Military Ombudsman Bill [B9-2011]; Implementation of the Geneva Conventions Bill [B10-2011]: briefing by Minister of Defence

Meeting report

Military Ombudsman Bill [B9-2011]: briefing by Minister of Defence and Military Veterans
The Minister of Defence and Military Veterans, Ms Lindiwe Sisulu provided an introduction and background to the Military Ombudsman Bill, saying the Bill was unique in the history of the South African democracy because it was a Bill initiated by the Portfolio Committee. The process of introducing Bills meant that it had to be approved by Cabinet.

In 1993, after the CODESA discussions had been completed, a model was put together which the defence and security service had to comply with. A defence subcommittee, which reported to the transitional executive committee, was put together. This subcommittee had to come up with suggestions. The committee suggested that the country had to have a defence force that understood that it fell under political control. The subcommittee also suggested that the defence force had to allow for some form of democratic expression. There had to be grievance procedures. It proposed in 1993 the institution of the Military Ombudsperson. It was envisioned at the time that part of its function would be to allow Parliament to oversee and safeguard the rights of the Military.

When the new government came into power, one of the first things it did was to put all the ideas and suggestions together in a White Paper, published in 1996. Most of the elements that it contained were agreed to, including the idea of a Military Ombud to monitor adherence to democratic civil military relations, to undertake investigations at the request of Parliament and to investigate complaints against the South African National Defence Force (SANDF) by military personnel and members of the public.

The White Paper was presented to Parliament for approval. Chapter 10 of the 1998 Defence Review contained the detail of what the Ombud had to be and do. The White Paper believed that the Military Ombud had to investigate complaints against the SANDF by personnel.

By the time Parliament was ready to establish the Military Ombud, the Public Protector had already been established. The Joint Committee on Defence got in touch with Selby Baqwa who was the Public Protector at the time (1995-2002) and informed him of its intention to establish a Military Ombud. He was supportive of the idea, but saw some overlaps in the functions that could cause conflicts at a later stage. At that time, the Office of the Public Protector had been established. The Public Protector’s rights were enshrined in the Constitution. The Constitution could not be changed. In the discussions with him it was agreed that the responsibilities of the Military Ombudsperson had to migrate to the Office of the Public Protector. This arrangement did not work well - neither for the Military, nor for Parliament.

Later when Adv Laurence Mushwana was Public Protector (2002-2009), the Military Ombud was still in the Office of the Public Protector at his insistence. His concern was that there would be a duplication of responsibilities. This was an ongoing discussion amongst the different parties on what the best arrangement would be, to accommodate the Military Ombud.

In 2006, the Committee, under the Chairpersonship of Kader Asmal, with permission from Parliament, drafted the Bill. It was drafted by a lawyer from the UCT School of Law. It was handed to the Minister to introduce to Parliament.

In 2009, Minister Sisulu received a letter from the new Public Protector, who asked that the responsibility of Military Ombudsperson be removed from her Office and be handed to the Defence Ministry. The Ministry revived the Bill and submitted it to Cabinet in 2010. It now had the compliance of Cabinet. It went to the state law advisers who made some changes. The Bill was handed to the Public Protector who made some recommendation regarding the Bill. The Public Protector wanted to change the Bill from Ombudsman to Ombud Bill for the sake of gender sensitivity. Both were used. She asked the Committee to prioritise it. It was an urgent Bill. It was to make sure that there was a mechanism to address grievances in the Military. Having given introduction, she would answer questions on it.

Clause by clause explanation of Military Ombudsman Bill [B9-2011]
Major General Mmono, Acting Chief: Defence Legal Services went through the detail of the Bill and the information contained in each section. The Bill established the Office of the Ombudsperson and set requirements for appointment to the Office. The Bill further provided for the functions and the powers of the Ombudsman and his or her Deputy.

▪ Clause 1 explained the terms used.
▪ Clause 2 established the Office of the Military Ombudsman and prescribed that the Ombudsman, in consultation with the Minister decided where the seat of the Ombudsman would be.
▪ Clause 3 stated the objective of the Office of the Ombudsman: To investigate and ensure that complaints were resolved in a fair, economical and expeditious manner.
▪ Clause 4 dealt with complaints, the manner in which these had to be lodged with the Office of the Ombudsperson and the obligatory response of the Ombudsperson.
▪ Clause 5 described the competencies the Ombudsperson and the Deputy Ombudsperson had to have respectively. It prescribed that the President had to appoint them as well as the length of the term of Office. It prescribed that the President and the Minister of Finance had to determine the salary of the Ombud and Deputy Ombud and the rules to be applied in its determination. It prescribed the conditions and method for resignation and made provision for the President to remove appointees from either position if the circumstances required it.
▪ Clause 6 described the powers and functions of the Ombud and Deputy Ombud. It described the procedures to be followed in the investigation of a complaint. It also stated that the Deputy Ombud may perform the functions of the Ombud if the Ombud was unable to do so him/herself
▪ Clauses 7 dealt with the limits of the jurisdiction of the Ombud. Certain cases were off-limits for an Ombud. The section also dealt with circumstances under which an Ombud could refuse to investigate a case.
▪ Clause 8 dealt with independence and impartiality. It stated that “No person may interfere with the functioning of the Ombud”
▪ Clause 9 dealt with the staff which need to be appointed. The Ombud would, after consultations with the Minister appoint staff to assist him/her with the execution of his/her functions. It also stated that all staff, including the Ombud, had to be “issued with the appropriate or provisional grade of security clearance by the Intelligence Division of the Defence Force contemplated in Clause 33 of the Defence Act”.
▪ Clause 10 prescribed that Parliament made monies available for the Office to function and that the money had to be spent in line with the Public Finance Management Act (PFMA).
▪ Clause 11 dealt with the requirements of accounting and reporting to the Minister as well as the Public Protector on the activities of the Office.
▪ Clause 12 dealt with disestablishment, judicial management and liquidation of the Office of the Ombud. It could only happen through an Act of Parliament.
▪ Clause 13 dealt with review of a decision of the Ombud. It prescribed that the High Court had to be approached for a review of a decision.
▪ Clause 14 dealt with offences against the Ombud and penalties that could be incurred. This would apply when staff breached confidentiality as well.
▪ Clause 15 dealt with regulations that the Minister may make, after consultation with the Ombud.
▪Clause 16 dealt with the name of the Bill which was at this stage the Military Ombudsman Bill.

Institutions of this nature were not new in the Public Service. The Independent Complaints Directorate for the South African Police Service existed to investigate complaints by the public about the conduct of police and deaths in custody.

Internationally, Canada had an institution of a similar nature. The Ombudsman Office in Canada was tasked with the responsibility to review and investigate concerns and complaints from current and former Canadian Forces members, departmental employees and their immediate family members who believe that they had been treated improperly or unfairly by the Department of National Defence or Canadian Forces.
The Minister indicated that a complaint (Clause 1) might also mean a request for an investigation on foreign soil from Parliament. This was not indicated in the Bill. It would also give soldiers the security that this was possible.

The Minister referred to Clause 5(2) that dealt with the matter of appointment of the Deputy Ombudsperson. The Bill stated that: “The President must, in consultation with the Ombudsman, appoint a Deputy Ombudsman.” She was not sure how Parliament fitted into this picture, or whether it was a decision for the President and the Ombud alone. Going back into the history, it was recorded that the ANC had insisted that the Deputy Ombudsman had to be appointed by Parliament. The DA was against the appointment of the Deputy Ombudsman by Parliament. Mr James Selfe articulated this position on behalf of the DA.
She said that she and the Public Protector were not sure whether the Ombud had to have a say in the appointment of the Deputy Ombud. They felt that the Bill had to state that the President appointed both the Ombud and the Deputy Ombud, or it had to give space to Parliament to have a say in the appointment of the Deputy.

She referred to Clause 8(3), dealing with the independence and impartiality of the Ombud where the Bill stated that “No person may interfere with the functioning of the Ombud”. She was not sure what it meant. She asked the Chairperson that the Committee considered what this meant to them.

Clause 8(4) stated that: “Members and employees of the Department must cooperate with the Ombud and Deputy Ombud” If members and employees of the Department had to cooperate with the Ombud and Deputy Ombud, it made these positions part of the administration of Defence, which would be problematic. If the Bill stated that members had to interact with the Ombud directly, it went against the ruling that the heads of the services had to interact with the ombudsperson.

She wanted to make the Committee aware of these points that concerned her and wanted the Committee to reflect on them.

The Chairperson said that she did not need to be concerned. The Bill would be processed and come back to her.

Mr Maynier welcomed the Bill. It would make a big difference. He promised to work hard on the Bill. It might help the Committee in its deliberations if the researcher could find a copy of the original Bill, the Public Protector recommendations, a copy of the founding legislation of the Ombudsman Office in Canada. He also requested the amendments to the Independent Complaints Directorate (ICD). Amendments were made because there were deficiencies in the ICD. He wanted to see what those deficiencies were and which remedies were implemented.

The Minister promised to provide the documentation asked for. She wanted to assure the Committee that the same state law advisors who tightened up the ICD legislation, would work on this Bill and they were mindful of uniformity.
 
Implementation of Geneva Conventions Bill [B10-2011]
Mr Siviwe Njikela, Director: Legal Advice, Department of Defence and Military Veterans, explained that in 1952 South Africa became a State Party to the Geneva Conventions (GCs). In 1995 SA became a State Party to the two Additional Protocols (APS). The GCs and their APs were part of International Humanitarian Law (IHL), which was a set of rules that sought to limit the effects of war on combatants and non-combatants and regulated the use of weapons during an armed conflict. The GCS required that all State Parties enacted domestic legislation in line with what the GCs prescribed.

The Bill was drafted in response to the Republic’s obligation under the GCs. The Bill was approved by Cabinet for introduction in Parliament, certified by the Office of the Chief State Law Advisor (OCSLA) and introduced during June 2011. The presentation stated the Conventions One to Four as well as Additional Protocols One and Two (AP1, AP2) dealt with lessening the effects of war on different categories of people:
▪ Convention One dealt with the wounded and sick in armed forces in the field.
▪ Convention Two dealt with the wounded and sick and shipwrecked members of armed forces.
▪ Convention Three dealt with the treatment of Prisoners of War.
▪ Convention Four dealt with the protection of Civilian Persons in time of war.
▪ Additional Protocol One was for the Protection of Victims of International Armed Conflicts.
▪ Additional Protocol Two was for the Protection of Victims of Non-International Armed Conflicts.

The Bill would make the Geneva Conventions law in South Africa. This meant that the SANDF had to comply with the prescripts of the GCs. The conventions made provision for two types of breaches, namely, grave breaches and other breaches.

Grave breaches included torturing, wilful killing and inhumane treatment, biological experiments, wilfully causing great suffering, destroying or confiscating property, forcing people to fight in the army of the hostile power and attacking civilians. For more detail see the document. The Bill criminalized all breaches of the Conventions and their Additional Protocols and provided for penalties depending on the nature of the breach. It was also an offence to fail to act while under duty to do so, in order to prevent a grave breach to occur, irrespective of where in the world it occurred. Extra-Territorial Jurisdiction in terms of the GCs extended the jurisdiction of the South African Courts beyond the borders of the country. This meant that if South Africa became aware that the GC had been breached anywhere in the world, it could start a legal process. It could hear cases committed anywhere by anybody.

In terms of this law people could apply to the court in order to be declared prisoners of war or protected internees (civilians that took up arms). Prosecuting authorities could also apply to the court for a detainee to not be given the status of prisoner of war or protected internee. A soldier could not be prosecuted for taking part in a war, but he could be prosecuted for violations of the GCs. A civilian could be prosecuted for taking part in a war.

The Bill guaranteed the right to legal representation by a legal practitioner whether the prisoner had the means to pay for it or not. The Bill provided for the protection of the Red Cross, Red Crescent and other emblems subject to the provisions of SA Red Cross Society Act. Emblems could only be displayed with the consent of the Minister. The Bill made provision for the use of the Red Cross emblem by the SANDF to mark its medical personnel, medical units and transports on the ground as well as religious personnel. The International Federation of the Red Cross and Red Crescent Societies may make use of the Red Cross and Red Crescent.

This Bill had no diminishing influence on any provision of the implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No 27 of 2002). This Bill was another instalment of the RSA’s continuing endeavours to ensure that the effects of armed conflicts were minimised internationally.

Discussion
In reply to a Member asked what ‘amelioration’ meant, Mr Njikela explained it meant lessening the effects of war on prisoners of war or the sick and wounded in an armed conflict.

Mr A Mlangeni (ANC) referred to the presentation under the heading Legal Representation where it said that Clause 9(5) of the GCs stated that an indigent accused person “may” qualify for legal representation at state expenses. He asked under which circumstances an indigent accused would not qualify.

Mr Njikela replied that when it came to indigent persons, there was a separate piece of legislation that determined whether people qualified for legal aid or not. Certain criteria were applicable under the Legal Aid Act. There was a means test. The person might have thought that he qualified, but the means test might find that the person did not qualify. Any person, who could not afford his own representation, had the right to apply for legal aid. The use of the word “may” did not exclude anybody from applying for legal aid.

Mr J Maake (ANC) asked whether, when one country did not recognise another country as independent, and an armed conflict broke out between the two and soldiers were captured, the Geneva Convention also applied. Would they be seen as internees or prisoners of war?

Mr Njikela replied that the Geneva Conventions applied to all situations where there was an armed conflict. Protocol 1 applied to situations where it was an international conflict and Protocol 2 applied to situations where there was internal conflict or civil war in a country.

Mr Maake asked whether the captives would be prisoners of war or not.

Mr Njikela replied that in such a case, the captives would be prisoners of war. International law dealt with wars in two ways. It recognised that countries had the right to go to war. This dealt with the legitimacy of the war. The second way in which international law dealt with armed conflict, was through law in an armed conflict, irrespective of whether the parties had the right to be involved in an armed conflict. If there was an armed conflict, the people involved would be prisoners of war. He made the example of the war in Iraq. The legitimacy of the war was debatable, but what was certain was that there was armed conflict. When there was armed conflict, the GCs applied.

Ms P Daniels (ANC) asked what the implications were if some countries were not part of the Geneva Conventions. Did South Africa have jurisdiction over those countries or the people in those countries in terms of the GCs?

Mr Maake asked why religious people were protected. While they boosted the morale of soldiers active in combat, there were cases where the church was wrong.

Mr Njikela replied that the principle was that armed conflict was between combatants. In terms of international law, medical and religious personnel could be there as long as they did not actively participate in the war. They did not pose any direct threat. He noted there were a number of logistical requirements for nations to go to war. They needed a supply of arms. Denel was a civilian institution. Would another nation be entitled to launch an attack on Denel? Religious personnel were not legitimate targets. Would it be legitimate to poison a water stream because soldiers used it, although it was a stream used by civilians as well? There was a fine distinction. It was a debatable issue.

Mr Maake said that he did not dislike priests, since when they talked, there was no point of correction. He felt that they could propagate war if they were in areas where armed conflict happened, and they did not deserve protection.

Mr Mlangeni added that priests were not supposed to propagate war. They were in war situations to pray for the souls of the soldiers. If they propagated war, they should no longer be protected.

Mr Mlangeni asked why international law was being applied in Libya. He was not taking sides. There was a civil rebellion in Libya as it was in Egypt. In Egypt the people managed to force the leader out of his position. The rebels in Libya were not successful to date. The UN had taken a decision and Libya was being attacked by the North Atlantic Treaty Organisation (NATO) forces. Medical aid and food were supplied to the country. It was a civilian war, but international law applied.

Mr E Mlambo asked regarding a recent occurrence in South Africa. A Nigerian national was captured while conspiring to kill fellow Nigerians in South Africa. He was connected to the Niger Delta People's Volunteer Force. He asked how such a person had to be treated in terms of the GCs.

Mr Njikela replied that the Niger Delta situation was a complex one. The question was whether what was happening there qualified as an armed conflict. It was more an internal disturbance and riots. It was not an armed conflict. International law did not apply. Normal law enforcement applied.

Mr Mlambo was not satisfied with the answer supplied to his question. He said that there was no armed conflict in Nigeria. He was talking about the South African security forces that made an arrest in South Africa. A Nigerian came to South Africa to kill other Nigerians. He was operating within the RSA borders and he was suspected of planning an armed conflict in a country other than his own, in this case, South Africa.

Mr Njikela replied that the matter was sub judice. The person had been arrested, according to his knowledge, under anti-terrorism legislation. He did not want to risk an answer as he was on shaky ground. The same applied to the Libya question. International law dealt with two things. Firstly, the right of a country to go to war and secondly, the law in (during) war. In this case, the law in war applied. Whether the nations of the world had the right to intervene in Libya, was translated by bodies like the United Nations and others. He did not want to express an opinion on it. What he could say was that there was an armed conflict in Libya, which meant that the GCs applied.

Mr Mmona said that many issues were not black and white. There were many grey areas.

The meeting was adjourned.