INTRODUCTION

Legislative control of a future SA National Defence Force (SANDF) can be divided into two main parts. That in:

The post-election Constitution; and that in



Other existing legislation (the Constitution stipulates that all other laws will remain in force, subject to their repeal by Parliament [section 229]).

The control measures falling into each of these two categories are summarised below and are followed by a number of recommendations.

For ease of reference the various recommendations within this article have been surrounded by borders.

In the first section an extract from the post-election Constitution of the Republic of South Africa, Act No 200 of 1993 as amended, relevant to civilian control of the military and related aspects is presented. The relevant section numbers from the Constitution are quoted in square brackets. These extracts are grouped under those related to the legislative, judicial and executive branches of government.

The recommendations regarding other legislation which follows in the second part of this article necessarily occur within the framework which is set by the Constitution.

The Constitution is the supreme law of the Republic, binding on all legislative, executive and judicial organs of government [4; 7].

LEGISLATIVE BRANCH

Parliament

Declares a state of national defence [82(4)];



Annually approves a budget for defence [228(2)];



Provides, by Act, for the establishment, organisation, training, conditions of service, etc. of the permanent force [226(2)];



Provides by Act for the establishment, organisation, training, state of preparedness, calling-up, obligations and conditions of service of the part-time reserve component [226(3)];



Establishes a joint standing committee competent to investigate and make recommendations regarding the budget, functioning, organisation, armaments, policy, morale and state of preparedness of the National Defence Force (NDF) and any other parliamentary supervision prescribed by law [228(d); 58];



May terminate employment of the NDF by the President for functions in 227(1)(a), (b) or (e) [228(4)]; and



Regulates, by an Act, the procurement of goods and services for defence through the appointment of independent and impartial tender boards. Tendering shall be fair, public and competitive. Tender boards shall on request give reasons for decisions to interested parties. [187]

JUDICIAL BRANCH

Constitutional Court

Interprets the Constitution. [98]

Supreme and other Courts

Interprets other laws. [101;103]

Attorney General

Institutes criminal proceedings on behalf of the State. [108]

EXECUTIVE BRANCH

President

Is the Commander-in-Chief of the NDF [82(4)];

Confers and cancels permanent commissions [82(4)];

Negotiates and signs international agreements [82(2)];

Appoints the Chief of the NDF (CNDF) [225];

Declares state of national defence with parliamentary approval [82(4)]

Directs the CNDF during a state of national defence [225];

May employ the NDF for service subject to post facto parliamentary approval [228(4)]; and

Must inform Parliament of the reasons for the employment of the NDF forthwith. [228(4)]

Minister of Defence

Is accountable to Parliament [also 228(1)], cabinet and the President. The Minister must act within cabinet policy [92];



Directs the CNDF except during a state of national defence. [225]

Deputy Minister of Defence

If appointed, his/her powers and functions are determined by the President. [94]

Chief of the NDF

Exercises military executive command of the NDF subject to directions of the Minister or the President (during state of national defence) [225];



The head of the department or organisational component shall be responsible for the efficient management and administration thereof. [212(2)]

National Defence Force

The NDF is the only defence force for RSA. [224(1)&(3)]



The NDF may be employed for [227(1)]:



defence of RSA;



service in accordance with international obligations;



preservation of life, health or property;



provision or maintenance of essential services;



upholding of law and order in co-operation with the Police when the Police are unable to do so on their own; and



service in support of any department of state for socio-economic upliftment.



No member of the permanent force may hold office in a political party or organisation. [226(6)]



Must refrain from furthering or prejudicing party-political interests. [227(2)]



Members are entitled to refuse to execute an order which would constitute an offence. [226(7)]



Members are entitled to refuse to execute an order in breach of international law on armed conflict binding on RSA. [226(8)]



May not breach international customary law binding on RSA relating to aggression [227(2)]



The NDF must comply with its obligations under international customary law and treaties binding on the RSA during armed conflict. [227(2)]

Public Protector

Investigates maladministration, the abuse of power, use of state funds, etc. and reports to Parliament [112]

Human Rights Commission

Promotes the protection of human rights and reports to the legislature. [116]

Commission on Gender Equality

Promotes gender equality. [119]

Auditor-General

Audits and reports on all accounts and financial statements, conducts performance audits on request. [193]

Public Service Commission

Investigates and makes recommendations in terms of organisation, administration, conditions of service, personnel practices, efficiency, etc. of public service and public servants. [210] The Commission is accountable to Parliament. [209]



The public service includes the permanent force of the National Defence Force. [212(8)]

Evaluation

It is clear that in the new democratic constitutional state, parliamentary sovereignty is replaced by constitutional sovereignty. The authority for the existence of the defence and armed forces for the Republic should, therefore, emanate from the Constitution, as it does. [224(1)(3)]

In summary, our future Constitution provides for civilian control or oversight of the NDF by the following means:

The supremacy of the constitution, fundamental rights and the power of the judiciary;



Providing for certain acts of Parliament (annual budget, provision for a permanent force and a part-time force);



Providing for a Minister of Defence who is accountable to Parliament;



The establishment of a parliamentary Joint Standing Committee on Defence with extensive powers;



The designation of the President as commander-in-chief;



Making the Chief of the NDF subject to the direction of the Minister of Defence except during a state of national defence when he/she is subject to the direction of the President.

Generally the provisions contained in the constitution are impressive and provide for clear and unambiguous civilian control of the military in many respects. The fact that these measures are entrenched in the constitution and, therefore, not subject to easy repeal or amendment, is further cause for confidence in the transitional period which lies ahead. However, there are a number of additional measures which are required, some of which are discussed below.

DEFENCE LEGISLATURE

Recommendation A The further powers, workings and regulations governing the joint standing committee of Parliament on defence should be contained in a separate parliamentary law and not left to parliamentary rules, custom or procedure. Some of the additional measures which could be included in such a law (apart from that contained in section 228 of the Constitution) should provide for the following powers of the joint standing committee: The power to examine issues on its own initiative. The power to convene itself as a Committee of Inquiry if one quarter of its members so demand. Provision for all defence-related legislation first to be tabled and discussed in committee before referral to Parliament. Provision that the committee should approve the funding for all major procurement and arms programmes. The authority to refer matters to the Military Ombudsman or any parliamentary fiscal committee. Powers of oversight of the defence budget, including the Special Defence Account. In addition, the Ministry of Defence should have no statutory authority in respect of the composition of the committee. As a general rule, the committee should meet behind closed doors. Provision should be made for a small secretariat made up of an administrative support contingent and small contingent for expert liaison. This group may be administered by the Ministry of Defence.

The present Defence Act, No 44 of 1957, does not provide explicitly for civilian control of the Defence Force, except insofar as Chapter lX provides, in a very cursory manner, for the administration of the Force. Broadly, in terms of sections 73 through 81, 85 and 87 of the Act, the Minister of Defence is vested with a wide array of powers from that to establish a Council of Defence (with powers of recommendation only) to the power of acquisition of movable and immovable properties including arms, ammunition, vehicles, aircraft, vessels, clothing, animals, stores and any equipment for defence purposes. He also wields the general power to do or cause to be done all things which, in the opinion of the Minister, are necessary for the efficient defence and protection of the country or any part of it by making regulation on a wide variety of issues. At present the Act then, does not provide for a distinction between those functions that should be fulfilled by uniformed, military institutions or persons and those that could be carried out by civilian institutions or persons. Such a distinction, if any is to be made, is therefore left to the Minister.

Recommendation B The present Defence Act, No 44 of 1957, would require revision in its entirety, in particular to provide for: Powers, duties and procedures for the use of the military in the provision or maintenance of essential services; support in the upholding of law and order in support of the Police; service to protect life, health or property; or for service in support of any department of state for the purpose of socio-economic assistance. The changed composition of the NDF changed reserve system (cadets, etc.); Modern, legal labour practices within an all-volunteer force; Military powers during a state of national defence; The updating of the military legal system, including the Military Disciplinary Code (MDC), to bring it in line with the Constitution and changed judicial system for South Africa. Powers, delegated by the State President to the Minister of Defence, to promote and appoint officers, from a list approved by the Service, up to the equivalent rank of lieutenant-colonel in the army. Powers, delegated by the State President to the standing parliamentary committee to promote and appoint officers, from a list approved by the Service, of rank higher than the equivalent of lieutenant-colonel, up to and including the equivalent rank of brigadier in the army. Powers, delegated by the State President to the supreme court, to promote and appoint officers, from a list approved by the Service, of ranks higher than the equivalent rank of brigadier up to and including the equivalent rank of lieutenant-general in the army. The supreme court should also approve the appointment to the post of State Secretary for Defence (SSD) from a list provided by the standing committee on defence (see the article on the restructuring of the Department of Defence elsewhere in this Journal).

The proper role and task of a military intelligence organisation is to deal with the military posture of foreign countries and with military security. It is, therefore, the task of military intelligence to collect, evaluate, store, present and disseminate information and intelligence, to assess and evaluate the (potential) external enemy situation and to prevent the (potential) enemy from doing the same.

The principle of legality, which is a binding one for all military actions and operations, also applies to the task and execution of military intelligence functions. Ultimately the task and function of military intelligence should be defined within a new defence act. In the interim a concerted programme should be launched with the aim of complete public accountability of all military intelligence expenditure as soon as is practically possible.

Recommendation C Military intelligence (as opposed to military counter-intelligence) activities internal to the country should be prohibited by law, apart from those relating to the collection of information on external threats to the sovereignty of the country. Should Parliament authorise the internal deployment of the NDF, these forces should be provided with the full support and co-operation of the existing intelligence agencies operating inside the country. This restriction should, in our opinion, be contained in a revised Defence Act(s). Such a restriction could, of course, be amended should circumstances (such as prolonged internal deployment) in the view of the legislature, call for a change.

A recent CSADF Internal Communication Bulletin (no. 20, dated 14 March 1994), announced that: 'It has been proposed that an Ombudsman be appointed to arbitrate, inter alia, on non-routine matters involving an individual and a department, allegations of racialism and the interpretation of standards. He/she would be appointed by and answerable to Parliament and the person selected should be non-partisan, have a good working knowledge of the military, be an acceptable public figure and preferably have legal qualifications. The post would be in addition to a complaints office and should not compromise proper military channels.'

The emphasis on an arbitration function together with the institution of the post of Ombudsman in what is essentially an all-volunteer military is an interesting development. Most countries who have Military Ombudsmen use the post as a tool to guard against the infringement of the fundamental rights of conscripts (i.e., persons who, generally speaking, have been compelled to perform military service).

Still, the role of an Ombudsman could contribute substantially to effecting civilian control over the military. This post could serve to enhance mutual trust and build confidence between the legislature and the executive as well as between the public and the armed forces that protect them. Within the NDF this office could assist in preventing abuse or misuse of the strict command and disciplinary powers of military authority and ensure that the military doctrine of the armed forces is executed in accordance with the appropriate leadership principles, training and education.

Though the institution of an Ombudsman is first and foremost a parliamentary control measure, his/her services should essentially be in support of the armed forces. He/she should act in the broader interests of the military, assisting them in upholding a high standard of morale and leadership as well as enhancing their combat-readiness and ensuring their loyalty to the democratic state.

Recommendation D Following our research into the establishment of a Military Ombudsman we recommend the following: As an independent parliamentary office, the post of Ombudsman should be dealt with as a separate parliamentary budget item (i.e., it should not form part of the budget of the Department of Defence or any other government department). The election of the Ombudsman should be by a two-thirds majority vote of Parliament and on the unanimous recommendation of the joint standing parliamentary committee on defence. Strict criteria should be formulated and legislated for the appointment to this office. The powers of the Ombudsman should be limited to those of investigation, report and recommendation relating to matters of administration where this relates to the service of a member of the NDF or that arises in consequence of a person serving or having served in the NDF. The Ombudsman should not investigate actions taken which are the result of the general judicial or military judicial system, nor to a matter relating to the granting or refusal of an honour or award to a member of the NDF. All the reports produced, recommendations and suggestions made by the Ombudsman should be made public. The Ombudsman should compile and table an annual report to Parliament for debate which would serve as an independent assessment of the state of discipline and morale of the armed forces. As such his/her suggestions and recommendations may have a direct impact on the training, education and leadership of the military. This report may also provide an early warning of discontent and possible revolt. It should be possible for Parliament or the parliamentary standing committee on defence to request that the Ombudsman assist, as an institution of Parliament, in certain control functions or investigate cases within his/her mandate. In accordance with his/her legal mandate, the Military Ombudsman should be able to react whenever circumstances indicate an infringement of the soldier's basic rights or of the provisions which guard a defence force serving a democratic constitution. This includes reaction upon: information provided by the media; information provided by a member of the armed forces (anonymously supplied information should not be acceptable) information gained during his/her own inspections; and a request from the Chief of the NDF or an officer designated for such a purpose, the Ministry of Defence or the standing joint committee of Parliament on defence. In order to execute his task effectively the Military Ombudsman should have the right to visit any unit or installation of the armed forces, without prior notice. He should be able to communicate freely with any member of the forces and have the right to request any information, record or file which may be of assistance in his investigations.

OTHER RELATED LEGISLATION

The Security, Intelligence and State Security Council Act, No 64 of 1972, provides for, inter alia, the establishment of a State Security Council (SSC) of which the Prime Minister (now State President) is the chairman and the Minister of Defence and CSADF/CNDF are both members. In terms of Section 5, the functions of the SSC are to advise the Government, at the request of the Prime Minister, with regard to the security of the country, and the manner in which such policy or strategy should be implemented and executed. Further, the SSC advises on policy to combat any particular threat to the security of the country and assists in determining intelligence priorities.

The Protection of Information Act, No 84 of 1982, provides for the protection from disclosure of official secrets and certain other information. It also declares as prohibited places of any 'work of defence' such as arsenals, military establishments or factories as well as telegraph, telephone, radio and signal stations. Other prohibited places are those where armaments or any model or documents relating to them are to be found. The Act makes it a criminal offence for any person to approach such places for any purpose prejudicial to the security or interests of the Republic. The Act prohibits a range of activities such as obtaining and disclosing certain information and gaining admission to any prohibited place. It is a criminal offence to obstruct or interfere with any person on guard at prohibited places, to harbour or conceal certain persons and failing to report information relating to agents. By virtue of Section 11 the provisions of the Act have extra-territorial application.

Recommendation E The Security, Intelligence and State Security Council Act, no 64 of 1972, and the Protection of Information Act, No 84 of 1982, should be revised in the light of the provisions regarding Fundamental Rights, establishment of a Public Protector, Human Rights Commission and other aspects of the new Constitution. There should, however, remain an equivalent to the Official Secrets Act and certain military installations should still be prohibited areas.

The Security Services Special Account Act, No 81 of 1969, provides for the establishment of a Security Services Special Account and for the control and utilisation of moneys therein. These moneys are used to defray the expenses in connection with the performance of the function and duty of the National Intelligence Service. Section 4, as substituted by Section 11 of the Finance Act, No 101 of 1979, allows for the account to be audited by the Auditor-General.

The Secret Services Act, No 56 of 1978, provides, inter alia, for the establishment of a Secret Services Account to which Parliament appropriates monies. The Minister of State Expenditure may, at the request of the responsible minister, transfer monies to the Security Services Special Account. Section 3A establishes a Secret Service Evaluation Committee, appointed by the State President, whose function it is to evaluate all intended secret services in order to determine whether the object thereof and the modus operandi to achieve it are in the national interest. The Committee must also review all secret services annually with the view to determine whether they may be continued and to make such recommendations that an intended secret service may be carried out or continued, if the Committee unanimously so decides. Section 3B provides that no intended secret service will be carried out unless the responsible minister has granted his prior approval and indicated to which conditions or instructions, if any, such action will be subject to.

Recommendation F The institution of a joint standing parliamentary intelligence oversight committee should be considered to oversee all intelligence agencies and their activities. This committee should supervise the Security Services Special Account established in terms of Section 1 of the Security Special Account Act, No 81 of 1969 and the Secret Services Account established in terms of Section 1 of the Secret Services Act, No 56 of 1978. We understand that this recommendation is already under consideration with the sub-council on intelligence.

The National Key Points Act, No. 102 of 1980, provides for the Minister of Defence to declare any premises, building, installation or industrial complex or any soil or water surface, whether with a building, installation or structure on it or not, as a National Key Point or National Key Point complex. The Minister's decision in this regard is guided by his view of whether the loss, damage, disruption or immobilisation of the facility may prejudice the Republic or whenever he considers it necessary or expedient for the safety of the Republic or in the public interest. This Act vests the Minister with wide powers from that enabling him to take over the duties of an owner of a National Key Point to regulating various aspects in general - anything, in fact, which in his opinion is necessary to prescribe to achieve the objective of the statute, including ordering the owner of the complex to improve security at the owner's cost. It should be noted that a 'declaration' by the Minister takes the form of a letter to the owner. The owner is prohibited, by law, from disclosing this fact. There is, furthermore, no burden on the Minister to report to Parliament on any exercise of this function at all. The Act also provides for the establishment of a Special Account for the safeguarding of National Key Points, for the appointment of persons to advise the Minister of Defence and to assist him in the exercise of his powers under the Act, and so on.

Recommendation G A commission of inquiry made up of representatives of the security and intelligence communities, industry and other interest groups should be established to determine the requirement for a new South African National Key Points policy and decide which department should administer such a policy.

The Defence Special Account Act, No 6 of 1974, as amended, provides for the establishment of a special defence account. It relates to the accounting for and utilisation of monies for payments for, inter alia, special defence activities and purchases by the South African Defence Force as well as payment for special defence activities and purchases by ARMSCOR. Section 6(3)(a) of the Auditor-General Act, No 52 of 1989, provides that the Auditor-General will report, inter alia, on an account established by the Defence Special Act, No 6 of 1974. The Secret Services Account Amendment Act, No 142 of 1992, already disallows the transfer of monies from the Secret Services Account to the Defence Special Account, among other accounts.

Recommendation H The Defence Special Account Act, No 6 of 1974, provides the DoD with an important 'roll-over' facility from one financial year to the next, but should be revised to remove the possibility of misuse of the account to fund illegal activities and to place the fund under the full scrutiny of the joint standing committee on defence and normal auditing practices by the Auditor General insofar as these practices are not incompatible with the requirements of national security. The Account should not contain monies used for any purpose other than the purchase of military equipment.

The Armaments Development and Production Act, No 57 of 1968, as amended provides for the establishment of a corporation with the object of meeting, as effectively and economically as is feasible, the armaments requirements of the Republic, as determined by the Minister, including armaments required for export. It empowers the Minister of Defence to prohibit or control the export, marketing, import, conveyance through the Republic, development and manufacture of armaments.

Recommendation I Further investigation of the future of ARMSCOR, if any is to be undertaken, should be independent of the organisation but involve it and all other stakeholders such as DENEL, private defence industry, the NDF, etc. Ideally any decision in this regard should await the finalisation of the establishment of the SSD. The Security Forces Board of Inquiry Act, No 95 of 1993, provides for the establishment of a board to inquire into any allegation that an offence has been committed by a member of the SADF, among other organisations. To our knowledge, this Board and its regional components have not been established or used.

Recommendation J The continued requirement for the Security Forces Board of Inquiry Act, No 95 of 1993, should be reconciled with the provision for a Military Ombudsman, the provisions contained in the new Constitution and future adjustments to the military legal system.

ENDNOTE

The latter part of this article draws heavily from legal opinion obtained from Watters and Partners, Johannesburg.