ESTABLISHMENT OF THE SOUTH AFRICAN MILITARY OBUDSMAN [MO] PRESENTATION BY: Advocate Boitumelo Mmusinyane & Professor Moses Montesh Venue: Parliament-Committee of Defence & Military Veterans Date: 17 August 2011

Introduction Our submissions mainly influenced by the comparative analysis we undertook in an endeavour to compare and contrast the incumbent SA MO with the existing ones around the globe, and those with no such MO but institutions established to oversee the military administration Objective-being to ensure the South African MO becomes an embodiment of almost each of them and makes it unique yet serving comprehensively the socio-economic and political needs of its diverse military personnel. This has been fully addressed on the Addendum to the Submissions While comments related to specific provisions of the Military Ombudsman Bill-dealt with on the Main Submissions. Establishment of MO-long overdue

Background Generally an ombudsman-institution: -exercises oversight over the public administration -helps to ensure that the latter observes the principles and Good Governance practices (GGP) by dealing with complaints from the public regarding decisions, actions, or omissions of the public administration. Focus-establishment of the Military Ombudsman-recognition-special nature of employment relationship-exist btwn the Defence Force personnel & their employer-extend to their families. Presentation highlights existing approaches-functioning of the MO world wide, its advantages and how SA should approach the establishment of such an important watch dog mechanism for its military.

WHAT IS MILITARY OBUDSMAN (MO)? Independent institution from the military command structure-exercise oversight to the defence sector. Ensures observance by the defence sector to the GGP & principles. Addresses complaints-improper & abusive behaviour-within the military, shortcomings in military procedures & formulates recommendations- corrective actions However MO-does not make policy/decisions on operational matters. Immediate purpose of the MO-redress grievances & encourage proper conduct of and within the defence sector. Broader role of the MO-enhance defence sector’s efficiency & effectiveness by making it accountable & responsive to its constituencies.

Rationale-Est. MO Proven that despite existing internal complaints resolution procedures within, the military personnel still view such process not adequate to fully serve their challenges. MO-est-for redressing complaints regarding improper & abusive behaviour, shortcomings in the military policies also systematic [deep rooted] problems. MO-formulates corrective measures through its recommendations: Thus value of an Independent MO- (1) Increases Trust within Military sector-creating transparency- administrative process without compromising the authority of the military chain of command. (2) enhances democratic and civilian control-reinforces GGP, rule of law & human rights. (3) avail essential protection to military personnel against violations of their rights, abuse of power/unfair administrative actions. (4) assist military commanders-achieve internal changes & transforms the internal functioning of the defence sector. (5) its operation-great impact on military personnel, their morale & even likely to contribute to their retention.

Military Oversight Generally acknowledged-every organisation-problems, challenges- the Military-not immune due to its special nature & daunting powers over their members. Military personnel-undertake work-physically & mentally demanding- resulting in ordinate stress-likely to affect them and even interfere with effectiveness of military institutions-dependent on positive morale. Problems & challenges-acute-”Military culture”-traditions of blind unquestioning obedience, closed access to information & highly regimented command structure-relies on layers of fixed orders and directives. This creates-bureaucratisation unparalleled in civilian life Officers-given this responsibility-acquire an understandable enthusiasm to do their job well. But some-becomes single minded, selective application of same rules to personnel differently. In certain instances certain Units within the military becomes resistant to change.

Military Oversight cont.. Examples: Entitlement of military houses in certain Units-only for married personnel or if a personnel-having a child, while customary marriages seems not recognised as proof of Lobola on its own is seen as insufficient for such a personnel to be given house (if available) and can only be accepted if parties have signed at the Court. Also common cause that some military personnel ended up taking their lives, colleagues due to certain decisions that are not questionable or not objectively dealt with. Pregnancy-termination of contract. Such matters need to be questioned and dealt with- corrective measures made- If not dealt with-likely to have a negative impact on the morale of staff.

Functioning of MO Therefore proper functioning of the MO-encompass 3 components: (1) Effectiveness-MO’s recommendations-followed (2) fairness-transparency of procedures (3) Independence from anyone including the Minister-crucial-robust & credible accountability of the Military Independence-achieved through statutory authority, operational independence & adequate staff Meaning either through a Constitution or a legislative Act Autonomous investigative capacity-core to the MO Provision of sufficient and qualified [expert] staff Independence also qualified-where its accountability lies...Parliament (Poland, Norway) While others accountable to the Min of Defence & to Parliament (Canada) Thus MO-never serve as an adviser, mouth piece to Ministers or to Parliament

Complainants Who should complain to MO? (a) Members of armed forces (b) Former members (c) Reserve members (d) Applicants (e) Or mentioned people’s partners/families who allege that they have been subjected to wrong or unfair treatment. However nothing should prevent any third party acting in the interest of any of the mentioned members from lodging a complaint on behalf of such a person. Even parliament has proven to be capable of referring complaints to the MO Mero motu investigations-forms an integral part of the MO (Canada, Germany, Finland Ireland). Such investigations important tool for MO to look into broader systematic issues within the defence sector

Types of Complaints Broad spectrum of official, personal & social problems experienced by Military personnel as a result of their every day military routines....from maladministration to violations of fundamental rights In addition to working conditions & entitlements of benefits, complaints also can include discrimination and harassment in the workplace, even systematic policy issues. Exhaustion of internal complaints procedures-core requirement for Ombudsman to investigate subject to certain exceptions as to be motivated. Caution not to be used as a first instance resolution body but only be involved once it can be proven that existing internal protocols failed to address the dispute at hand.

Conclusion Many countries around the world do not have a MO Risk thereof is that abuses & mistreatment of military personnel will go unpunished due to lack of confidence in internal disciplinary measures, fear of retaliation by military commanders. Thus protection of military personnel human rights is likely to be at risk Or a risk also seen as in SA where the Public Protector is responsible for investigating the military, there is either one or combination of reluctance, fear by members or lack of confidence in referring Military matters to an institution outside the military domains. We do acknowledge the uniqueness of the Defence Sector and support est. of its own Ombudsman from the PP.

What SA can learn from other countries In UK-established Service Complainants Commissioner-reporting to the Minister. However it lacks independence-under the control of Military hierarchy & likely to reduce legitimacy of complaints mechanisms. Also-refused an extension to permit it to deal with complaints from personnel concerning administrative matters Also Netherlands Problem with this UK & Netherlands approach-clearly the Military conduct oversight function on itself and likely undermine the confidence on MO recommendations. Challenges with utilising an ordinary Ombudsman mainly relate to lack of specialised knowledge in military matters and risks of leaking of confidential information relating to defence security matters.

Countries with MO Parliamentary Commissioner for the Armed forces in Germany Parliamentary Ombudsman for the Norwegian Armed forces 1952, Impartial and Independent-Min. of Defence & Military authorities Safeguards all rights of military personnel The Ombudsman for National Defence & Canadian Forces 1998 Independent-appointed by the Cabinet & reports to the Min. Of Defence Deals with complaints from personnel, their families, Min. Of Defence & can initiate its own investigations Also systematic investigations-Post Traumatic Stress Disorder Initiative Its annual reports-tabled in Parliament-by Min. & debated Recommendations made to the Min & if the Min’s response are unsatisfactory, the Ombudsman may issue a special report on the case.

Countries with MO Ombudsman for the Defence Forces of Ireland Ensure members, former members & reserve forces have rigorous, independent & fair appeal for complaints-not adequately addressed by internal protocols MO In addition to their specialised knowledge of military matters it is their credibility in the eyes of the complainant, parliament and the public. Only disadvantage-may be costly to establish it but worth it. MO-is an independent military oversight mechanism-advantage-devote-its attention exclusively to military matters Developing specialised knowledge in the field Ability to issue public reports strengthens Parliament’s oversight capacity and ensures greater transparency & accountability. Therefore SA need to draw inspirations not from one but from all of them in establishing their own effective, independent MO Caution-not to make the MO a mere toothless paper tiger. Reference is now made to specific contributions that the BILL needs to address