Justice delayed is justice denied

The panel at the Mail & Guardian and Military Ombud Symposium on May 13: Dr Michelle Nel, Lt-Gen Temba Matanzima, Professor Dirk Kotze and Helmoed Heitmann. (Photo: Paul Botes)

The panel at the Mail & Guardian and Military Ombud Symposium on May 13: Dr Michelle Nel, Lt-Gen Temba Matanzima, Professor Dirk Kotze and Helmoed Heitmann. (Photo: Paul Botes)

Four years ago, in an effort to improve the service conditions of military personnel and streamline the processes in grievance procedures within the South African National Defence Force (SANDF), the Office of the Military Ombud was established.

Speakers at the joint Mail & Guardian and Military Ombud symposium held at the Council for Scientific and Industrial Research (CSIR) on May 13 gave feedback on where the office had made an impact and presented an impressive track record of resolutions. The event was attended by top brass within both the military and members of the diplomatic corps, and was moderated by popular broadcast journalist Xolani Gwala.

“The government appreciates the patriotic inclination to participate in the defence of one’s country — to defend our democratic values is indeed a courageous act,” said keynote speaker, Lieutenant General (retired) Temba Templeton Matanzima, who heads the Office of the Military Ombud.

“The rigorous discipline involved in training and in armed combat, including the generous will to die for gains that are not for individual benefit, compels us to feel indebted to those who serve in our military. It is our moral obligation as a nation to treat with dignity all those citizens who give their lives to the cause of defending our democracy and people.”

Around 70 000 people are employed by the SANDF and while 90 days should be the turnaround time for a grievance process, the reality is that, although there is a process that benefits personnel, it can often take years to solve a problem.

There was also debate around the place the military occupies in society. Matanzima said: “The Constitutional Court has on more than one occasion asserted that members of the armed forces are citizens in uniform who must enjoy the same fundamental freedoms and rights, including those set out in the Bill of Rights, and the same protection of their rights and dignity as any other citizen, within the limits imposed by the specific exigencies of military duty.”

The question was raised as to whether or not a member of the defence force is actually an ordinary citizen, allowed to attend social and political rallies and public elections, in uniform or not. Certainly they also have rights under labour law. One of the ombud’s challenges is dealing with ordinary citizens and their relation to the military. Another role is handling insubordination issues within the SANDF.

Civil society

“We have come to the realisation that civil society constitutes a significant and strategic partner in our efforts to educate the nation about the role of this office in society,” continued Matanzima. “It is for this reason that the theme of this symposium — the relationship between the ombud institutions and civil society in democratic oversight of armed forces — is appropriate.

“Civil society is now recognised as an increasingly important agent for promoting good governance like transparency, effectiveness, openness, responsiveness and accountability.”

Matanzima said civil society can play a positive role in good governance through policy analysis and advocacy, regulation and monitoring of state performance and the action and behaviour of public officials, building social capital and enabling citizens to identify and articulate their values, beliefs, civic norms and democratic practices. Society can mobilise particular constituencies, particularly the vulnerable and marginalised, to participate more fully in public affairs and by development work to improve the wellbeing of their own and other communities.

“Owing partly to the inability of the state to meet citizen expectations in terms of service delivery, justice and good governance, civil society institutions around the world are increasingly wielding more power and influence, and assuming greater responsibility in areas traditionally considered the preserve of the state.

“The functions performed by ombudsmen around the world lend themselves readily to engagement with civil society to further the objectives of the ombud institution. It is my firm belief that the military community in South Africa, in particular the Office of the Military Ombud, like any other sector of our society, stands to benefit from these roles of civil society,” he concluded.

No currying of favour

“The role of this ombud is an unknown quantity, with a huge role to play in trying to develop critically thinking soldiers,” said Dr Michelle Nel, from the faculty of military science, Stellenbosch University, who opened the panel discussion. “We have young officers at the academy studying such aspects as ethics and law, and we need to look after them. They need to know there is a system for soldiers to feel safe. We do see concerns about careers and perceptions are very important — like the perception that they have nowhere to go. Research and education play a very important role.”

Author and ex-military reservist, Helmoed Heitman, said: “Soldiers are actually different to us. They are ready to tolerate crummy living conditions and put their lives on the line for the sake of their country.

“Having an ombud is important, but only as long as reports are properly tabled and the people appointed have no vested interest in currying favour. Members of the ombud entity could expand to recruiting doctors and chaplains to add credibility. Citizens can also play a role by drawing the attention of the ombud to, for example, the plight of former soldiers, and veterans and their families,” he said.

“If we see how the functions of the public protector’s office have evolved over the past 10 years, I see the same thing happening to this office, but it is important that its function is seen in the context of oversight,” said Professor Dirk Kotze, Unisa lecturer in the department of political sciences, specialising in South African politics and political conflict resolution.

“The ombud is not alone, but part of bigger, formal oversight authorities, including the defence secretariat and the auditor general.

“Social organisations have a right to know and the media plays a very important role, especially as our troops are deployed as peacekeepers in other countries, particularly [in] Africa, making international law and the international court relevant in the instance of soldiers committing war crimes.”

However, in his address Matanzima reminded that “Members of the armed forces cannot be expected to respect humanitarian law and human rights in their operations unless respect for human rights is guaranteed within the armed forces’ ranks.”

Closing the proceedings, Siviwe Njikela, chief director, operations  at the Office of the Military Ombud, stressed the importance of the balance of power between the individual and the SANDF. “Our mandate is broad enough to cover anything, including vested interests in tender contracts, but every solution reached is a legal one.”

The ombud: ensuring a moral military

The Office of the Military Ombud is the only entity of its kind in Africa. Its role is to gather facts and settle complaints, or make recommendations to resolve a complaint. It determines the legal route applicable to findings. The office is not a criminal commission, but an independent, impartial entity, which may not investigate any complaint unless all invested parties have been contacted in writing and given the opportunity to submit responses. Its budget is ring-fenced within the defence force. The appointment of its head and deputy is by the president, but this may change in the future to become a parliamentary responsibility. 

It enjoys interactive relationships with other offices in such countries as Switzerland, and it is an active member of the International Military Ombud Institutions family, under the umbrella of the International Conference of the Ombud Institution for the Armed Forces. It is regularly invited to present papers internationally.

The office has memorandums of understanding with local third parties with respect to collaborative efforts on investigation and case referral. These parties are the Government Employee Pension Fund, South African National Defence Force, South African Police Services, Public Protector South Africa and the Commission of Gender and Equality.