Military Ombudsman Bill [B9-2011]: Opinion of the Parliamentary Legal Adviser

Meeting report

Briefing by the Parliamentary Legal Adviser (PLA)
Mr Nthuthuzelo Vanara, Senior Parliamentary Legal Adviser, Legal Services Office, Parliament advised that the Chairperson of the Committee had requested an opinion on whether or not the Office of the Military Ombudsman as established by the Military Ombudsman Bill would satisfy any legal requirements or legal test of independence.

The PLA had applied the test of independence that was used to assess the independence of Chapter 9 institutions.  The Office of the Military Ombudsman was not a Chapter 9 institution and there was no constitutional obligation to create an independent Military Ombudsman.  It was however the intention of the Committee to do so.

Ms Sueanne Isaac, Parliamentary Legal Adviser, Legal Services Office, Parliament presented the briefing on the opinion of the PLA to the Committee (see attached documents).  The opinion included a general overview of the assessment of independence, an assessment of the clauses of the Bill and a conclusion.

In general, the independence of an entity was assessed by examining the context, form an structure and the public perception.  The general overview included the definition of the office of an Ombud, the historical purpose of an Ombud and the general characteristics of the office of an Ombud.  The guidelines applied by the United States Ombudsman Association included the requirements applicable to ensure independence, impartiality and fairness, credibility of the review process and confidentiality. 

Once the mandate of the entity was determined, the level of independence given to it must enable the entity to fulfill its mandate.  The mandate and the context in which the entity operated must be complimented by its form and structure.  Both the officials and the entity had to be allowed to act autonomously.  The quality of the relationship between the Military Ombudsman and the Executive played a role in determining the independence of the institution.  Other criteria to determine the level of independence were the appointment and removal of the head of the entity, the appointment of staff, security of tenure of the head, the conditions of service, the reporting lines and the mechanism of funding of the entity.  The appointment of an Ombudsman by the Executive did not necessarily imply that the appointee would not act independently and impartially.  The public’s reasonable perception of independence played an important role in determining if an entity was independent.

The definition of ‘complaint’ in clause 1 of the Bill was examined.  The jurisdiction area of the Military Ombudsman was not clearly defined in the Bill and was deduced from the definition of ‘complaint’.  In contrast, the limitation of the mandate was set out in detail in clause 7.  A clear expression of the mandate would allow the Military Ombudsman to exercise its authority over a clearly defined area and entrench its independence.  The Military Ombudsman should be empowered to investigate complaints regarding systemic issues.  The Military Ombudsman was not empowered to initiate investigations, which severely curtailed its independence.  The reference to the definition of ‘complaint’ in clause 7 made the meaning of the clause unclear and confusing.

The Objects of the Office in clause 3 of the Bill should include reference to the objectives of independence and impartiality, in line with the provisions in clause 8.

Clause 5 dealt with the appointment of the Military Ombudsman and Deputy Military Ombudsman.  The appointment of the Military Ombudsman by the President might create the perception that the Ombudsman was not independent of the Executive.  The PLA suggested that the appointment was made by the President after consultation with the National Assembly and on the recommendation of the National Assembly.  The non-renewable, fixed term of office ensured security of tenure and removed the opportunity for the incumbent to seek the favour of the person that had the discretion to reappoint him/her.  The Committee had the discretion to decide on the number of years of the term of office.  Clause 5 (4) made provision for the remuneration of the Military Ombudsman.  The service conditions should be fixed for the duration of the term of office.  The President had the sole discretion to remove the Military Ombudsman from office but could create the impression that the Ombudsman might act without independence or impartiality out of fear that he/she might be removed from office.  The PLA suggested that the removal from office of the Ombudsman by the President was done on the recommendation of the National Assembly.

Clause 6 covered the powers and functions of the Ombudsman and the Deputy Ombudsman.  Clause 6 (6) empowered the Ombudsman to compel the Department to comply with recommendations.  This provision went beyond the usual powers of an Ombud, who was usually empowered to make recommendations to the Executive but could not compel the Executive to act on the recommendations.  The discretion of the Minister to assign additional functions to the Ombudsman in terms of clause 6 (9) was very wide and did not provide for consultation with the Ombud or for legislative oversight.  The functions of the Ombudsman must be clearly defined and should not be easily altered in order to ensure the independence of the office and to protect it from interference.

Clause 7 detailed the limitation on the jurisdiction of the Military Ombudsman.  The PLA suggested that the Bill included a clause that detailed the jurisdiction as well.

Clause 8 included important protections to ensure independence and impartiality.  The clause must be read in conjunction with the penalty provisions under clause 14.  It was necessary for the Ombud to respect confidentiality but investigations also had to be conducted in an open and transparent manner.  The Ombudsman would be subject to any legislation dealing with the classification of State information.

Clause 9 provided for the Ombudsman to appoint staff after consulting the Minister.  The PLA suggested that the Ombud was given the sole power to appoint and remove staff to avoid any potential interference by the Minister and to enhance the independence of the office.

Clause 10 made provision for the funding of the office of the Ombudsman to be included in the budget of the Department of Defence.  Such provision gave the Department direct control over the budget of the Military Ombudsman and potentially indirect control over the manner in which the Ombud exercised its function.  The Constitutional Court had viewed both financial and administrative independence as factors relevant to independence and the PLA suggested that the Committee gave consideration to this issue.

Clause 11 dealt with the submission of reports to the Minister and required the Minister to table the annual report of the entity in Parliament and to provide the report to the Public Protector.  The clause made further provision for the Military Ombudsman to submit reports to the Minister as and when requested by the Minister.  The PLA was of the opinion that the entity would be vulnerable to political interference if required to report to the Minister.  However, the Minister should be allowed to legitimately enquire into the work of the Military Ombudsman.  The PLA suggested that careful consideration was given to how the clause was couched to avoid compromising the perception of independence.

Clause 14 dealt with offences and penalties.  The Military Ombudsman was required to respect the confidentiality of information but this could impact on the ability of the Ombud to make its findings public.  The PLA urged a balance between the need to protect confidentiality and the need for the Military Ombudsman to function in a transparent manner.

Clause 15 provided for the promulgation of regulations, which would prescribe the procedures that would be followed by the Military Ombudsman.  The PLA suggested that Parliament exercised oversight over the regulations by making provision for the regulations to be tabled in and approved by Parliament.

The PLA concluded that the Bill seeked to create a Military Ombudsman that was independent and impartial.  It was suggested that the Committee considered entrenching the independence of the office by giving special consideration to the appointment and removal from office of the Ombudsman, the appointment of staff, the reporting lines between the Ombudsman and the minister and the exercising of oversight over the regulations.

Mr Vanara concluded that the opinion did not seek to prescribe to the Committee but was intended to assist Members in making informed decisions on the Bill.

Discussion
The Chairperson asked for clarity on the opinion concerning the reporting lines of the Ombudsman.

Mr Vanara said that if the Military Ombudsman was to be seen to be independent, the current provisions in the Bill did not provide adequate protection against political interference.  It was accepted that there was a need for a relationship between the Military Ombudsman and the Minister as the responsible authority.  The Military Ombudsman was not intended as a counter-force but assisted the Minister in carrying out her responsibilities.  There were exiting complaint mechanisms in place within the South African National Defence Force (SANDF) and the Military Ombudsman was intended as a last resort if the existing complaint procedures had failed.  However, if the Military Ombudsman found that a significant percentage of complaints referred to his office were matters that should have been dealt with by the grievance system, it would indicate that there was something seriously wrong with the Department’s grievance system.  The danger was that the Military Ombudsman was seen to report to the Minister but that should be balanced against the Minister’s responsibilities.  The Military Ombudsman should report to the National Assembly (i.e. the Portfolio Committee on Defence and Military Veterans) and should make its reports available to the Minister.

Mr D Maynier (DA) thanked the PLA for the detailed and thorough opinion.  He asked if the PLA considered the Bill to make adequate provision to ensure that the Military Ombudsman would be independent.

Mr M Nhanha (COPE) noted the recommendations made by the PLA.  He asked if a comparison to other similar entities was done.  He wanted to know who was responsible for the appointment of other Ombudsmen.  He asked what the basis was for making the remuneration of the Military Ombudsman equivalent to that of a Judge.

Mr J Masango (DA) asked if the Bill would not create a situation where all complaints were referred to the Military Ombudsman, which would then become an appeal mechanism.

Mr Vanara replied that the opinion of the PLA was not prescriptive, was not judgmental and only gave advice to the Committee on the areas in the Bill that needed to be strengthened.  The Bill was still a work in progress and the final version was not yet determined.  The PLA had found some weaknesses but the Bill needed to be considered in a holistic manner.

Ms Isaac advised that the PLA had made use of the research and other documents that were provided to the Committee.  The international experience was taken into consideration but it was concluded that the local experience of similar entities would be the most appropriate.  The provisions concerning the remuneration of the Ombudsman were included in the Bill by the Department and were not based on any recommendation of the PLA.

Mr Vanara said that it was acknowledged that a large number of complaints would burden the Military Ombudsman.  The benefit was that the morale of the members of the SANDF would be improved if there was an independent organisation that they could turn to.  The standing of the Military Ombudsman would be improved if soldiers developed trust in the entity, their complaints were satisfactorily resolved and the recommendations were accepted by the Department.

Ms H Mgabadeli (ANC) observed that the opinion of the PLA had raised a number of issues for the Committee to consider.  She asked what the deadline was for the Committee to finalise the Bill.  She asked if the buck stopped with the Minister or with the President.  She felt that the Committee should have the opportunity to discuss the issues with the Minister and the President and that the Committee was not taken seriously enough.

Ms P Daniels (ANC) noted that the definition of ‘complaint’ appeared to allow any member of the public to lodge a complaint about a member of the SANDF with the Military Ombudsman.  This implied that it had to be known to the complainant that the person concerned was a member of the SANDF.  There should be a mechanism in the Department to deal with complaints form the public in the first instance.

Mr Maynier supported the establishment of the Military Ombudsman.  He agreed with the Minister that the Military Ombudsman was essential and would assist with the implementation of the recommendations of the Interim National Defence Force Service Commission (INDFSC).  The current SANDF grievance mechanism was in very poor shape.  However, the Military Ombudsman must be independent and the PLA’s opinion on this issue was very useful.  The Committee must ensure that there was no delay in finalising the Bill, which should be done before the end of 2011.

Mr Maynier asked if the independence of the Military Ombudsman would be compromised if the incumbent was a former senior military officer.  The Department had emphasised that the military had its own deeply embedded culture.  He wondered if the Military Ombudsman would be biased towards the military if the incumbent was a former General.

The Chairperson said that the Bill had emanated from the Committee.  The Committee had set target dates for the processing of the Bill.  The Department was one of the stakeholders and was invited to participate in the processing of the Bill.

Mr Vanara pointed out that the Public Protector had the power to investigate a complaint made by a member of the public.  There was no legal requirement that the complainant had to approach the Department concerned in the first instance.  Prior experience of the Military Ombudsman was a tricky issue.  Reference could be made to recent Constitutional Court rulings concerning the appointment of judges.  The Court had found that a candidate’s previous employment or experience (including political activity) should not be regarded as an impediment to his ability to do the job.

Mr L Diale (ANC) agreed with the necessity to establish a Military Ombudsman.  The terms ‘perception’ and ‘public opinion’ were very broad and he asked for more clarity on the issue of the perception of the public of the independence of the Military Ombudsman.

Mr Nhanha asked if the limitation on the jurisdiction of the Military Ombudsman in clause 7 could apply to instances where the Military Ombudsman refused to investigate a complaint.

Mr Vanara replied that the Military Ombudsman had to be empowered to conduct proactive (not only reactive) investigations within the area of its jurisdiction for it to be seen as an independent entity.  Public perception was the view and opinion of the public, which included members of the SANDF, other persons with a vested interest and the media.

Ms Isaac added that there was an objective test that was applied to determine public perception.  The PLA recommended that the exact extent of the jurisdiction of the Military Ombudsman was clearly specified in the legislation.

The Chairperson thanked the PLA for the opinion on the Bill.  The Committee would use the opinion as well as the other documents that had been provided during the deliberations on the Bill.

The meeting was adjourned.