Developing mechanisms for Civilian Oversight over the Armed Forces

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By Jabu Kuzwayo Advocae, South African Defence Secretariat

Published in African Security Review Vol 7 No 5, 1998

The use of armed forces in internal situations, and the politics surrounding their deployment, should be understood against the background of the historical evolution of the armed forces in South Africa. The intention here is not to examine the history of the armed forces in depth, but rather to discuss the control mechanisms that are in place which would enable the civil powers to monitor and control the armed forces as they conduct internal operations. South Africa has both formal and informal mechanisms for such controls which will both be discussed. Preceding this, a short overview of the situation prior to 1994 will be provided.

The turning point in the political management of the armed forces in internal operations was after 1978 when P W Botha, then Minister of Defence, became South Africa’s president. His new role coincided with heightened military activity, which promised to increase as the Botha administration began to shape the functions of the military establishment into a formidable political and strategic organ of the country. The main document governing the armed forces was the Defence Act, No 44 of 1957.¹ Section 3(2)(a) of the Act, as amended, allowed the State President to authorise the use of the South African Defence Force (SADF):

"(a) in the prevention or suppression of terrorism;

(b) in the prevention or suppression of internal disorder;

(c) in the preservation of life, health or property; and

(d) in the maintenance of essential services, including the maintenance of law and order and the prevention of crime in co-operation with the South African Police."

The president was also given the right to authorise mobilisation either by proclamation in the Government Gazette or "in such other manner as he may deem expedient" (Section 90).

This right allowed the president to authorise the Chief of the SADF to deploy by a standing authorisation. This procedure made it unnecessary for the SADF to obtain a specific authorisation for each and every internal operation that had to be undertaken. Especially in the case of operations for the preservation of life, health or property and operations for the maintenance of essential services, such as water distribution and election assistance, this process was used.

However, the Defence Act also authorised the Chief of the SADF to deploy in the preservation of life, health and property without prior authorisation from the president where, owing to the urgency of the situation, seeking the State President’s authorisation would cause delay and pose a threat to people’s lives.

The power to employ the SADF for the prevention or suppression of terrorism and internal disorder could be exercised at any time without a declaration of a state of emergency and without the observance of formalities. Members of the force who were utilised in this way, had all the de facto powers and duties, and were entitled to the same immunities as were given to, or imposed upon the police. However, in 1992, section 3(2)(a) of the Defence Act was amended to extend the official functions of the SADF to include the maintenance of law and order and the prevention of crime in co-operation with the South African Police. These changes were implemented at the request of the minister responsible for police, then the Minister of Law and Order. In the same year, a general law amendment was passed, authorising the utilisation of the SADF, while employed for any prescribed function, to be used for normal police functions to further the activities of the police and fulfil necessary tasks.

Apart from the statutory authority given to the SADF by the Defence Act, a parallel development emerged soon after Botha took office, namely, a security ideology in which the SADF played a central role. The core of this ideology was the concept of South Africa as the target of a ‘total onslaught’ by communism which was threatening the government and South Africa’s legal order. This doctrine put forth that South Africa is the target of a total onslaught being waged at many different levels, including psychological, political, economic, diplomatic, social, religious, as well as military. The threat, according to the doctrine, was not only external, but internal as well. In response, a ‘total strategy’ was developed to counter the onslaught at all these levels and to produce a co-ordinated response. This response took the form of an elaborate network of security committees called the National Security Management System (NSMS), established in 1979, which was to support the extant State Security Council (SSC). The SSC was the only cabinet committee that was instituted statutorily, by the Security Intelligence and State Security Council Act No 64 of 1972, and was composed of the president as its chairman, and included an inner core of cabinet ministers and the chiefs of the military, police and intelligence services.²

In the SSC, major security-related decisions were conveyed by the president to the full cabinet for ratification. The locus of decision-making and power shifted increasingly from the party to this military-security establishment. The SSC and its network of committees could completely eclipse every ministry on security matters because of the comprehensive nature of national security at the time, so that a matter which could logically belong to the Cabinet Committee for Social Welfare, for example, could be discussed in the SSC.

The SSC was served by a permanent secretariat headed by a general from military intelligence, and as much as seventy per cent of the secretariat’s initial complement of personnel were from the defence force.

The NSMS had several levels, and this ‘super-cabinet’ was the brain or centre of a security network whose nerve ends reached into some 500 regional, district and local Joint Management Centres, mostly headed by military or police brigadiers. It was this security network which provided strategic direction on security matters and which was the body authorising the deployment of the SADF in areas which were identified as posing a threat to security.

In the course of these changes, the role of the SADF fundamentally altered. It was no longer simply an instrument for policy implementation, but had become an active participant in policy making, not merely in military matters, but in wider security issues, both domestic and external.

From the scenario depicted thus far, it is clear that the principle of the primacy of the civil authority over the armed forces had been violated continuously with impunity. The common assumption in most modern societies, which subscribe to a system of a multiparty parliament, is that the armed forces are subordinate to the civil powers of the day, that is, the military establishment must obey political authority. From this assumption evolves the democratic culture that the civil powers or political authorities are ordinary members of the society as represented in parliament and the executive branch of government who are regarded as civilians. Additionally, it is assumed that the armed forces, to serve effectively, should divest themselves of political influence in order to serve the people of the society in all their political, cultural, religious and economic diversity. The role of the armed forces, from this perspective, is to defend the people against aggressors or threats to the civil order and protect the rule of law. To carry out these functions, the armed forces should be essentially non-partisan in their orientation. Non-partisanship further implies that the armed forces should never be utilised by the ruling political authority to further its political ends, nor should the armed forces be seen to manifest these tendencies. The armed forces are only required to defend the constitutional order and the sovereignty of the state, which, put differently, means that they ought to defend the national interests of the state. At its most basic level, national interest includes defending the maintenance of territorial integrity and the political independence of the state, and the pursuit of such economic, political and strategic advantages as can be achieved by the state. Thus the national interest that should be defended by the armed forces should transcend party advantage and even political ideology, and is illustrated in the phenomenon of bi-partisanship between otherwise opposing parties and ideologues within the state.³

Neither the South African Constitution Act of 1983 nor its forerunner, the 1961 Constitution, were the enabling instruments for the armed forces, as the 1993 and 1996 constitutions were. In fact, the 1961 and the 1983 constitutions did not supersede other laws, and therefore did not serve as the touchstone for the determination of the validity or otherwise of other parliamentary laws. The armed forces, under the old dispensation, were established by the Defence Act No 44 of 1957, a parliamentary enactment, which to all intents and purposes was the ‘constitution’ of the SADF and its founding document.

For the first time in the history of the Republic, the current Constitution outlines the principles, structure, responsibilities and relationships which are necessary to secure democratic civil-military relations in entrenched provisions. For example, it outlines the hierarchy of authority between the executive branch, parliament and the armed forces, as well as the powers of the main state organs and the conduct of the South African National Defence Force (SANDF). The parameters of this conduct are set out in Section 2 of the Constitution which states that the "Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled." What is evident in reading the Constitution is the clear ascendancy of the authority of the civil powers over the armed forces. One of the main governing principles prescribed in the Constitution is that national security is subject to the authority of parliament and the national executive. The main features of the current Constitution, dealing first with the conduct of the defence force, are as follows:

- The President, as Commander-in-Chief, appoints the Military Command;

- The Command of the defence force is exercised in accordance with the directions of the Minister of Defence, under the authority of the President

- The Minister of Defence is accountable to Parliament for the exercise of his powers and the performance of his functions and must provide Parliament with full and regular reports concerning matters under his control."

With regard to internal operations, the functions of the SANDF are also strictly and clearly outlined. These first appeared in the 1993 Constitution. The relevant provisions continue to operate by virtue of paragraph 24(1), Schedule 6 of the current Constitution, which deals with transitional arrangements. The functions are:

"(a) for service in the preservation of life, health and property;

(b) for service in the provision or maintenance of essential services;

(c) for service in the upholding of law and order in the Republic in co-operation with the South African Police Service (SAPS); and

(d) for service in support of any department of state for the purpose of socio-economic upliftment."

The Constitution provides for the following functions of parliamentary authority and control, in addition to ensuring that the president and the minister fulfil their responsibilities towards the electorate as outlined above:

Despite the existence of a legal framework for civilian oversight of the military, including military intelligence, decision-making practice within the Department of Defence (DoD) has shown that the formal mechanisms of civilian oversight may be bypassed in critical areas either deliberately or by default. These bypasses do not in themselves threaten the new political system, but they illustrate the difficulties inherent in implementing reforms and have the capacity to seriously undermine civil-military relations. In recognition of this, South African civilian authorities have devised additional ways and means of managing the armed forces.

The White Paper on Defence was released in 1996 by the Minister of Defence. Taking its cue from the Constitution, it describes the management of the armed forces, and sets out the guidelines which will govern the employment of the SANDF, providing that:

Employment should be requested of the DoD by the relevant government department.


It should have the consent of the affected community.


It should have a limited time duration.


It should be subject to civilian control.

Currently, the only employment authorised to the SANDF is that for the maintenance of law and order in co-operation with the SAPS. An organisational framework was established by both the SAPS and the SANDF to manage these functions. It is this role which will be the focus of the remainder of the article, not only because it is the only employment where steps have been taken to establish informal mechanisms to monitor the SANDF (and SAPS) and thus give effect to civil-military relations as envisaged by our democracy, but the success of this mechanism may also serve as a basis on which other employments can be monitored by civil authorities.

The employment of the SANDF in service for the maintenance of law and order in conjunction with the SAPS was authorised by the president on 18 June 1996. This duty has the following important implications:

The SANDF has no duty other than to maintain law and order. This means that until other employments are given, the SANDF may not exercise any other competencies mentioned in the Constitution.



If the SAPS should refuse to act, the SANDF may not act on its own.



Where the SAPS is not capable of acting, the SANDF may act, provided that the SAPS officially requests it to do so and there is agreement on the actions that may be taken.



SAPS members are obliged to accompany the SANDF during these activities, since the duty of maintaining law and order is primarily that of the SAPS.

In contrast to other employments in service for maintaining law and order (which were all revoked), this employment is subject to a specific period or suspensive condition, as it runs concurrently with the development, implementation and execution of the National Crime Prevention Strategy (NCPS), introduced to the South African public by the Ministry of Safety and Security in 1996 in response to the high crime levels the country. Thus, once the NCPS expires, so does the employment of the SANDF in this role.

In order to implement the envisioned employment of the SANDF in a law and order function, a structure was established which operates at six levels.

At the national level, a National Operational Co-ordinating Committee (NOCOC) exists. This is the body or forum which issues policy directives. National operations are planned during sessions of this body. It answers to various cabinet ministers, notably, the Minister of Justice under whom the Deputy Minister of Intelligence falls, the Minister of Safety and Security and the Minister of Defence. Thus, the committee is able to monitor not only operations of crime prevention, but also whether intelligence gathering is conducted according to legal requirements.



At the provincial level, i.e. the command level, the Provincial Operational Co-ordinating Committee (POCOC) functions. This is where joint operations at provincial level are planned, informed by policy directives from NOCOC. Further agreements may be reached at this level between the provincial commissioner of police and the SANDF commanding officer of a regional command, and such agreements are binding on the SAPS and the SANDF.



On the regional level is the Area Operational Co-ordinating Committee (AOCOC) which functions in a similar fashion to POCOC.



Joint Operational Centres (JOC) are ad hoc and are established as soon as joint operations are instituted to maintain law and order and if the extent of the operations justifies their existence. These may be established on any of the above-mentioned levels, depending on whether the operation is on a national, provincial or regional level.



To support the above bodies and operations, Joint Intelligence Centres (JIC) exist on numerous levels, composed of intelligence members from both departments and the National Intelligence Agency (NIA), who provide relevant information.



There is also a Joint Monitoring Committee (JMC) comprising carefully selected persons representing various civic organisations to monitor crime prevention and suppression activity.

Guidelines in Maintaining Law and Order

To ensure proper co-operation between the SAPS and the SANDF during operations and to ensure that the activities remain within the principles of minimum force and transparency, the two services have agreed to certain rules, known as Rules of Employment for Members of the SANDF in Operations to Maintain Law and Order.⁵ These rules are guidelines which must be taken into account during all activities aimed at maintaining law and order. Both organisations, through the above-mentioned structures, have a duty to make the rules known to all members, down to the lowest level.

The issues addressed in the Rules are the following:

The SAPS station commanders (area commissioners) must be aware of all SANDF operations in their area. Thus, if an operation is authorised for a particular area, there is a duty to inform the station commanders.



When members of the SANDF are approached by any member of a properly accredited JMC for information which is reasonably available, the co-operation must be given.



Members of the SANDF are required to act in conjunction with the SAPS during all operations aimed at maintaining law and order. All cases of alleged misconduct by SANDF members must immediately be reported along the lines of SANDF command structures and all members involved must give their full co-operation in police investigations of alleged criminal conduct by SANDF members. It goes without saying that these should be done within the requirements of the law. For example, the right to remain silent and the right to legal representation ought to be respected.



Where reasonably possible, SANDF members must not operate without the presence of the SAPS. This is an important principle and should be adhered to at all times.



Houses or dwellings may not be searched without fully complying with the law and with due regard to the constitutional rights and, where possible, the co-operation of the person involved or his family.



Steps must be taken against any person (including a member of the SANDF) who is accused of misconduct, destruction of property or illegal activities.



Community, traditional and political leaders must be informed of the reasons for carrying out operations in their areas. Where possible, it must be organised through the JOCs.



SANDF commanders of members deployed to areas where traditional leaders have jurisdiction must organise a meeting with them upon arrival, in order to introduce themselves and to establish channels of communication.



All SANDF vehicles which are used in operations in the maintenance of law and order must be clearly identified as such and personnel must identify themselves upon request and wear name tags during operations.

The obligations and competencies of the SANDF are regulated by section 3(4) of the Defence Act No 44 of 1957 and Chapter 13 of the General Regulations, which are issued in terms of the Defence Act, and which together provide that a member has the same competencies and obligations as may apply in terms of the police legislation to police officials. This also implies that the SANDF member has the same liability and indemnity as the police official.

There are currently five agreements (policy directives) entered into between the SANDF and the SAPS which specify the obligations and competencies of each respectively. These documents are known as JSS1 to 5 and are binding on both forces. In terms of JSS1, for example, area protection in rural areas and border control are functions of the SANDF, with the rest being police functions which the SANDF may only assist in on request.

The competencies pertaining exclusively to the SANDF imply that there is no obligation to obtain a warrant or written authority for control over movements of people and goods, and the entering of premises to carry out search and seizures. The only stipulation, however, is that these activities are limited to the control of illegal movement of people or goods crossing the country’s borders. In all other cases, either a warrant from a magistrate is necessary, or the measures may be carried out during roadblocks manned by SAPS officials, or there must be a reasonable presumption with relation to a specific offence, together with a degree of urgency, before any action may be taken.

The fulfilment of Parliament’s responsibilities has required the building of a close and co-operative relationship between the Department of Defence and the multiparty committees of Parliament.

Parliament for its part, through the multiparty committees of defence and intelligence, has been very active and influential in enforcing accountability of the executive. It has accessed executive policy through hearings and written reports, and its involvement in defence and intelligence matters has gradually increased since 1994. The committees have increasingly affected the policy-making processes and not merely endorsed the outcome. In many cases, the executive has been forced to go back to the drawing-board if it failed to meet the expectations of these portfolio committees.

The requirement to produce written reports and to make personal briefings has been a transition for the military who have previously been unaccustomed to such probing scrutiny. To address these problems, it has been necessary to build a relationship of trust and understanding between the DoD and the multiparty committees. To this end, several teambuilding initiatives have been undertaken in an effort to achieve a partnership of joint management of the policy process. These have included visits by parliamentarians to defence installations and social gatherings which have encompassed senior members of both the Defence Secretariat and the SANDF.

From the discussion thus far, it would appear that, to maintain the primacy of civil control over the armed forces, more than the legal framework is needed. One can suggest that it requires the political will of the principal actors in the armed forces to ensure compliance with the constitutional prescripts, coinciding with a visible determination from the political authorities to involve themselves proactively in the affairs of the military. This means that all the players have a duty to ensure that the formal and informal control mechanisms that have been put in place, have been adhered to before any action is taken. This two-way process of responsibility must be transparent.

Like armed forces elsewhere in the world, the SANDF has capabilities to bring powerful force to bear on the nation and this is recognised by society. It is therefore important that this power should be utilised in a responsible manner for the benefit of the society, rather than in an uncontrolled and self-serving fashion. The experience of South Africa could serve as an inspiration to other societies, especially in Africa, that have succumbed to the strong-arm tactics of the military.

Edited version of a paper read at The Military Response to Conflict — a Franco/South African Dialogue, Paris, France, 25-26 May 1998.

For more information on this topic, see D Basson & H Viljoen, South African Constitutional Law, Juta, Pretoria, 1988.



See K Grundy, The Rise of the South African Security Establishment: An Essay on the Changing Locus of State Power, South African Institute of International Affairs, Johannesburg, August 1983.



For a complete discussion of this issue, see S Baynham, Civil-Military Relations in Post-Independent Africa, Africa Institute of South Africa, Pretoria, 1992.



Department of Defence, White Paper on Defence: Defence in a Democracy, Department of Defence, Pretoria, May 1996.



South African Police Service and South African National Defence Force, Rules of Employment for Members of the South African National Defence Force Employed in Operations to Maintain Law and Order, South African government, Pretoria, 1996.