As the Constitutional Court begins deliberations in a highly consequential case concerning sexual abuse in the South African Military, the International Commission of Jurists (ICJ) has submitted argument that South Africa bears obligations under international law to ensure that courts and tribunals, including military courts, are competent, independent, impartial and allow for a fair and public hearing. The ICJ sets out, analyzes and interprets South Africa’s obligations under international law and the impact of these obligations on its domestic law. One of the consequences of South Africa’s failure to secure the independence of military courts is a failure to ensure accountability for victims and survivors of sexual violence allegedly perpetrated by members of the South African National Defence Force (SANDF) which amounts to a failure to comply with South Africa’s international obligations to prevent and redress and combat all forms of gender-based violence.
The ICJ, represented by the Legal Resources Centre (LRC), is intervening as an amicus curiae (friend of the court) in the case Lieutenant Colonel K.B O’Brien v. the Minister of Defence and Military Veterans (and others), due to be heard by the Constitutional Court on 8 August 2024. The case addresses questions around the functional and effective judicial independence within the military courts in South Africa, which the ICJ submits is inadequately protected. One adverse impact is that military courts have not been able to protect the rights of survivors of gender-based violence alleged to have been committed by members of the South African military. The applicant, Lieutenant Colonel Kevin O’Brien, was previously a military judge whose appointment was not renewed in 2014. Lt-Col O’Brien last sat as a military judge in 2017 and has since been an instructor at the School of Military Justice. He is challenging several provisions of law concerning the military courts in relation to procedures for appointment and removal, which involve undue participation of political authorities and thereby serve to undermine the status and function of these courts as independent.
“The power granted to the Minister to remove military judges, without oversight, is antithetical to the independence of military courts and judges and amounts to the effective management and a degree of control of military courts by the executive.”, said Kaajal Ramjathan-Keogh, ICJ’s Africa Programme Director.
The ICJ has successfully petitioned the Court to allow it to adduce evidence of a government issued report documenting the extent of harm by the South African military in respect of sexual harassment, sexual exploitation, sexual abuse, and sexual offences.
“As the government itself has acknowledged, there is a serious problem with gender-based violence perpetrated within and at the hands of the South African military. The inadequate independence of military courts therefore significantly reduces the avenues for accountability for survivors of abuse,” said Ramjathan-Keogh.
In its written submission, the ICJ connects the inadequacies of judicial independence with the potential failures of the military courts to ensure accountability for survivors of such abuses within and at the hands of members of the South African National Defence Force. The ICJ underscores that under international standards cases of torture and ill-treatment, including rape and other sexual violence should be adjudicated by ordinary civilian courts, but where military courts do act, they must be effectively independent from political entities.
In summary, the ICJ’s submissions raise the following key points:
- International law and standards applicable to South Africa must give effect to human rights obligations in respect of the independence of the independence of the judiciary, and international standards on judicial independence are applicable to military tribunals.
- Sections 15 and 17 of the Military Discipline Supplementary Measures Act 16 of 1999, which grant the Minister of Defense and Military Veterans the discretionary power to appoint military judges on a temporary basis or remove them without any oversight, is non-compliant with the principles of judicial independence, and is therefore in breach of South Africa’s international legal obligations.
- The investigation of military judges and/or revision of their judicial decisions through a board of inquiry, under sections 101 and 102 of the Defence Act No. 42 of 2002, is a clear violation of the principle of judicial independence.
- One of the many consequences of South Africa’s failure to secure the independence of military courts is a failure to ensure accountability for victims and survivors of sexual violence allegedly perpetrated by members of the SANDF. This, therefore, also constitutes a failure to comply with South Africa’s international obligations to prevent and redress all forms of gender-based violence.
Background to the case
Under the African Charter on Human and People’s Rights and the International Covenant on Civil and Political Rights, South Africa is required to provide for competent, independent and impartial tribunals established by law, which includes ensuring the institutional independence of military courts from political entities, secure the tenure of military judges, and prevent the review of judicial decisions by a third party other than courts.
The applicant challenges the constitutionality of the provisions of the Military Discipline Supplementary Measures Act No. 16 of 1999, which allows the Minister of Defence and Military Veterans to appoint or remove military judges without the involvement or oversight of any independent body. The applicant also challenges section 15 of the Military Discipline Supplementary Measures Act as it permits the Minister and the Adjutant General to make renewal assignments of military judges, for short periods, at their sole discretion, and without any objective criteria. Additionally, the applicant requests the Court to assess the constitutionality of sections 101 and 102 of the Defence Act No. 42 of 2002 in as much as it empowers members of the executive to appoint boards of inquiry, staffed by non-judicial officers, to investigate military judges, their judgments, and the conduct of their cases.
South Africa has a system of military courts where the Minister of Defence and Military Veterans has the exclusive authority to appoint or remove judges who preside over the courts, which consists of the Court of Military Appeals, the Court of a Senior Military Judge, and the Court of a Military Judge. Military courts have criminal jurisdiction over members of the South African National Defence Force, some members of whom have been accused of offenses including treason, murder, rape, or homicide. A South African NGO, Open Secrets, has documented numerous criminal cases allegedly committed by the SANDF and is calling for an international investigation into extra judicial murders and killings within the South African military. Surveys conducted by a Ministerial Task Team Report on Sexual Harassment, Sexual Exploitation, Sexual Abuse and Sexual Offences within the Department of Defence for the period December 2019- June 2020 identified at least 438 alleged cases of sexual misconduct cases against military staff and officials.
Lt-Col Kevin O’Brien served as a military judge for fixed periods in 2013, 2014, and 2016. During his tenure, he expressed his concerns on record, in some of the matters he presided over, about the manner of appointing judges to military courts, the constitutionality of the process, and the impact on the independence of military courts and fair trial rights. In 2014, he received an admonition from his superiors for expressing these views. Later, in 2016, the Minister of Defence and Military Veterans convened a board of inquiry to investigate all matters heard by Lt-Col O’Brien. Eventually, the Minister of Defence and others brought an application reviewing Lt-Col O’Brien’s judgments and orders. In response to this application, Lt-Col O’Brien launched a counter-application, challenging the constitutionality of the provisions as discussed above.
The High Court of South Africa (Gauteng Division, Pretoria) and the Supreme Court of Appeal previously rejected Lt-Col O’Brien’s counter-application and appeal challenging the constitutionality of the Minister of Defence and Military Veterans’ authority.
Resources
- South Africa: High Court, Gauteng Division, Pretoria, Minister of Defense and Military Veterans and Others v O’Brien N.O and Others.
- South Africa: Supreme Court of Appeal, Lieutenant Colonel KB O’Brien NO v The Minister of Defense and Military Veterans and Others.
- South Africa, Military Discipline Supplementary Measures Act 16 of 1999.
- South Africa, Defence Act No. 42 of 2002.
- The Constitution of South Africa.
- ICJ, International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors, Practitioners’ Guide No. 1.
- Military jurisdiction and international law, volume 1 Military courts and gross human rights violations.
- Ministerial Task Team Report on Sexual Harassment, Sexual Exploitation, Sexual Abuse and Sexual Offences within the Department of Defence
Contact
Kaajal Ramjathan-Keogh, ICJ Africa Director, e: Kaajal.Keogh@icj.org
Jean-Andre Deenik, Communications & Marketing Officer at LRC, e: jeanandre@lrc.org.za
Cecile van Schalkwyk, Attorney at the LRC, e: cecile@lrc.org.za