National Defence Force Service Commission or a Military Ombudsman for the SANDF?
blurb:isstoday20Nov09
20 November 2009: National Defence Force Service Commission or a Military Ombudsman for the SANDF?
Colonel (Retd) Stephen van Neel – Senior Researcher Security Sector Governance Programme, ISS Pretoria Office
In September 2009, the South African Ministry of Defence established an interim National Defence Force Service Commission (NDFSC) against the backdrop of an outburst among soldiers at the Union Buildings in Pretoria on August 2009. Besides the embarrassment this incident brought onto the nation, this discontent exposed the failure of administrative processes in the military to address soldiers’ issues effectively. The immediate response by the Department of Defence (DOD) was to seek an alternative mechanism that could deal with grievances effectively in the military and render trade unions useless.
The mandate of the Commission is to review the current conditions of service of members of the South African National Defence Force (SANDF) and to work towards a new dispensation for the Defence Force. The Commission realised the role played by the trade unions over the years and interacted with the unions from the inception of the investigation. This ‘relationship only lasted for a few weeks when the commission was instructed by Defence Minister Lindiwe Sisulu not to investigate the forms of voluntarily association of the military, which simply means don’t entertain the unionisation of the military. Such a decision may undermine the independence of this Commission and can easily be regarded as bias towards the DOD even before it has completed its mandate. This is unacceptable. How do you ignore an actor who was and perhaps still is, an integral part of the system and who has recorded grievances over the years? Trade unions should be allowed to continue functioning, albeit only during the interim phase and one hopes that it would allow the DOD to establish alternative mechanisms.
Conceptually, it seems that the Commission will be a similar, parallel but separate arrangement to the already established Public Service Commission (PSC) in South Africa. The PSC in its current form is mandated to monitor whether a government department has complied with government prescripts, processes and procedures in handling grievances. The PSC does not have any enforcement mandate and it can therefore only make recommendations. If the NDFSC is to operate in the same way (all indications are that it will), then it is simply set up for failure because it will only address one part of the problem, the issue of grievances. When it comes to negotiating and bargaining on behalf of soldiers on matters relating to working conditions like remuneration, it is suggested that an additional mechanism that would represent employees in the Military Bargaining Council should be established. It is this loophole that has been exploited by trade unions in the armed forces.
The establishment of the NDFSC as a short term measure is laudable and will certainly be helpful, because it will address the immediate problem. However, it will simply not work as a permanent arrangement. This conclusion is based on the fact that the implementation of the PSC in the civil service does not prevent public servants (led by their respective unions) to strike and protest for better working conditions in the Public Service.
Trade unionism is part of South Africa’s military institutional landscape for two reasons. First, unionism is constitutionally permitted although soldiers have limited rights. The second reason is that trade unions were and perhaps still are seen as an alternative to inefficient and non-existing channels for addressing grievances. Trade unions have consolidated themselves and have been regarded as a ‘workable’ mechanism within the military establishment and as an option to bargain collectively on behalf of soldiers. Having said that, no professional military can afford to be dragged into a situation where trade unions are the one’s to be negotiated with. The conflictual nature of the relationship between the DOD and the unions is not conducive for a unique organisation like the military where, due to the nature of the organization, individual interests are sometimes subordinated to organizational and national interests. That is the price one pays for a career in the military. Strikes and protest marches goes totally against military culture and are unheard of in any professional defence force.
Against this background, there is absolutely no need for a NDFSC as a long-term arrangement as there is already provision for such an institutional mechanism. Paragraph 9 of the White Paper on Defence – May 1996 “supports the creation of a military ombudsperson whose main duties are ... investigate complaints against the SANDF by military personnel….”. This provision has never been implemented thus leaving the military leadership largely unaccountable. The interim report presented by the Commission to the National Assembly on the 18th November 09 identified the failure of military leadership (Command and Control) as one of the key concerns in defence management. The Commission also reported that soldiers from the 21st SA Infantry Battalion – Johannesburg have become so disillusioned by the situation that they believe that “nobody cares; nobody wants to talk to them and that the commission is the last hope. No Army General has visited this unit since the protest march in August till now, this is an illustration of very poor military leadership.
In order to cultivate and nurture mutual trust and confidence in the defence force, some democracies have considered it necessary to appoint a military ombudsperson. This is a person who acts as a trusted intermediary between an organisation and some internal or external constituency while representing the broad scope of constituent interest. A meeting of the Joint Standing Committee on Defence which was held in February 1999 decided that a military ombudsperson be located in the office of the Public Protector. It is unknown why a military ombudsperson has never been appointed in South Africa. It is proposed that should a military ombudsperson be appointed, such a person be situated in the DOD.
If there is an acceptance of the military ombudsperson, the fundamental question is whether this mechanism will be allowed to bargain collectively on behalf of soldiers. If the answer is yes, its independence may be questioned. If on the other hand the answer is no, then it begs the question, who will bargain on behalf of the soldiers?
This discussion illustrates the point that the interim arrangement of the NDFSC will certainly contribute to the successful resolution of the current issues of soldiers, but the recent actions by the Minister, where she changed the terms of reference might question the independence of the Commission. It is not clear how this Commission will resolve matters in the future since at the centre of this concern is the need for a bargaining instrument. There is no need for a permanent commission, what is needed is to activate the military ombudsperson to ensure accountability. It further demands professional military leadership that can command and manage this military to be an effective and efficient force that has the confidence of the South African society. In addition, an association to represent soldiers in the military bargaining council is required to deal with issues of conditions of service, thus making trade unions in the military irrelevant.
