By Jane Duncan · 8 May 2012
Many South Africans are worried about the mounting evidence of abuse of security cluster resources, and rightly so, as it is a highly sensitive area of government that could easily be used against political opponents of the ruling elite. Without investigative journalists drawing on sources of information inside the cluster, these abuses may not have come to light.
Security cluster employees are often the first people to become aware of abuses, as they are close to the action and often have privileged access to information. If the security cluster is going to be held to account, then the freedom of expression of these very employees needs to be protected.
However, many of these sources may well dry up if the Protection of State Information Bill is passed into law unchanged, as the whistleblower protection in the Bill, as well as in the Protected Disclosures Act, is inadequate.
But the Bill is not the only threat to the free flow of information about the cluster. Recently, the South African National Editors' Forum (SANEF) expressed concern that the Minister of Defence is attempting to draw a cloak of secrecy over the operations of the state’s military, naval and air forces, by refusing to answer questions about the security of the President and Deputy President, on national security grounds.
But these are not the only problems in the South African National Defence Force (SANDF). The Ministry is also attempting to stamp out the few spaces for democratic accountability that exist within the military. If they get their way, then freedom of expression in the SANDF will be a thing of the past as employees will be prevented from expressing any views that are critical of the military leadership.
In April, the Ministry released a consultative draft of the 2012 Defence Review, compiled by a Review Committee of military experts headed by Roelf Meyer. The document will form the basis for public engagement on South Africa's new defence policy.
The Defence Review proposes the following: 'Defence members will not be free to enjoy peaceful and unarmed assembly, demonstration, picketing and petition, nor will they be free to join and participate in the activities of trade unions and other organisations'. The Review proposes that instead, soldiers’ grievances must be channelled through a Defence Service Commission, tasked with protecting the rights of defence members, as well as a Defence Ombud.
Details about the Commission are sketchy, but what is clear from the Review is that while it is meant to be independent, and reports to Parliament directly, it is appointed by the Minister, which nullifies its independence. Presumably, the Review panel assumed that the establishment of this body, tasked with handling the grievances of Defence Force members, will make unions and protests redundant.
In wanting to limit association and expression rights in the military, the Committee presumably wants to prevent a recurrence of the disastrous soldier's march on the Union Buildings in August 2009, which turned violent after a court ruling declared the march illegal.
At the time, Defence Minister Lindiwe Sisulu condemned the illegal march and ensuing violence, and called the events ‘a serious and immediate threat to national security’. Since then, both the African National Congress (ANC) and the Democratic Alliance (DA) have supported the de-unionisation of the military.
Not only are these attempts to deny full association and expression rights dangerously misguided, they are also unconstitutional. They are bound to exacerbate the already high levels of secrecy in the military, as military personnel will be unable to express themselves independently and collectively. In the process, a key component of the oversight system of the security cluster, namely the self-organisation of its employees, will cease to exist, and South Africa can ill-afford oversight of the security cluster to be weakened even further.
The rights of association and free expression in the military were simply too hard won to be tossed away so easily. In the dying days of apartheid in 1993, the former South African Defence Force (SADF) rushed through amendments to the Defence Act to forbid unions in the military. However, downsizing of military budgets coupled with discontent with declining working conditions forced the issue back onto the table.
In 1999, the South African National Defence Union (SANDU) petitioning the Constitutional Court to have that section of the Act declared unconstitutional. SANDU won the case, and with it recognition that military personnel have a right to organise into trade unions, and engage in acts of public protest.
As Constitutional Court judge Albie Sachs argued at the time, “…a blindly obedient soldier represents a greater threat to the Constitutional order and the peace of the realm, than one who regards him or herself as a citizen in uniform, sensitive to his or her responsibilities and rights under the Constitution”.
The Ministry has already hinted that it may consider pursuing a Constitutional amendment to disallow unions in the military: an amendment that may well be successful if it enjoys the backing of the two largest parties in Parliament.
But tinkering with the Constitution to limit fundamental rights is a dangerous course of action, as it could pave the way for internal critics to be silenced under the guise of maintaining military discipline. Furthermore, the danger of replacing unions with a government appointed body is that employees’ voices can be controlled, and even censored, much more easily. This in turn could lead to internal issues of considerable public interest, but which the Ministry may find embarrassing, failing to reach the public domain.
Unions provide an important safety valve for military personnel to speak in an unmediated voice. The Court gave soldiers the right to choose which vehicle to use to express themselves, and if they choose to be represented by a union, then it will be anti-democratic for the ANC and DA to stand in their way.
Furthermore, the denial of the right to protest can have one of two effects: it can discourage protest action or it can lead to its escalation. The latter is more likely to occur when attempts are made by the state to shut down legal avenues for protest, resulting in ‘injustice frames’ developing around the actions of the state. This may lead to precisely what the Ministry wants to avoid, namely instability, and possible mutiny, in the SANDF.
The events that occurred at the Union Buildings are contested, and still need to be canvassed properly. As a result, it is both premature and unwise to base such a drastic decision on this one incident.
SANDU has contended that the initial prohibition of the march was based on dubious grounds, and that the gathering turned violent after the police attacked the protestors who were attempting to disperse after having learned of the prohibition.
Most importantly, the gathering was a result of a slow build-up of frustration with the military leadership over working conditions, turning the military into a pressure cooker of discontent. Frustrations cannot be addressed by disallowing meaningful channels for their expression; instead they will fester, and eventually blow.
In a global context of declining budgets and military restructuring, military unions have provided a realistic view and high value information about problems on the ground. In South Africa, unions have played a crucial role in defending the labour rights of their members, and channelling grievances. They have won many court victories for their members.
However, they have been less prominent in shaping defence policy, and critiquing the role of the military in society. Nevertheless they have a crucial role to play in checking a tendency towards mandate creep, especially in relation to civilian policing.
For instance, the experiential knowledge of military personnel, channelled through independent unions, could prevent the military from being deployed inappropriately in civilian life, including the 'policing' of public protests: a trend that is already apparent, and if left unchecked could lead, dangerously, to the militarisation of society.
Tellingly, hints of militarisation are emerging at the same time that the police are being militarised, with the result that citizens risk being caught in a pincer movement of state violence from both institutions.
Glancing nervously North, the political elite may have become concerned about the implications of not having an army that is close to them, which may well lead to a political power grab of the SANDF. Albie Sachs’ thinking, feeling, citizen in uniform could stand in the way of any such attempt, so it is small wonder that such a soldier has become undesirable.
Disturbingly, but perhaps not surprisingly, the Minister and her seemingly 'independent' review committee concur that blindly obedient soldiers are the sine qua non of national security. Yet, if the broader, human security definition of national security is to be taken to heart - namely that South Africans have a right to live free from fear and want - then the blindly obedient soldier could become the biggest threat to national security of all.