Defence Review: Joint Standing Committee's Constitutional Responsibility: State Law Advisors' briefing

Meeting report

Defence Review: Constitutional Responsibility of the Joint Standing Committee on Defence: Office of Chief State Law Advisor (OCSLA) briefing
Mr Enver Daniels, Chief State Law Advisor, Office of the Chief State Law Advisor, gave a brief background to the Defence Review Committee. The Minister had appointed the Defence Review Committee to prepare a consultative document and engage in comprehensive public consultation with key stakeholders, interested parties and civil society. Committees such as this were appointed for specific purposes, and were to help the executive to formulate policy. The President was empowered by section 85 of the Constitution to develop and implement national policy, together with other Cabinet Members. The formulation of defence policy under the Defence Act 2002 was made subject to the authority of Parliament and the national executive.

The Defence Review Committee met for the first time on 14 July 2011, to receive its mandate and terms of reference from the Minister. The Defence Review, once completed, should provide:
- a defence policy that was supportive of the government’s priorities and strategic intent
- a reviewed or confirmed defence mandate with associated defence functions, high level tasks, strategic concepts, doctrine, capabilities, level of effort and structure
- a sound policy for determining the blue print for the Defence Force design and structure, as well as future defence fiscal and resource framework.

The Minister further set out the key considerations and critical questions on which the Defence Review Committee needed to reflect, during its deliberations. However the report of the Defence Review Committee would not be binding on the executive until such time as the policies formulated by it had been approved and adopted by the national executive.

Mr Daniels then turned to a consideration of the powers of the Joint Standing Committee on Defence (the Committee). The Committee was established by the Interim Constitution and although that Interim Constitution had been largely repealed, the provisions relating to the Committee remained in force. The Committee, by virtue of section 228(3)(d), was empowered to investigate and make recommendations regarding the budget, functioning, organisation, armaments, policy, morale and state of preparedness of the South African National Defence Force (SANDF) and to perform other functions relating to Parliamentary supervision of the Force as prescribed by law. The Parliamentary Joint Rules 120A, 120B and 120C were additional to the Constitution’s section 228(3). However, Joint Rule 117 established a Joint Committee on Oversight of Security Matters, whose function was set out in Joint Rule 119, and this was similar to those of the Joint Standing Committee on Defence. The Notes to these Joint Rules were confusing. Note 2 stated that the main function of the Joint Standing Committee on Defence was to do an annual review of the SANDF and the South African Police Service (SAPS), whereas Note 5 stated that until the Interim Constitution had been repealed the Committee must have oversight functions concerning the SANDF. It appeared, however, that the Joint Standing Committee on Defence was still empowered to deal with all matters listed in Section 228(3).

The Constitution provided that issues of National Security should be subject to the authority of Parliament and the national executive. It also provided that, in order to give effect to the principles of transparency and accountability, multi-party Parliamentary committees must have oversight over all security services, in a manner determined by national legislation or the rules or orders of Parliament. Both the National Assembly (NA) and the National Council of Provinces (NCOP) were vested with enabling powers by the Constitution and the Defence Act, to exercise oversight duties over the Department in charge of Defence. The National Conventional Arms Control Act 2002, No. 41 of 2002, also provided for reports to be submitted to Parliament.

Mr Daniels therefore concluded that the Joint Standing Committee on Defence therefore had a constitutional responsibility to consider the report of the Defence Review Committee and to make recommendations on it. The Committee also may verify some or all the information contained in the Review, and for that purpose may initiate its own investigation.

Parliamentary Legal Advisors briefing
Mr Ntuthuzelo Vanara, Senior Parliamentary Legal Advisor, agreed, in essence, with most of the briefing by the Office of the Chief State Law Advisor (OCSLA). However, he came to a slightly different conclusion. He noted that the current review of the defence policy by the Defence Review Committee was concerned with policy development, and this was primarily an executive function. IN his view, section 228 of the Interim Constitution therefore empowered the Joint Standing Committee on Defence only to investigate and make recommendations on the policies of the SANDF (amongst others), but since the development of actual policy was an executive function, the Joint Standing Committee on Defence would have to submit its recommendations to the Minister, or to an entity or institution performing such a function on behalf of the Minister. In this case, the relevant entity would be the Defence Review Committee. Consequently, he thought the constitutional role of the Committee was limited to making recommendations to the Minister or the Defence Review Committee on the development of defence policy.

Discussion
Mr D Maynier (DA) asked OCSLA for clarity on the role of the Portfolio Committee on Defence.

Mr Daniels referred Members to the Rules of the National Assembly relating to the Portfolio Committee, citing, in particular, Rule 201. The general Portfolio Committee Rules should apply to the Portfolio Committee on Defence. It must therefore maintain oversight over the national executive authority within its portfolio, including oversight over  the implementation of legislation, any executive institutions falling within its portfolio, any constitutional institutions falling within its portfolio and any other body or institution in respect of which oversight was assigned to it. Other functions were also assigned to portfolio committees. However, Mr Daniels was of the view that since the Joint Standing Committee on Defence was established by the Constitution, it perhaps had a more important role to play than the Portfolio Committee

An ANC Member asked what was entailed in the consultative stakeholders process, as defined in the Defence Review Committee’s mandate, who the stakeholders were, and how often these consultations must be held.

Mr Daniels referred Members to the media report of 22 August 2011 that was issued by the Defence Review Committee. This set out that the Defence Review Committee had identified a number of key stakeholders to the Defence Review, had engaged with them, and would continue to do so. The key stakeholders identified included the National Planning Commission, Presidential Commission on State Owned Enterprises, South African Police Services, Customs Border Management, Department of Home Affairs, Council for Scientific and Industrial Research (CSIR), South African defence industry, the Department of Military Veterans, South African Revenue Services, the Reserve Force Council and others.

Another Members asked if this was a comprehensive list of all stakeholders, and whether any other sector of society needed to be included.

Mr Daniels responded that there was no indication of how the Defence Review Committee arrived at the key stakeholders, and those identified may not necessarily have satisfied the requirement for full consultation.

A Member asked if SAPS were still a part of the responsibility of the Joint Standing Committee on Defence, as prescribed by Note 2 to Joint Rules 117 and 119(1).

Mr Daniels replied that the Joint Standing Committee was a joint committee over all security matters in South Africa, including the Defence Force and the South African Police Services. He again reiterated that the roles and functions of the Committee were set out in Rule 119, although closer investigation revealed a possible overlap with the role of the Joint Committee on Oversight of Security Matters. This latter Committee was required, by Rule 117, to meet at least once a year to carry out a review of all security matters in the nation. This may be an area needing legislative amendment in future.

The Chairperson asked if there was in fact an existing Joint Committee on Oversight of Security Matters.
Mr Daniels was unable to give an answer, as he was unsure whether or not the Committee existed, even though it was a requirement, according to Rule 117, that it should be in existence and meet at least once a year, for the purpose of performing the functions listed in the Parliamentary Rules.

The Chairperson asked for further explanation on the functions and role of the Secretary of Defence.

Mr Daniels replied that, as shown in the presentation, Parliament had a crucial role to play in security matters. The Secretary of Defence was the key link between the South African National Defence Force and Parliament, especially in respect of oversight and policy formulation. He stressed that the Joint Standing Committee on Defence was the most important Committee on defence issues and, according to Section 228 of the Interim Constitution, had extensive powers, including powers of investigation, and powers to make recommendations on the budget related to defence matters. He stated that policy formulation and execution around defence policy were subject to the authority of both Parliament and the National executive, and this included the review of the report from the Defence Review Committee.

Mr Maynier asked for clarification on the fact that formulation of defence policy was subject to Parliamentary approval.

Mr Daniels explained that committees such as the Defence Review Committee were usually appointed by Ministers to help them in formulating policies. Those policies were then presented to Cabinet, for approval and adoption, under the Presidential powers of policy formulation granted by Section 85 of the Constitution. However, when it came to formulating defence policies, Section 2(a) of the Defence Act stipulated that such policies must be subject to the approval of both Parliament and the national executive. This provision of the Defence Act was consistent with the governing principles relating to national security in the Constitution, as stated in Section 198(d), which also made “national security” subject to the authority of Parliament and the national executive.

Mr Maynier observed that the conclusions drawn by the Parliamentary Legal Advisor and the Chief State Law Advisor on the role of the Committee were contradictory.

Mr Vanara explained that insofar as Mr Daniels’ views related to Parliament as a whole (rather than just to the Committee), he agreed that defence policy was subject to Parliamentary approval.

Mr B Fihla (ANC) requested clarification on the roles of the Joint Standing Committee on Defence and the Portfolio Committee on Defence. He asked if these two committees had different functions, and whether the Joint Standing Committee on Defence was intended to act as a policy formulator or an advisor to the Portfolio Committee on Defence.

Mr Vanara responded that there was general consensus, within Parliament, that the roles of the two committees did in fact overlap, and there was a need to delineate the functions of both committees to a logical conclusion. However, the role of the Joint Standing Committee on Defence, as it related to oversight of the Department of Defence, was constitutionally entrenched, since the Interim Constitution had stated that it was the Committee responsible for that oversight. However, he suggested that there was a need for Parliament to decide which Committee carried out particular functions.

The Chairperson observed that it would be contradictory for Parliament to assign roles to both Committees in an attempt to delineate functions, when the role of one of the Committees had already been set out in the Constitution. He asked for clarification on this.

Mr Vanara responded that the role of portfolio committees in general, and therefore of the Portfolio Committee on Defence, were outlined in the National Assembly Rules, whilst the NCOP Committees’ powers were set out in the NCOP Rules. The Joint Rules of Parliament did not, however, set out the functions of the Joint Standing Committee on Defence, because section 228 of the Interim Constitution had done so. However, a general interpretation of the rules on portfolio committees made it apparent that there was an overlap with the role of the Joint Standing Committee. However, irrespective of these areas of uncertainty, it was clear that the Joint Standing Committee had a legitimate claim to perform the role as set out in the Interim Constitution.

Mr Maynier stated his opinion that it was clear, from both presentations, that the Joint Standing Committee on Defence did have a very important role to play in the Defence Review. He suggested to the Chairperson that Committee should hold an in-depth consultation and structured hearings, which must of course include opposition parties, in preparation for making recommendations to the Defence Review Committee.

The Chairperson reiterated Mr Maynier’s remarks on the important role that this Committee had to play in the Defence Review and thanked all in attendance.

The meeting was adjourned.