public Protector Act No 108 of 1996.

The availability and structured accessibility of an ombudsman office would make it simpler and more effective for the defence force and stakeholders to participate together in the national defence function. They would be confident that their loyalty is towards a state and its democratic political system which will protect their rights and their earned privileges, thus enabling them to apply their efforts in a more positive and responsible manner. The military ombudsman, in terms of the Constitution and relevant existing legislation, would be accessible to everyone within the defence community at no cost to the complainant, and should have automatic access to documentation necessary for the conduct of any investigation. This will mean that s/he will be in a position to assist in dispelling existing or potential public distrust in the defence force and the defence community. Pivotal to this credibility will be the ability to conduct confidential investigations that are non-threatening and also to protect complainants from any form of retribution. In other words, this office will expand and improve means of addressing the needs and problems of uniformed members.

Legislation will be required to make it mandatory for the military ombudsman to take action when there is any indication that the personnel rights of any military member have been abused, or to allow the ombudsman to react whenever information to this effect is provided, whether it originates from members of the SANDF, the media, the public or the Department of Defence.

Elsewhere in the world, such an office has proved to be a reliable instrument, not only for military personnel themselves, but also for both members of the defence family (including the defence industries) and the general public, since situations often arise that demand the intervention of a neutral person whom can be trusted by both parties. Finally, it creates and maximises a positive environment for the growth of esprit de corps within the military environment, since all stakeholders will be aware and ensured that their grievances will be considered with the aim of successful resolution.

The appointment of a military ombudsman should serve to safeguard against any improper actions by the SANDF, the government or the public administration. At the same time, it will ensure that the rights and duties of military personnel, the defence industry and civil society comply with the norms of democratic values. In terms of the Constitution, it will assist Parliament in exercising its control through the Public Protector.

Given the proper authority, the military ombudsman will have the power both to propose adequate remedies and to secure proper compliance with his/her findings in the terms of recommended measures to remedy, mitigate or alter the adverse effects of any incorrect action. This authority should include the power to make binding decisions within the context of the role and functions of the office.

The military ombudsman will also be able to examine any perceived discrimination in the public service in terms of recruitment, privileges accorded to public officials, or the impact of maladministration outside the military environment which affects military personnel.

Any member of the SANDF, or of the broader defence family, must have the right to approach the military ombudsman directly without having to utilise normal official channels. In exercising their rights, members must be able to bring any matter which they feel reflects wrong or unfair treatment to the attention of the military ombudsman. In addressing themselves to the military ombudsman, they may refer to the whole spectrum of official, personal and social problems which they may have encountered in their day-to-day work. Members may not be subjected to any disciplinary or discriminatory action except where the ombudsman’s investigation shows that the complaint has been a deliberate attempt by the complainant to circumvent the law or to harm some other person or persons.

Having thus undertaken the resolution of grievances, the military ombudsman should submit regular reports via the office of the Public Protector, addressed to Parliament and the committees on Defence. The Minister of Defence should be required to comment on such reports.

Finally, the office of the military ombudsman should fulfil the need to educate complainants as an integral part of its function, and should hold that the responsibility of military personnel in a democracy is to participate freely and knowledgeably in all defence issues as an ideal. In its turn, the Department of Defence must support this initiative by responding speedily, effectively and economically to the requests and aspirations of military personnel as presented by the military ombudsman.