|
The Road to Mutual Trust:
The Office of an Ombudsman on Defence
HISTORIC REASON FOR PARLIAMENTARY CONTROL OF ARMED FORCES
Historically military forces were raised, trained and equipped by the sovereign of the state in order to defend the nation from external enemies. When the sovereign came to be replaced by parliament and its institutions, parliament had to decide on the resources which served the purpose of defence. But having obtained military forces, the government (as distinct from parliament) was also able to use these forces to capture and destroy the parliament. Equally, individual military commanders could abuse their authority to turn the forces against the government and parliament and thus seize power.
Young democratic states obviously suffer more readily from these problems than do countries such as Britain with its established tradition of parliamentary accountability. As a result the establishment of effective parliamentary control institutions over the military is the subject of considerable debate, particularly in developing countries where military intervention in politics have occurred so often.
The essence of democracy, it could be remarked, is to limit the power of the central executive on the one hand, and of military commanders on the other. The challenge is to ensure that the armed forces serving the nation only fulfil their intended purpose. Various mechanisms are used for this purpose. Those most common to parliamentary democracies are:
- by means of a detailed and open defence budget passed and discussed by parliament itself;
- by a multi-party defence committee of parliament which controls defence policy, strategy and procurement;
- in some democracies, by a Commissioner or Military Ombudsman of the parliament to safeguard the individual rights of servicemen and to observe the correlation of the concept of the defence force with the democratic and constitutional value system; and
- by the institution of an appropriate Code of Conduct which forms part of educational and leadership training courses throughout the military.
These parliamentary control functions do not replace the normal legal control exercised by the government of the day nor the normal command and control measures of the armed forces. They recognise, however that young democracies are particularly vulnerable to authoritarian, centralised executive state organs.
This article will examine only one of these institutions, namely that of an ombudsman for the defence force.
THE ROLE OF AN OMBUDSMAN
In a recently compiled paper of the Centre for Intergroup Studies in Cape Town (Nathan, 1991; 1) the office of an ombudsman was described as follows:
- The Ombudsperson is an independent officer of parliament who investigates complaints from citizens that they have been unfairly dealt with by government departments/officials and who, if the complaint is deemed justified, seeks a remedy.
- The underlying principle is that of ‘constitutionalism’, which seeks to preserve the liberties of citizens against the arbitrary and capricious authority of the state with its monopoly of force and extraordinary powers.
- The system is essentially a device for controlling bureaucracy and providing a means of redress to aggrieved citizens.
- The office of the ombudsman is normally established in terms of the constitution; the official is normally appointed by, and answerable to, parliament.
According to the recent Report on Constitutional Models by the South African Law Commission, the International Bar Association defined the institution of the ombudsman as follows during 1974 (SA Law Commission, Vol. 3; 1222):
An office provided for by the constitution or by action of the legislature or parliament and headed by an independent high - level public official, who is responsible to the legislature or parliament, who receives complaints from aggrieved persons against government agencies, officials and employees or who acts on his own motion, and who has the power to investigate, recommend corrective action and issue reports.
AN OMBUDSMAN ON DEFENCE
In democratic states, there is a general consensus that the armed forces, as part of the executive power, should be subjected to particularly strict political, ministerial and parliamentary control. In order to create the mutual trust and confidence of the public in their armed forces some democracies (Sweden, Finland, Norway, Germany) considered it necessary to establish the institution of a ‘Commissioner of the Parliament’ or ‘Military Ombudsman’, who deals exclusively with the armed forces.
The office is created for the following purposes:
- as one means of ensuring civil supremacy and control over the armed forces;
- to prevent public mistrust of the military administration and to eliminate such mistrust if it arises;
- to act as a legal safeguard by providing an independent, impartial and judicially qualified body to whom an aggrieved citizen or soldier can apply;
- to contribute to public confidence by ensuring that the rule of law prevails within the military forces;
- to give military officers an additional reason for the scrupulous discharge of their duties;
- to provide protection to conscripts, whose rights as citizens are curtailed when undergoing military service; and
- to provide additional supervision over military expenditure, which makes up a significant part of the state budget.
In short, the institution serves to safeguard the individual and human rights of the soldier in accordance with the democratic value system which the armed forces are sworn to protect, thereby preventing any abuse or misuse of the strict command and disciplinary powers of military authority. It ensures that the military doctrine of the armed forces is executed in accordance with the appropriate leadership principles, training and education. (Federal Ministry of Defence; 300)
An ombudsman for the military should obviously not play any role with regard to the control of military operations. His task revolves around ensuring compliance with the code of conduct of the defence force or value system from which the armed forces derive their legitimacy.
In accordance with his legal mandate, the ombudsman takes action whenever circumstances indicate an infringement of the soldier’s basic rights or the principles of the concept of a defence force serving a democratic constitution. To this end he may react upon:
- information provided by the media;
- information provided by a member of the armed forces, however such information may not be supplied anonymously;
- information gained during his own inspections; and
- request of the authorities within the framework of the ministry of defence.
As an institution of parliament, the ombudsman can also be tasked by parliament or the parliamentary committee on defence to assist in certain control functions or to investigate cases within his mandate.
To ensure his impartially such a post is commonly instituted in terms of the constitution itself and passed as separate legislation by parliament which defines its competence and powers. As a result the military ombudsman is accountable to parliament and not to the government nor to the Ministry of Defence, nor is it instituted in terms of the defence act.
The selection of the ombudsman is typically by simple majority or a two thirds majority vote of parliament. To execute his task the military ombudsman should have the right to visit any unit or installation of the armed forces without prior notice. He should be able to communicate with every member of the forces and have the right to request any information, record or file which may be of assistance in his investigation.
Since the ombudsman is only accountable to parliament he reports or makes recommendations and suggestions to that body with copies to the ministry of defence and, if appropriate, the complainant concerned. Although he may refer or recommend that matters be referred for prosecution or other corrective measures, he should not be able to initiate disciplinary action or other corrective actions directly, thus interfering in the normal chain of command. Such decision should be left to the military authorities concerned, who may or may not follow his recommendations. Whatever their response, the military must, however, report their reaction to the ombudsman who could again refer the matter to the parliamentary committee on defence, in the case of a fundamental disagreement. All his reports, recommendations and suggestions must be made public.
An important task of such an ombudsman is normally to compile and table an annual report to parliament which serves as an indication of the state of discipline and morale of the armed forces. As such his suggestions and recommendations may have a direct impact on the training, education and leadership of the military. This report also serves as early warning of discontent and possible revolt.
Though the ombudsman is first and foremost a parliamentary control measure, his activities should essentially be in support of the armed forces. He acts in the broader interests of the military themselves, assisting them in upholding a high standard of morale and leadership as well as enhancing their combat readiness and ensuring their loyalty towards the democratic state.
Purely on the surface, there would appear to be many advantages in instituting such a system in South Africa as a further guarantee against the misuse of military capabilities in the future.
THE SOUTH AFRICAN SITUATION
In South Africa, the post of the Advocate General was created in 1979 and mandated to exercise control over the misuse of public monies. Recently this post has also come to be seen to address the needs for an ombudsman system as discussed above. Consequently, in terms of the most recent amendment act (Act 104 of 1991) promulgated on 22 November 1991 the title of Advocate General was replaced with that of Ombudsman. However, this change in title does not imply that the problem has been dealt with satisfactorily, as is evident by the feeling of the Association of Law Societies in their representation on the amendment bill (SA Law Commission, Vol. 3; 1260): ... [that] ‘certain cardinal defects, which were present from the outset are unfortunately not removed or rectified by evolutionary legislation’.
The South African Law Commission states the following in their Report on Constitutional Models (Vol. 3; 1263):
It is significant that no provision whatsoever was made in the Bill for the protection of human rights, which, ... is one of the recognised modern functions of an ombudsman. There is an urgent need for society to be protected against the administrative function of the state, justifies the institution of a "strong" ombudsman, who, unlike the Advocate General, will have extensive powers with regard to the issuing of summonses, subpoenas, search warrants and powers of seizure, as well as powers of redress.
The Report concludes that the amendment act:
... did not bring the powers of the Ombudsman into line with the internationally recognised standards.
Nevertheless the amendment was passed by Parliament in June 1991 and could theoretically provide for the appointment of a military ombudsman as one of the assistants to the ombudsman. Ideally any such appointment should occur in tandem with a comprehensive revision of the act in its entirety.
CONCLUSION
The major fear amongst military leadership is often that the institution of full parliamentary control, particularly that of an ombudsman and the attention that such a post would pay to the protection of the individual rights of the soldier will undermine his preparedness to execute orders. Ultimately, this would lead to a collapse in military discipline and the will to fight. In a divided society such as South Africa, in which the requirement for confidence building mechanisms during and after settlement in the form of checks and balances probably transcend all other requirements, such fears are legitimate, but misplace. It would rather appear to the advantage even of the existing military leadership that the conduct of the individual soldier should be clearly defined within the Military Disciplinary Code and national law. The powers and limitations of command and obedience and the acceptance of responsibility of the soldier for his actions should be codified, as is the case in most Western armed forces.
In future the military forces of South Africa will of necessity be considerably smaller, but more flexible and mobile than in the past (see the article by Cilliers in this issue). It will be necessary to retain and maintain the ability to build up military strength, if ever that should become necessary. To solve this problem will, however, only be possible after political and military leaders find agree on a concept which confirms the principle of the primacy of politics over the military at all times.
This does not necessarily imply an a-political defence force as is sometimes argued. A democracy requires the integration of its armed forces, not their isolation. In essence, it means equitable and effective parliamentary control of military forces and an appropriate military culture.
It is perhaps of interest to recognise, that the Allied Forces in the Gulf War were subjected to strict institutionalised parliamentary control, which did not limit or restrict the combat performance of the soldier. The rigid command and military doctrine principles followed by the forces of Iraq, adapted from the former Soviet model, were, in contrast, directly responsible for the abysmal conduct of that army and the collapse in morale and leadership that it suffered during battle.
It is essential that the basis for appropriate parliamentary control institutions in a post-settlement South Africa are established during the transition period in support of the negotiation process. Parliamentary control should be firmly incorporated in any new concept for the armed forces. Part of such a concept should include a code of conduct and the institution of a military ombudsman. However, without a clear concept all efforts of the present administration and of the negotiating body remains a piecemeal approach to an interrelated problem.
BIBLIOGRAPHY
SA Law Commission. 1991. Report on Constitutional Models, Vol. 3.
L Nathan. 1992. Notes on the Military Ombudsperson, Centre for Intergroup Studies.
Federal Ministry of Defence. June 1985. White Paper 1985.
|
|
|