Defence Bill: hearings

Meeting report

DEFENCE PORTFOLIO COMMITTEE
21 May 2002
DEFENCE BILL: PUBLIC HEARINGS

Chairperson: Ms TR Modise (ANC)

Documents Handed Out:
Defence Bill [B60-2001]
South African Catholic Bishop's Conference Parliamentary Liaison Office Submission (Appendix 1)
Centre for Conflict Resolution Submission (Appendix 2)
Ceasefire Campaign Submission
Economists Allied for Arms Reduction Submission
Lieutenant Colonel JU vd Westhuizen: Commentary on the Defence Bill (e-mail [email protected] for document)
African Armed Forces Submission (e-mail [email protected] for document)
South African National Defence Union (SANDU) Submission

Summary:
The Committee convened public hearings on the Defence Bill. Although the majority of the organisations supported the Bill they also had reservations and concerns. These concerns centred around the absence of an Military Ombudsman in the Bill. There were also concerns about the current imbalance between the narrow, military needs of defence policy and the wider needs of our society. The needs of human security - health, housing, welfare and so on, seem to have a lower priority. One submission called for the equipping of the reserve forces and putting to use equipment that deteriorating because of disuse.

Commentary on the Defence Bill by Lt Col. JU VD Westhuizen

Discussion
Mr Smit (NNP) noted that an ongoing issue was that of the reserve forces and that this was clearly outlined in the report given by Lt. Col. VD Westhuizen. This issue needs to be addressed since not much has been done about the reserves and suggested that they should set a date by which time the Department of Defence outlines exactly what they intend to do with the reserves.

The Chair, Ms TR Modise, stated that an intensive four day workshop with the reserve forces had been planned. It will be intensive and begin to introduce the issues that the colonel is talking about.

The Chair asked what the Colonel meant exactly by representivity on the reserve council.
Lt. Col. VD Westhuizen stated that representation by the conventional reserves and the territorial reserves must be spread equally within the reserve council and that one group should not have more representation than the other.

Mr AJ Botha (DP) wanted confirmation as to whether the Colonel's position was that there was not enough money for Defence to do the job.
Lt. Col. VD Westhuizen stated that this was not his submission and questioned whether government really considered the reserve forces to be necessary. He stated that there is no use having a bill if nothing is done on the ground.

The Chair then wanted further clarification and stated her perception of Lt. Col. VD Westhuijzen's position. As she perceived it, his position was that he believed the Committee and government were hypocrites because they had a bill but were not really taking it seriously. As such, there was no point in having a bill at all.
Lt. Col. VD Westhuijzen stated that his position was not as strong as this.

Mr Ndlovu asked what police Lt. Col. VD Westhuijzen was referring to in his submission, was it the military police or the South African Police Services?

Lt. Col. VD Westhuizen's suggestion was that they use the military police when there are not enough police members on the ground to do the job.

Mr Ndlovu (IFP) then wanted to know if the military police should be given the same powers as the South African Police Services.

Lt. Col. VD Westhuizen reconfirmed his position that the military police should be given enough powers to do the work of the SAPS in situations where the SAPS cannot carry out their functions because of limited resources.

A Committee Member noted that Lt. Col. VD Westhuizen had highlighted problems with the bill, but wanted to know whether he could offer any solutions.

Lt. Col. VD Westhuizen re-iterated his belief that there should be equal representation on the council. Another recommendation was on the provision in the bill that soldiers should not be moved from their area. He believed that it was good that soldiers should join the force in an area close to their place of residence, this should not preclude the possibility that they might have to go and fight elsewhere should the need arise. They should therefore not be tied down to one specific area.

Mr Ndlovu then asked if Lt. Col. VD Westhuizen could replace phrases that exist in the Bill with better ones.

Lt. Col. VD Westhuizen referred to the provision in the bill, which stipulates that the Defense Force must support the SAPS during operations. However, this was not possible because they did not have the correct equipment to properly defend themselves. all a soldier is equipped with is an R4 rifle. If this is his only means of defence and he is in a situation where he is forced to use it, the result is often unnecessary death and bad publicity for the Defence Force.

Mr Smit (NNP) stated that Lt. Col. VD Westhuijzen's practical experience is important and that he should attend when the Department of Defence makes its representation.

The Chair stated that the matter would be put to the Committee. She then thanked Lt. Col. VD Westuijzen and highlighted the important issues raised that need to be considered. They were: 1) the equipping of the reserve forces and the issue of equipment that is lying around deteriorating while it actually could be put into good use. 2) the issue of representation on the Reserve Force Council and 3) the question of the determination of the Department to the reserve force concept.

South African Catholic Bishop's Conference Parliamentary Liaison Office
The SACBC made specific and general comments on the Bill. They acknowledged that the Bill is sound. They understood the Bill to provide a statutory basis for the implementation of defence policy, not to establish that policy itself. However, they were concerned about the current imbalance between the narrow, military needs of defence policy and the wider needs of our society. The needs of human security - health, housing, welfare and so on, seem to have a lower priority. This situation is particularly questionable in the light of pressing poverty-related problems that pose a much more serious threat to peace and stability than any military threat from outside our borders. They argued that defence policy has so far not lived up to this broad vision of national security.

Discussion
A Committee Member noted Fr Pearson's concern that the Bill should not exclude those with a criminal record from becoming a permanent commissioned officer as it now does, but wanted to know whether Clause 52(2)(f) was sufficient to allay his concerns. (This clause allows those who have been granted amnesty under the Promotion of National Unity and Reconciliation Act of 1995 to join the Defence Force).

Fr Pearson asked whether the Minister himself had applied for amnesty and if not, according to the Bill, he could be excluded from a post in the Defence Force even though he is the Minister of Defence.

The Member asked for clarification on the point of delegation, arguing that his concern did not really make sense since it was in the power of the delegator to recall the delegation and furthermore, that there are exceptions to this power.

Fr Pearson said that a close eye must be kept on this because it could lead to a situation where civilian control of the Defence Secretariat is undermined. There must therefore be a proviso that delegation to members of the Defence Force may only occur in exceptional circumstances, or where no civilian member of the Secretariat is competent to assume the specific power, which the Secretary intends delegating.

The Member then referred to paragraph five of the submission. Did the submission require Parliamentary oversight or Parliamentary approval of the guidelines.

Fr Pearson stated that there must be approval by Parliament, but that he hoped that Parliament would exercise oversight in seeing whether the guidelines were adhered to or not.

The Minister of Defence then intervened, assuring the Church that the position of the Secretary of Defence as a civilian authority is secure and that this is enshrined in higher law. The only time this would change, would be if a decision were taken by Cabinet to go to war.

Mr Ndlovu (IFP) then referred to paragraph 7 of the submission and asked if the speaker really meant that members of the Church could not be told to take up arms if South Africa went to war.

Fr Pearson stated that the Church did not take the standpoint that conscription is objectionable, but stated that it should be the last resort. He asked for clarification in the Bill between the meaning of mobilisation and conscription. As he saw it, the term mobilisation meant the mobilising of existing military forces while conscription referred to the bringing in of new people into the forces. He stated that there must be a provision for conscientious objectors in the Bill.

A Member noted that the speaker believed that people with dual citizenship should be allowed to be a permanent commissioned officer in the SANDF. He wanted to know why they should offer fence sitters such posts, especially since this could increase the likelihood of the leaking of information.

Fr Pearson stated that the question of citizenship is irrelevant with regards to a person's commitment to a country. There should be other tests to determine whether or not a person should be included or excluded. He further stated that there are often very good practical reasons why a person should have dual citizenship.

The Chair rounded off the presentation by summarising the main issues:
-mobilisation
-citizenship
-delegation
The dilemma of the Committee was that they could not say that the Minister of Defence cannot delegate, but at the same time they do not want certain powers delegated. They must therefore try to come up with a formulation so that as long as this government holds, civilians will keep office. She also accepted the point that there should be a greening period for an ex-military man to 'civilianise' before he can be considered for a post in the defence secretariat.

Minister Lekota stated that according to the Constitution, the national Defence Force has to be voluntary and even if they wanted to change this, they could not. With regards to the term 'mobilisation' in the act, he stated that one could mobilise great amounts of people without compelling them to do anything. Mobilisation is a broad term and can be extended to include the mobilisation of civilians in an awareness campaign. With regards to the question of dual citizenship, he stated that it is essential that only South African Nationals serve on the Defence Force. One of the reasons for this is to avoid mercenary type situations such as those in Angola. Finally, with regard to civilian control of the Defence Secretariat, he stated that it is essential that civilians control the decision-making when it comes to deciding when and where to deploy the Defence Force.

Submission by the Center for Conflict Resolution.
The Centre for Conflict Resolution (CCR) viewed the current Defence Bill in a positive light, as being consistent with democracy and the Constitution. They supported the Defence Bill's promotion of civilian oversight and control of the armed forces. Also the fact that it makes sexism and racism within the Department of Defence a punishable offence and makes provision for conscientious objection. It also does not give the South African National Defence Force (SANDF) full policing powers when they are deployed in an internal policing role. However, they had a number of concerns. CCR asked the Defence Committee to consider adding a section to the Defence Bill that acknowledges the existence of the Military Ombudsperson, and legislates for the provision of the necessary resources in order for the Military Ombudsperson to fulfil his/her duties effectively.
(please refer to the attached submission)

Discussion
Mr Smit (NNP) raised the issue of a military ombudsperson and asked whether Mr Lamb had any suggestions in this regard.

Mr Lamb stated that in terms of the Bill, he would want to see a completely independent one. Having just one person would be insufficient and that what is needed is an established office that can properly deal with complaints.

Mr AJ Botha (DP) wanted to know why he requested that peacekeeping be brought into the bill.

Mr Lamb stated that this is a secondary function of the SANDF and that one gets the impression that the SANDF will be involved in peacekeeping operations in the future.

Mr VB Ndlovu (IFP) raised the issue of deployment, saying that this had been catered for in the Constitution and asking why it should be repeated in the Bill.
The Minister interjected, saying that Clause 18 deals with deployment and the use of the Defence Force and that they have applied their mind to the matter.

Mr Lamb stated that if the Committee has considered the issue and is satisfied, then he is satisfied.

With regards to peacekeeping forces, the Minister then stated that as members of the UN, they are committed to their peacekeeping obligations. He stated that Chapters 6 and 7 of the UN Charter defines conditions under which they as members will take part in peacekeeping operations.

Mt VB Ndlovu (IFP) then asked for clarity regarding the question of scheduling. In the submission, it was stated that certain laws had not been repealed. Furthermore it was then submitted that many sections have been effectively replaced with the Military Disciplinary Supplementary Measures Act (No 16 of 1999). Mr Ndlovu's point was that this submission is pointless because what has not been repealed has been replaced.
Mr Lamb stated that he was simply reading the bill as he saw it.

A Member asked whether the issue of civil education would not be better dealt with in regulations than in the bill.
Mr Lamb stated that as long as it is dealt with, he would be happy.

The Chair stated that the Committee had thought that the issue of civic education had been adequately dealt with in Clause 62 while clearly it had not. She affirmed the Committee's dedication to this issue stating that the Committee needs to ensure that civic education does not disappear.

She also stated that the issue of scheduling needs to be looked at more closely, especially at those sections that have not been repealed. Finally she stated that they will be considering whether or not they will include a provision in the bill for the creation of an ombudsperson and that they do regard this issue as being an important one.

The Minister stated that there are many avenues one can take if they have complaints and the position of an ombudsperson would therefore be a bit redundant. There are Chapter 9 institutions in the Constitution, there are dedicated members in the public protectors office. Finally there is the Human Rights Commission. South Africa has done a great deal more in this regard than other countries. There are even trade unions in the SANDF who can take issues to the minister. If nothing works, the Constitutional Court is always there as a last resort.

The Chair concluded that the Committee thinks that the issue of an ombudsperson is vital and that they will consider the issue.

Submission by the African Armed Forces:

Discussion
A Member asked if Mr Mcintosh had any suggestions regarding the issue of discipline since he had highlighted it as a problem, but had not offered any possible solutions.

Mr Mcintosh suggested that there be longer training periods for the preparation of officers. He highlighted the US as an example where recruits require four years academic training before they are commissioned. He stated that in South Africa there is an excellent training facility in Heidelburg. Training is especially important if South Africa is going to be involved in Peace Keeping operations where South African Troops will have to work together with troops from other countries - it is therefore essential for South African Troops to meet international norms and standards.

The Chair stated that the issue of training is also important for the Committee and that they would never want to reach a situation where South African soldiers are never in command of international forces because of a lack of training.

Mr Smit (NNP) asked what should be done to give the Reserve Force Council more teeth and wanted to know why he thought that the bill was insufficient in this regard.

Mr Mcintosh stated that he cannot see how the Reserve Force Council can do anything, it has no authority or responsibility. There are no adequate channels of communication between the council and the units they are responsible for. Finally the Council should deal with the day to day requirements of their units such as the supply of boots and the vehicle shortages.

Mr AJ Botha challenged Mr Mcintosh on this point, arguing that the real problem was lack of funding and so he cannot see how giving the Reserve Force Council teeth will solve this problem.

Mr Mcintosh stated that the budget is indeed a problem, but the problem lay not in the lack of funds, but in the way the funds were spent. He stated that the army is grossly over-ranked and needs to be downsized. Furthermore, our soldiers are well paid according to international norms. What is required is a restructuring.

The Chair accepted Mr Mckintosh's suggestion on the definition of a command and agreed that a distinction should be made between an order, a command and an instruction.
With regards to the Reserve Force Council, she stated that they can decide how dynamic they want to be and that it is essentially up to the eighteen members on the council. However, they do not have powers of command and the reason for this is simply that if they had such powers, the whole command structure of the Defence Force would be turned on its head. However, she stated that the relationship between the Reserve Force Council and the Council of Defence needs to be re-looked at. This is the primary objective. She believed that the issues of equipment, employment and deployment should be resolved by the Council.

Ceasefire Campaign

Discussion
A Committee Member questioned Mr Thompson on his assertion that the military should not be involved in non-military functions. What does he suggest should happen when the police force is not sufficient to deal with a situation? Furthermore she questioned his assertion that peace support operations should fall under the Department of Foreign Affairs and not the military.

Mr Thompson responded that the fact that South Africa today is essentially a 'militarised' society is a legacy of our past and that we have to break out of this legacy. A start must be made somewhere. Unfortunately, the present bill does not do this and rather asserts the status quo.

Mr Ntuli raised the issue that there are some instances where the police are clearly inefficient and this makes it essential to call in the military. One situation for example is the recent taxi violence. He also asked Mr Thompson how he would like the section dealing with mobilisation to be phrased in order to ensure that conscientious objectors would be taken into account.

In response to the second question, Mr Thompson suggested that they define the term 'mobilisation' in the bill. On the first question, Mr Thompson suggested that the capacity of the police force be extended to deal with such situations. The police forces are community-based and their focus is different- the police focus on the keeping of the peace rather than on war.

Mr Ndlovu asked about their submission on military discipline and the use of the word communication in Clause 48 (3), which they suggested, was too broad. His second question was based on the assertion that counter-intelligence is essential in maintaining democracy, thus rebutting Mr Thompson's assertion that it has no place in democracy.

As to the first question, Mr Thompson stated that the term 'communication' is too broad and that it deals with any kind of information, even if it is irrelevant. This should rather be restricted to certain kinds of information. With regards to the second point, he simply stated that their viewpoints differed in this regard.

The Chair concluded that Mr Thompson's report was both interesting and informative. She stated that the committee has many pressures on it and there are many points of view. One of the practical realities is that South Africa needs a Defence Force. This need must be balanced with the need to demilitarise society. The committee clearly does not want soldiers to be employed in civilian positions. In this regard it is the duty of government to re-orientate the police force so that the provisions in the bill do not have to be realised.

Economists Allied for Arms Reduction

Discussion

Mr AJ Botha (DP) wanted to know what the connection was between the bill and the presentation made.

Mr Crawford-Browne stated that the ethos of the Defence Bill is a military one whereas in terms of our Constitution, it should have a human ethos.

Mr Smit (NNP) was concerned that if one does away with the Defence-Force as ECAAR-SA is suggesting, this would be prejudicial to South Africa and that we need to avert the possibility of some form of attack whether real or not.

Mr Crawford-Browne responded by stating that one must look at the circumstances in South Africa and adopt a policy to accord with these circumstances. The real pressing needs of South Africa are social ones and these must be dealt with first before one can even think about spending money on the military.

Mr Ndlovu wondered if Mr Crawford-Browne thought that the 1951 Defence Bill was better than this one purely because he wanted this one to be scrapped.

Mr Crawford-Browne responded that what is needed is a Bill that gives expression to the socio-economic commitments outlined in the Constitution.

Mr AJ Botha stated that in principle the Defence Force is part of the economic validity and wealth of our country and asked if Mr Crawford-Browne agrees with this.
Mr Crawford-Browne responded that it is a known fact that weapons procurement is economically unproductive.

The Chair ended the submission by thanking Mr Crawford-Browne for always making his point known to the Committee, stating that sooner or later they will hear him.

Submission by the South African National Defence Union

Discussion
During the submission, a Committee Member called a point of order, stating that the purpose of this meeting was to discuss the bill and not the budget.
The Chair stated that it is important for the Committee to make time for the unions and asked the speak to proceed with the bulk of the bill.

A Committee member questioned the wisdom of their submission in paragraph six that each and every regulation, order, instruction based in Clause 8 of the Bill should be subjected to the constitutional test of reasonability and justifiability. He also questioned their desire to have access to the Labor Court.

With regards to the first question, Adv Pikkie Greef argued that this is important because at the moment persons formulating orders are not limited at all. He mentioned examples of where soldiers were forced to work for long hours without having a forum in which to have their grievances heard. Such a constitutional test will help prevent labor problems from arising in the first place.

As to the second question, Adv Greef stated that while there is the military arbitration board, the Minister as of yet has failed to appoint five arbitrators. It has thus not worked and so all the union can do is to apply to the High Court for redress. The High Court is not equipped to deal effectively with labor issues and this is why members of the SANDF should also have access to the Labor Court.

Mr Ndlovu (IFP) referred to point 3(a) of their submission and the problems it raises with regards to the fact that the Secretary for Defence has more powers than the Chief of the SANDF. On the basis of this submission, he wanted to know if they believed that the powers conferred on the Secretary for Defence should actually be conferred onto the Chief of Defence.

The presenters stated that the point that they were simply trying to make was that there is a big problem at the moment with who is accountable and responsible to what. There are no clear channels of communication and they simply get passed on from one person to the next, the end result being that the issues never get resolved. They stated that the military bargaining council should have been operational on the 2 April. Two months have passed by and still it is not operational. A result of this is that the union still does not have a forum in which its grievances can be dealt with.

The Chair stated that she is aware that there are serious labor issues that must be resolved. Lines of communication must be clearly drawn and the idea of a military tribunal council must be revisited. The Committee is weary of trade unions, especially in the military context. It blurred the lines of command and if one is not careful, could undermine the whole command structure of the military. She stated that it essential that the Committee get together with the unions at a later date to discuss these issues.

The meeting was adjourned.

Appendix 1:
Southern African Catholic Bishops' Conference
PARLIAMENTARY LIAISON OFFICE

SUBMISSION TO THE PORTFOLIO COMMITTEE ON DEFENCE
ON THE DEFENCE BILL [B60 - 2001]

INTRODUCTION

1. The Southern African Catholic Bishops' Conference (SACBC) welcomes the opportunity to respond to the Committee's invitation to comment on the Defence Bill. We wish to place on record once again our appreciation of the exemplary manner in which this Committee - and in particular its Chairperson and support staff - provide the public and civil society organisations with opportunities to address it on legislative and policy issues.
2. Before moving to a consideration of various individual clauses, it is fitting to express our strong support for the principles set out in clause 2. These principles provide a sound basis for the statute as a whole; they must be allowed to animate not only the law itself, but must also be the yardstick against which everything done in terms of this law is measured.


SPECIFIC CONCERNS

3. Clause 6(3) provides that the Secretary for Defence must be a civilian. This is an important provision, since it emphasizes civilian control of the defence force. However, recent experience shows that a career military officer can, upon retirement, be appointed to this position. Such a candidate is in reality a military, rather than a civilian, appointee. In order to give proper effect to the underlying intention, this clause should stipulate that no-one who has served in a military capacity within the last five years may be appointed Defence Secretary.
4. A similar problem arises with clause 8. The Secretary for Defence is empowered to delegate any power to the Chief of the Defence Force, or to any member of the defence force. Once again, this undermines the civilian character of the defence secretariat. In order to maintain and protect civilian control of the defence secretariat, this clause should contain a proviso that delegation to members of the Defence Force may only occur in exceptional circumstances, or where no civilian member of the Secretariat is competent to assume the specific power which the Secretary intends delegating.
5. Clause 18 deals with the deployment of the SANDF in co-operation with the SAPS. While we believe that this is generally undesirable, we do accept that there may circumstances where military personnel are needed to assist the police. Given that military personnel are not usually trained or equipped for a policing role, it is essential that such tasks be performed under strict controls and according to firm guidelines. In this regard the provisions of clause 18(3)(c) are inadequate; the envisaged code of conduct and guidelines are left in the hands of the Minister, the Chief of the Defence Force and the National Commissioner of Police. We believe that Parliament must have oversight of such code and guidelines in order to ensure that the distinction between policing and military activities is upheld.
6. Clause 52(2)(f) precludes anyone who has been imprisoned for a criminal offence (and who has not been granted amnesty) from becoming a permanent commissioned officer in the SANDF. This offends the principle that a person who has served out his or her term of imprisonment has 'paid his or her debt to society'. Someone who has the requisite skills and training, and who wishes to serve his or her country in this capacity could end up being excluded simply because, at some point in the past, they committed a crime. In our view there is no need for such a provision.


Similarly, there is no need for 52(2)(c). That someone happens to hold the citizenship of another country should not be relevant to the question of whether or not he or she is fit to be an officer.


These provisions also allow the absurd result that a senior warrant officer, who may have effective responsibility for hundreds of soldiers, can be a former criminal and a citizen of a foreign country, while the most junior Lieutenant or Midshipman would be disqualified by the same factors.

7. We note that clause 85 appears to envisage the possibility of conscription. The term 'mobilisation' is not defined; we take it to mean the same as conscription. Whenever conscription is possible the right to conscientious objection must be safeguarded. While clause 64 establishes an Exemption Board, which may grant exemption from service to conscientious objectors, it is unclear whether this board may entertain applications from potential conscripts. Clause 64(2) empowers the board 'to hear applications by members of the Regular Force or the Reserve Force', but says nothing about people who are members of neither, but who may have been called up or 'mobilised'. Such people must have access to the Exemption Board before they become members of either the regular or reserve forces.


GENERAL CONCERN


8. We understand that this Bill seeks to provide a statutory basis for the implementation of defence policy, not to establish that policy itself. Nevertheless, we take this opportunity to express our concern over the current imbalance between the narrow, military needs of defence policy and the wider needs of our society.
   
   The position seems to be that the military defence needs of our country - as defined largely by the military - enjoy a high priority. We may mention the multi-billion Rand arms deal as one example, and the fact that defence spending has increased substantially in recent budgets.
   
   On the other hand, the needs of human security - health, housing, welfare and so on - seem to have a lower priority. This situation is particularly questionable when we realise that we have pressing poverty-related problems that pose a much more serious threat to peace and stability than any military threat from outside our borders.
   
   The Constitution itself recognises that national security is not simply about military priorities. Section 198 tells us that
   
   "National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life."
   
   Defence policy has so far not lived up to this broad vision of national security; rather, it has focused almost exclusively on one aspect, freedom from fear. And that fear is largely imaginary.
   
   The Defence Bill currently before the Committee is a very sound piece of legislation. We have identified very few areas of concern, and some of them are minor. But the Bill does nothing to advance the constitutional vision noted above. The challenge to this Committee is to find ways of promoting true national security, as defined by the Constitution, not just narrow military security as defined by current defence policy.
   
   Appendix 2:
   SUBMISSION ON THE SOUTH AFRICAN DEFENCE BILL
   Guy Lamb [Guy Lamb is a Senior Researcher with CCR, and manages the Centre's Project on Peace and Security. Laurie Nathan, CCR's Executive Director is one of the drafters of the Defence Bill.]
   20 May 2002
   
   The Centre for Conflict Resolution (CCR) views the current Defence Bill in a positive light, as finally South Africans have defence legislation that is consistent with democracy and the Constitution. In particular, this Defence Bill promotes civilian oversight and control of the armed forces, makes sexism and racism within the Department of Defence a punishable offence, makes provision for conscientious objection and does not give the South African National Defence Force (SANDF) full policing powers when they are deployed in an internal policing role.

Hence, in principle, CCR supports the Bill in its current form, but has a number of concerns, which are outlined below.

Chapter 1: Introductionary Provisions

Section 3 (2) states that "in the event of any inconsistency between the Act and any other legislation in force at the commencement of this Act other than the Constitution and the Public Finance Management Act (Act No. 1 of 1999), this Act prevails.

CCR contends that this presents a problematic state of affairs, as how can it be possible that the Defence Act will prevail over other important legislation such as the Criminal Procedure Act, the Promotion of Access to Information Act, and the State of Emergency Act (to name but a few) should an inconsistency emerge?

Chapter 3: Employment and Use of Defence Force

According to the Defence White Paper (1996, Chapter 4, p.19) and the Defence Review (1998), the SANDF will participate in international peace support operations. However, the current Defence Bill makes no direct provisions for peace support operations.

As members of the SANDF are increasingly becoming involved in peace support operations, CCR would like to see the introduction of a clause under Section 18 that deals with the oversight, scope, nature and extent of the SANDF's role in peace support operations. Namely, is parliamentary approval required? Under what circumstances will SANDF members be deployed in peace support operations? What conditions or precautions need to be considered before a peace support operation is approved?

Guidance in this regard can be found in the Defence White Paper (1996, Chapter 4, p.19) and the draft White Paper on Peace Support Operations.

Chapter 10: Training

Civic Education
The Defence White Paper (1996, Chapter 2, p.10) makes the provision for "the design and implementation of a civic education programme on Defence and Democracy." The objective of this programme is "to instil respect amongst military personnel and other members of the DoD for the core values of a democratic South Africa through appropriate education and training. These values derive principally from the Constitution. They include respect for human rights, rights and duties of soldiers, the rule of law, international law, non-partisanship, non-discrimination, and civil supremacy over the armed forces."

The current Defence Bill makes no direct reference to the civic education programme, other than Section 62 (2), which states: "The Minister must ensure that the training of members and employees of the Department promotes the objectives of, and is in accordance with, the Constitution and the law, including international customary law and international agreements binding on the Republic."

CCR would like to see a specific reference to the civic education programme, and its objectives, included in Section 62 (2). The reason for this is that civic education for members of the armed forces is a very important instrument for ensuring sustainable civil supremacy over the military.

Military Ombudsperson

The Defence White Paper (1996, Chapter 2, p.8) calls for the establishment of an independent Military Ombudsperson whose main duties would be "to monitor adherence to democratic civil-military relations, undertake investigations at the request of Parliament, and investigate complaints against the SANDF by military personnel and members of the public." The Defence White Paper further states that the powers and functions of the Military Ombudsperson would be spelt out in legislation.

The current Defence Bill makes no reference to the Military Ombudsperson, nor has legislation been formulated in this regard.

CCR would like the Defence Committee to consider adding a section to the Defence Bill that acknowledges the existence of the Military Ombudsperson, and legislates for the provision of the necessary resources in order for the Military Ombudsperson to fulfil his/her duties effectively.

Schedule

According to the Schedule of Laws Repealed (Section 102), sections 108, 109, 111, 112 and the First Schedule of the Defence Act No. 44 of 1957 will not be repealed. These sections deal primarily with the system of military justice and the Military Discipline Code.

The retention of these sections is problematic as they include a number of unconstitutional provisions (e.g. death penalty) and many of these sections have been effectively replaced with the establishment of the Military Disciplinary Supplementary Measures Act (No. 16 of 1999).