CONSTITUTIONAL PROVISIONS
1. The Constitution outlines the principles, structures, responsibilities and relationships which are necessary to secure democratic civil-military relations. Civil-military relations refer to the hierarchy of authority between the Executive, Parliament and the armed forces, and to civil supremacy over these forces.
2. The Constitution contains the following provisions in this regard:
2.1 The President shall be the Commander-in-Chief of the SANDF [Section 82(4)(a)].
2.2 The President may, with the approval of Parliament, declare a state of national defence [Section 82(4)(b)(i)].
2.3 The President may employ the SANDF in accordance with its functions and subject to the accountability outlined below [Section 82(4)(b)(ii)].
2.4 The President shall immediately inform Parliament of the reasons for the employment of the SANDF where this relates to the defence of the Republic, compliance with international obligations or the maintenance of internal law and order [Section 228(4)(a)].
2.5 Parliament may resolve to terminate such employment [Section 228(5)].
2.6 The President shall appoint the Chief of the SANDF [Section 225].
2.7 The Chief of the SANDF shall exercise military executive command of that force subject to the directions of the Minister of Defence and, during a state of national defence, the President [Section 225].
2.8 The establishment, organisation, training, conditions of service and other matters concerning the regular force and the part-time force shall be as provided for by an Act of Parliament [Sections 226(2) and 226(3)].
2.9 The Minister of Defence shall be accountable to Parliament for the SANDF [Section 228(1)].
2.10 Parliament shall annually approve the defence budget [Section 228(2)].
2.11 A joint standing committee on defence shall be established in Parliament. The committee shall be competent to investigate and make recommendations on the budget, functioning, organisation, armaments, policy, morale and state of preparedness of the SANDF, and to perform such other functions related to parliamentary supervision of the force as may be prescribed by law [Sections 228(3)(a) and (d)].
2.12 The SANDF shall perform its functions and exercise its powers solely in the national interest by i) upholding the Constitution; ii) providing for the defence of the Republic; and iii) ensuring the protection of the inhabitants of the Republic [Section 227(2)(a)].
2.13 The SANDF shall perform its functions and exercise its powers under the directions of the government and in accordance with the Constitution and any law [Sections 227(2)(a) and (b)].
2.14 The SANDF shall conform to international law on armed conflict which is binding on South Africa [Sections 227(2)(d) and (e)].
2.15 The SANDF shall refrain from furthering or prejudicing party-political interests, and no member of the regular force shall hold office in any political party or organisation [Sections 227(2)(c) and 226(6)].
AUTHORITY AND POWERS
3. The Constitution outlines a clear hierarchy of authority on defence matters: the Chief of the SANDF enjoys executive military command of the armed forces; this command is exercised under the direction of the Minister of Defence in times of peace and under the direction of the President during a state of national defence; and the Minister is in turn accountable to Parliament and Cabinet for the SANDF.
4. Parliament has a range of significant powers regarding military affairs in order to assert democratic control over the armed forces and defence policy. It has legislative powers, it approves the defence budget, and it reviews the President's decisions to deploy the SANDF in critical functions. The Joint Standing Committee on Defence has powers of investigation and recommendation and such functions relating to parliamentary supervision as may be prescribed by law. The Joint Standing Committee on Intelligence has oversight powers in respect of defence intelligence.
5. The DOD respects the right and duty of Parliament to exercise independent and critical judgement on defence policy and practice.
6. The fulfilment of Parliament's responsibilities requires the building of a close and co-operative relationship between the DOD and the parliamentary committees. The DOD will provide whatever assistance, information and comments are required by the committees in order to perform their functions.
7. Parliamentary and public scrutiny and debate will only be meaningful if there is sufficient transparency on military matters. A measure of secrecy will undoubtedly be necessary in order to safeguard national security interests, the lives of military personnel and the integrity of military operations. However, the governing constitutional principle is `freedom of information'. Exceptions to this principle will be limited, specific and justifiable in a democratic society, and will be dealt with in legislation.
8. The DOD recognises that it has a positive duty to provide sufficient information to ensure adequate parliamentary and public scrutiny and debate on defence matters.
9. The DOD supports the creation of the post of Military Ombudsperson whose main duties are 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 ombudsperson would be an independent official who is appointed by, and reports to, Parliament. The powers and functions of the ombudsperson would be spelt out in legislation.
10. The personnel, logistics and financial functions of the SANDF are closely regulated and subject to independent audit on a continuous basis.
11. The DOD will establish mechanisms to facilitate communication and liaison between the SANDF and provincial and local authorities with regard to the internal deployment of troops. However, these authorities will have no decision-making powers over such deployment. Command and control over the SANDF will remain centralised at national level.
DEFENCE INTELLIGENCE
12. The principles of civil-military relations have special relevance to defence intelligence. The intelligence legislation which has been promulgated and the RSA Intelligence White Paper provide for an ethical code of conduct, parliamentary oversight and executive control in respect of all intelligence agencies.
13. Defence intelligence structures are also subject to the scrutiny of the Inspector General of the SANDF and the various mechanisms provided for in the new intelligence legislation. These mechanisms include the National Intelligence Co-ordinating Committee (NICOC), the parliamentary Joint Standing Committee on Intelligence, and an Inspector-General responsible for defence intelligence.
14. The Ministry will ensure that a fair and acceptable balance is reached between the need to protect sensitive information and the demands for freedom of information in respect of intelligence activities.
15. The main functions of the Intelligence Division of the SANDF are the conduct of military intelligence and counter-intelligence, and the gathering of external military information. The primary aim of the latter function is to provide the SANDF with advance warning of potential military threats and instability, and thereby with maximum time for defence preparation. An effective intelligence capability is essential as a force multiplier and to ensure that force levels are kept to the lowest level in times of peace. Intelligence is also the basis of all defence planning and the conduct of all operations.
16. Intelligence liaison and the sharing of intelligence with other states will be undertaken in accordance with guidelines issued by the Minister of Defence, in consultation with the Department of Foreign Affairs, and in co-operation with NICOC.
17. The National Strategic Intelligence Act provides that where the SANDF is deployed internally, the Intelligence Division may only gather domestic military intelligence in a covert manner with the authorisation of the Chairperson of NICOC acting with the concurrence of NICOC and Cabinet. Such covert collection shall be limited to the geographical area and time-scales specified in the authorisation.
18. Defence Intelligence structures shall not initiate or participate in any operations of a non-intelligence nature.
THE DEPARTMENT OF DEFENCE
19. During the apartheid era the Department of Defence was militarised, with most of its functions being performed by Defence Headquarters. In the interests of entrenching democratic civil-military relations, the Defence Amendment Act of 1995 provides for a restructured Department of Defence which comprises the SANDF and a civilian Defence Secretariat.
20. The Minister of Defence is responsible for the Defence function of government and is accountable to the President, the Cabinet and Parliament for the management and execution of this function. The Minister constitutes the civilian authority on military matters on behalf of Cabinet.
21. The Minister directs and controls performance of the defence function through, inter alia, the statutory Council on Defence. The Chief of the SANDF and the Secretary for Defence serve on this body. They have equal status under the Minister, and serve as co-chairpersons of the Defence Staff Council which tenders advice to the Minister.
22. The respective statutory powers and functions of the Chief of the SANDF and the Secretary for Defence are governed by the Defence Amendment Act of 1995.
23. The Secretary for Defence manages the Secretariat and will be the accounting officer of the DOD. He/she is the principal advisor to the Minister regarding defence policy and matters which may be investigated by the Joint Standing Committee on Defence.
24. The Secretary will perform such duties and functions as may be necessary for democratic and civilian management of the defence function and to enhance parliamentary and Ministerial control over the SANDF. The Secretary will monitor compliance with directions issued to the Chief of the SANDF by the President or the Minister.
25. The Chief of the SANDF executes defence policy, directs the work of Defence Headquarters and manages the overall functioning and operations of the Defence Force. He/she is the principal adviser to the Minister on military, operational and administrative matters within his/her competence.
26. In determining the respective functions of the Secretariat and Defence Headquarters, there are two basic guidelines. First, civilians formulate defence policy and the military executes this policy. Second, civilians are responsible for the political dimensions of defence. This breakdown does not prevent military officers from contributing to policy formulation on the basis of their functional expertise.
27. It is intended that a large number of posts, of which the greater number will be in the Financial Section, will be transferred from Defence Headquarters to the Secretariat.
28. The Minister aims to staff these posts predominantly with civilians. The composition of the Secretariat will be broadly representative of the racial and gender composition of South African society. This will be achieved through selective recruitment, accelerated training, civilianisation of present incumbents and lateral entry. Senior military officers are not precluded from being seconded to work in the Secretariat on the basis of their functional expertise.
MILITARY PROFESSIONALISM
29. Stable civil-military relations depend to a great extent on the professionalism of the armed forces. The challenge is to define and promote an approach to military professionalism which is consistent with democracy, the Constitution and international standards.
30. More specifically, the professionalism required of the regular and part-time components of the SANDF includes the following political, ethical and organisational features:
30.1 Acceptance by military personnel of the principle of civil supremacy over the armed forces, and adherence to this principle.
30.2 The maintenance of technical, managerial and organisational skills and resources which enable the armed forces to perform their primary and secondary functions efficiently and effectively.
30.3 Strict adherence to the Constitution, national legislation and international law and treaties.
30.4 Respect for the democratic political process, human rights and cultural diversity.
30.5 The operation of the Defence Force according to established policies, procedures and rules in times of war and peace.
30.6 A commitment to public service, chiefly in defence of the state and its citizens.
30.7 Non-partisanship in relation to party politics.
30.8 The building of a South African military ethic based on international standards of officership, loyalty and pride in the organisation. This will serve as a basic unifying force which transcends cultural, racial and other potentially divisive factors.
EDUCATION AND TRAINING
31. Education and training programmes within the SANDF are a cardinal means of building and maintaining a high level of professionalism. In this regard the Constitution provides that all members of the SANDF "shall be properly trained in order to comply with international standards of competency" [Section 226 (5)].
32. At the heart of training is the preparation of officers and other ranks to fulfil the SANDF's primary function of defence against external military aggression.
33. In addition, special education and training programmes are required to standardise procedures following the integration of the statutory and non-statutory forces; to facilitate an equal opportunity programme and upgrade the skills of black soldiers, women soldiers and other disadvantaged service personnel [Chapter 6]; and to meet the particular needs of an all-volunteer force [Chapter 6].
34. Specific training programmes will be introduced to prepare military personnel for regional security co-operation and involvement in international peace support operations [Chapter 5].
35. Education and training will also play an essential role in developing the political and ethical dimensions of military professionalism. To this end, the Minister will oversee the design and implementation of a civic education programme on `defence in a democracy'. The Minister has established a work group for this purpose. The work group includes civilian experts and members of the SANDF, the Defence Secretariat and the Joint Standing Committee on Defence.
36. The mission of the civic education programme is to instill 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, the rights and duties of soldiers, the rule of law, international law, non-partisanship, non-discrimination, and civil supremacy over the armed forces.
37. The programme will cover the following subjects: the key elements of the political process in a democracy; the constitutional provisions on fundamental rights and defence; the significance of the Constitution as supreme law; the principles of democratic civil-military relations; international law on armed conflict; respect for multi-cultural diversity and gender equality; and the normative dimensions of military professionalism.
38. This programme will extend to all members of the DOD but will necessarily be tailored according to function and rank. It will encompass short-term orientation courses; adapting the development programmes of Officers, Warrant Officers and other ranks; and reorientating tertiary level education and the Military Academy.
39. The civic education programme will be integrated into all aspects of education and training rather than be treated as an isolated subject. It will be applied to the military context through lectures, simulated exercises and case studies. Civic education will also be regarded as a process which entails the translation of taught values into lived values.
40. The Minister recognises that the programme will have no value if misconduct is in any way sanctioned by the military or civilian authority. The institutional culture of the SANDF will only be imbued with respect for human rights and the rule of law if its members are subject to disciplinary action in the event of abuses.
41. The SANDF, together with the International Committee of the Red Cross, is currently developing a comprehensive curriculum on international humanitarian law and international law on armed conflict.
RESPONSIBILITIES OF GOVERNMENT
42. South Africa's Constitution, as with other democratic constitutions, seeks to establish stable civil-military relations by subjecting the SANDF to the control of the elected civilian authority. Such control is deemed vital because armed forces typically have a substantial capacity for organised violence.
43. However, the government recognises that civil-military relations will only be stable if the requisite control is accompanied by the fulfilment of certain responsibilities towards the SANDF and its members. These responsibilities include the following:
43.1 The government will not misuse the SANDF for partisan or repressive purposes.
43.2 The government will not interfere in the military chain of command, the application of the Military Disciplinary Code, or operational matters which are the authority of military commanders. The Chief of the SANDF shall supervise and exercise control over operations and preparations for operations subject to the relevant laws, national policy, parliamentary oversight and the directions of the Minister and/or the President.
43.3 The government will take account of the professional views of senior officers in the process of policy formulation and decision-making on defence. This input is assured through the Defence Staff Council, the Council on Defence and the structure of the DOD.
43.4 The government will request from Parliament sufficient funds to enable the SANDF to perform its tasks effectively and efficiently.
43.5 The government will seek to ensure that military personnel are adequately remunerated. It will also ensure that demobilised and rationalised soldiers, as well as veterans from the former statutory and non-statutory forces, are properly integrated into civilian society. The Chairperson of the Council of Military Veterans' Organisations serves as the Minister's adviser on military veterans affairs. A directorate for military veterans affairs will be established within the Defence Secretariat.
43.6 The government will not endanger the lives of military personnel through improper deployment or the provision of inadequate or inferior weapons and equipment.
43.7 The government shall make every effort to secure the safe release of military personnel who are captured in the course of official duty by enemy forces.
RIGHTS AND DUTIES OF MILITARY PERSONNEL
44. Members of the SANDF are citizens and therefore enjoy the same fundamental rights as civilians. Certain exceptions to this principle will be necessary because of the unique nature of armed forces and military service. The exceptions will be limited and specific, and will be covered in defence legislation.
45. The exceptions will also be subject to the constitutional provisions on limitation of fundamental rights. Such limitations are only permissible if they are reasonable, justifiable in an open and democratic society, and do not negate the essential content of the right in question.
46. Military personnel are entitled to vote and to be members of the political party of their choice. However, as noted above, the Constitution provides that no member of the Regular Force shall hold office in any political party or political organisation.
47. Military personnel shall not attend political meetings in uniform save where they are on official duty.
48. The Constitution provides that a member of the SANDF "shall be obliged to comply with all lawful orders but shall be entitled to refuse to execute any order if the execution of such order would constitute an offence or would breach international law on armed conflict binding on the Republic" [Section 226(7)]. Military personnel shall be obliged to report unlawful orders and actions to an appropriate military authority.
49. The constitutional provision stated above will be applied strictly and its implications for military operations will be conveyed to all officers, warrant-officers and other ranks in the course of their training and education.
50. In accordance with the Constitution, the SANDF shall promote freedom of religion and shall cater for the different religious views of its members on an inter-denominational basis. Religious observances shall be conducted on an equitable basis, and attendance at such observances shall be free and voluntary. The Chaplains Service shall regulate religious policy and practice in accordance with departmental policy and in consultation with the Religious Advisory Boards which represent different faiths.
51. The SANDF shall respect the constitutional provision on language and shall endeavour to cater for the different languages of its members. Instruction, command and control shall be conducted in a language that is commonly understood by all.
52. In accordance with the Constitution, the SANDF shall not discriminate against any of its members on the grounds of sexual orientation.
53. The Minister shall appoint a work group to facilitate and monitor the implementation of the policy outlined above regarding religion, language and sexual orientation.
54. The Military Disciplinary Code is currently being revised to bring it into line with the Constitution. The unique requirements of the military justice system will be taken into account.
RELATIONS WITH CIVIL SOCIETY
55. The SANDF shall conduct itself with honour and dignity, and shall abide by the provisions of the Bill of Fundamental Rights, in its interaction with civil society. Military personnel shall treat civilians with courtesy and respect in the performance of their duties.
56. The Minister and the DOD shall consult with interest groups and stakeholders in civil society in the formulation of defence policy, and shall provide the public with adequate information on defence matters.
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