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Handbook on security sector governance Handbook on security sector governance Document Transcript

  • CONTENTS PageAcknowledgements1. Introduction 1.1 The Case for Security Sector Transformation 1.2 Defining Security for Africa 1.3 Security Sector Transformation Processes in the Developing World 1.3.1 Transformation versus Reform 1.3.2 Principles Underlying Sound Security Sector Governance 1.3.3 The Centrality of the Policy Environment 1.3.4 The Policy Framework 1.3.5 Prioritizing Needs 1.3.6 Management Capacity 1.4 The Handbook 1.4.1 Audience 1.4.2 Content 1.4.3 Use2. The Major Security Actors 2.1 Two Key Concepts: The Security Sector and the Security Community 2.2 Organisations Legally Mandated to Use Force 2.3 Justice and Law Enforcement Organisations 2.4 Civil Management and Oversight Bodies 2.5 Other Members of the Security Community 2.5.1 Non-statutory Security Force Organisations 2.5.2 Civil Society 2.6 Regional and Multilateral Actors3. Democratic Governance and the Security Sector 3.1 The Importance of Democratic Governance 3.2 The Legal Basis of the Security Sector 3.3 Transparency in the Security Sector 3.4 Security-Sector Accountability 3.5 Security-Sector Oversight
  • Page4. Policy Development and Implementation 4.1 Why Policy is Important 4.2 The Politics of the Policy Process 4.3 The Policy Context 4.4 The Policy Management Process 4.4.1 The Importance of Adequate Human and Institutional Capacity 4.4.2 Policy Communication, Dialogue and Debate 4.4.3 Policy Analysis 4.4.4 Initiating a Policy Process 4.4.5 Policy Development 4.4.6 Policy Implementation 4.4.6.1 Planning 4.4.6.2 Execution 4.4.7 Oversight 4.5 Key Considerations in Implementing New Policies5. Managing Financial Resources 5.1 Incorporating the Security Sector into Government-Wide Fiscal Management Processes 5.1.1 Sectoral Planning Process 5.1.2 Setting the Government-Wide Resource Envelope 5.1.3 Sectoral Allocation of Resources 5.1.4 Efficient and Effective Use of Resources 5.2 Key Considerations in Reforming Budgeting Systems6. Managing the Defence Sector 6.1 Role of the Ministry of Defence 6.2 Assessing Needs 6.2.1 Rationale for the Defence Forces 6.2.2 Determining the Configuration of the Defence Forces 6.2.3 Defence Review Process 6.3 Defining Policies and Plans 6.3.1 Management of the Defence Review Process 6.4 Allocating Resources ii
  • 7.AppendicesAppendix 1: Workshop participantsAppendix 2: iii
  • ACKNOWLEDGEMENTS The handbook has been produced by a collaborative effort amongresearchers and practitioners across Africa. Core members of the writing team are:Nicole Ball, ‘J. Kayode Fayemi, ‘Funmi Olonisakin, and Rocklyn Williams.Contributors to the handbook are: Len LeRoux, Ntsiki Motumi, Janine Rausch, MarkShaw and [WHO ELSE?]. The handbook has also been the subject of consultationsduring regional meetings held by affiliated research networks in Western andSouthern Africa during which researchers, policy makers and practitioners gavegenerously of their time. The objective of these consultations was to obtain inputfrom a wide variety of local stakeholders on the draft handbook and to deepen theauthors’ understanding of good and bad practice. Information obtained through theseconsultations has also been incorporated into ongoing research projects carried outby the Centre for Democracy & Development (Lagos/London), the Center forInternational Policy (Washington, DC) and the Security Sector TransformationProject of the Institute of Security Studies (Pretoria). The authors would also like to thank: Malcolm Holmes, iv
  • 1. INTRODUCTION1.1 THE CASE FOR SECURITY SECTOR TRANSFORMATION This handbook begins from the premise that people and states must be securefrom the fear of violence at the local, national, regional and international levels if anenabling environment for sustainable political and economic development is to becreated. This means both that states must be adequate protected against aggressionand internal subversion and that the lives of ordinary citizens must not be crippled bystate repression, violent conflict, or rampant criminality. Since the beginning of the colonial period, African security forces have frequentlybeen a cause of insecurity for both the state and its citizens, rather than a means ofguaranteeing individual and collective security. African governments have often failedto abide by the rule of law in their relations with their neighbours or their own population.Many of sub-Saharan Africa’s recent wars have their roots in élite attempts to protecttheir privileged position domestically or to undermine other African governments whoseforeign policies are viewed as injurious to the ability of these élites to remain in power. What is more, African historical experience demonstrates that if internal andexternal security are not viewed as two sides of the same coin, it will be difficult tocreate societies that function on the basis of the rule of law and protect individualsecurity. All too often, the armed forces and the police have been given – or haveappropriated – the responsibility for guaranteeing law and order. While there areconditions under which the armed forces can provide aid to the civil power, domesticpolicing is not a task for which they are well suited. It also can hamper their ability tocarry out other constitutionally mandated tasks, such as protecting the state. Thisproblem has been compounded by the failure to provide police and gendarmerie forcesand other portions of the public security/criminal justice system with the resources theyrequire to guarantee law and order. This handbook will describe how to develop aprocess for allocating resources between the different security forces that protect boththe state and its population. The inability of African security forces to provide a safe and secure environmentfor economic and political development arises to a large degree out of poor governance– both of the state in general and of the security sector in particular. This handbook isconcerned with democratic governance. While public-sector institutions will be a majorfocus of the following chapters, democratic governance implies more than the effectiveand efficient management of the public sector. It requires a legitimate, transparent, andtrusted state that is accountable to its citizens. Achieving democratic governance is adeeply political undertaking.1.2 DEFINING SECURITY FOR AFRICA Since the end of the cold war, the desirability of shifting from a state- and élite-focused view of security to one that places individuals at the centre of the security 1
  • equation has gained increasing acceptance in many parts of the world. The concept ofhuman security – which combines elements of national security, economicdevelopment, and basic human rights with the objective of protecting people from thefear of violence – is particularly relevant in Africa. While protecting the state and itscitizens from external aggression remains a consideration, the most serious threatsfacing countries on the African continent at the beginning of the 21st century tend to bethose that either derive from internal causes or are transnational and collective innature.1 Security in Africa would undeniably be served by placing people at the centre forthe security equation and by finding non-violent solutions to disputes at the sub-national, national, regional and international levels.2 A safe and secure environment isa necessary condition for sustainable, poverty-reducing development. In the Africancontext, it is most constructive to speak of a peacebuilding approach to human security.Such an approach imply that a country’s security forces would have as their mainobjectives: protection against external aggression; maintenance of law and order; ability to counter internal threats to the constitutional order; ability to participate in regional defense; protection of borders and national waters; ability to use security forces to promote foreign policy objectives; ability to participate in peace operations; creation of an environment conducive to poverty-reducing, environmentally sound development strategies; and attention to regional/subregional issues such as AIDS, allocation of water resources, and citizenship that have the potential to undermine stability.All of these activities should be carried out in a manner consistent with internationalhumanitarian law, respect for human rights, international standards of democraticgovernance, and support for non-violent conflict resolution and societal reconciliation.1 For an approach to human security that focuses on protecting people from the fear of violence, see, forexample, Human Security Network. “Report of a conference organized by the Programme for Strategicand International Studies, Graduate Institute of International Studies, Geneva, March 8-9, 2001,”www.humansecuritynetwork.org/report_may2001_3-e.asp. For an approach that comes closer toequating human security with human development, see the website of the Commission on HumanSecurity, www.humansecurity-chs.org.2 For a comparison of the state-centric view of security and the “new thinking” on security in thedeveloping world that began to emerge in the late 1980s, see Gavin Cawthra, Securing South Africa’sDemocracy: Defence, Development and Security in Transition, London: Macmillan Press Ltd., 1997, pp.7-26. 2
  • Adopting a peacebuilding approach to national security implies a broadening ofthe current security agenda in virtually every African country. It does not, howeverbroaden that agenda so much that the traditional security forces – the armed forces, thepolice, paramilitary forces such as the gendarmerie and borders guards, and theintelligence services – can justify violating one of the basic tenets of democraticgovernance in the security sector, namely political non-partisanship. Nor does apeacebuilding approach to human security justify security force involvement in theeconomy. Adopting a peacebuilding approach does, however, imply the need to assesseach country’s security environment, including regional and international considerations,and to evaluate the structures, roles and missions of the different security forces in thelight of the primary objectives listed above. The outcome of such an assessment maybe to engage in a significant restructuring of the security sector in order to maximise itscapacity to protect the state and its citizens from the full range of threats identified andintegrate the security sector fully into a system of democratic governance. Apeacebuilding approach to human security simultaneously requires ensuring that thecivil authorities have the capacity to manage and oversee the security forces accordingto the principles of democratic governance and that the various non-state actors playtheir respective roles responsibly and in a manner consistent with democraticgovernance.1.3 SECURITY SECTOR TRANSFORMATION PROCESSES IN THE DEVELOPINGWORLD1.3.1 Transformation versus Reform In both the literature and official discourse on improving security-sectorgovernance, the process of changing the security sector is described as “security-sectorreform.”3 However, reform processes tend to be incremental and relatively ineffective indealing with significant institutional weaknesses. Reforms may change the superficialappearance of an organization without fundamentally altering its character, culture, orthe de facto balance of power within the organization, as the many attempts atrestructuring post-coup armed forces in Africa and Latin America have repeatedlyshown.3 For example, see Dylan Hendrickson and Andrzej Karkoszka, “The Challenges of Security SectorReform’, pp. 175-201in Stockholm International Peace Research Institute, SIPRI Yearbook 2002:Armaments, Disarmament, and International Security, Oxford, UK: Oxford University Press, 2002; DylanHendrickson et. al, Security Sector Reform and Development Co-operation: A Conceptual Framework forEnhancing Policy Coherence, report to the OECD/DAC, Paris, 2000; UK Department for InternationalDevelopment, Security Sector Reform and the Management of Military Expenditure: High Risks forDonors, High Returns for Development, Report on an International Symposium, London: DFID, June2000; Bonn International Center for Conversion, Security Sector Reform, Brief 15, Bonn, June 2000;Malcolm Chalmers, Security Sector Reform in Developing Countries: An EU Perspective, London:Saferworld, January 2000; and Nicole Ball, Spreading Good Practices in Security Sector Reform: PolicyOptions for the British Government, London: Saferworld, December 1998. 3
  • What is more, the term “reform” has many negative political connotations indemocratically-inclined communities in the developing world, especially in Africa.Politically it is often associated with the implementation of policy decisions by theexecutive from above without any attempt to secure the broader participation of andconsultation with legislative or non-state actors. Many of the reform strategies adoptedin Africa have been undertaken to legitimize unpopular regimes and have failed to alterthe existing balance of power within the state or between the state and society to anymeaningful extent. Transformation, in contrast, entails a more profound intent on behalf of electedgovernments to ensure that the practices of the security forces are consistent with thedemocracies that they serve. Countries with serious governance deficits may require afundamental transformation of relations between the civil authorities and civil society onthe one hand and the security forces on the other hand. Such transformations shouldoccur within a framework of democratic oversight and control (Box 1-1). Box 1-1. Community Policing versus the Culture of Policing In a number of countries, civilian oversight of and engagement with policing are viewed as two methods of improving the democratic governance of the security sector. There are, however, serious questions about the degree to which such mechanisms can foster democratic policing in a political system characterised by a low level of overall democracy. “It is unclear whether militarized police institutions characterized by high levels of hierarchy, top- down command, strict internal discipline, low levels of education and use of discretion amongst street cops are capable of implementing many aspects of community policing. It may be that police must initiate processes of institutional reform and professionalization as a pre-requisite to community policing rather than looking to community policing as a strategy to achieve this transformation. It is also clear that community policing methods such as neighborhood watches and community patrols have been used by communist governments and in counter-insurgency campaigns as effective tools of social control.” Source: Rachel Neild, “From National Security to Citizen Security: Civil Society and the Evolution of Public Order Debates,” Report prepared by the International Centre for Human Rights and Democratic Development, December 1999, www.ichrdd.ca/english/commdoc/publications/demDev/ CitizensSecurity.html Equally important, transformation processes should be supportive of the rolesand tasks that the different security organizations are mandated to execute. They needto address four institutional aspects of each of the security bodies: its organizationalcharacter, its cultural make-up, its human resource practices and, critically, and itspolitical relationships with both the elected authorities and with the civil power. Failureto address all four of these areas will invariably result in a failure to address thefundamental character and purpose of the institution in question and thus reduce thelikelihood that the transformation process will succeed. Transformation processes are highly complex and for that reason are oftenviewed with trepidation. The restructuring of the security sectors of many Africancountries, particularly those that are attempting to emerge from either an authoritarianor a violent past, demands a visionary and integrated transformational strategy capable 4
  • of ensuring that the country’s security institutions do not regress into previous patternsof behaviour. In practice, shifting political priorities, resource limitations, skills deficits,weak leadership and the sheer novelty of the transformational terrain may bedevil suchinitiatives. For these reasons, the very prospect of a thoroughgoing transformation mayprove daunting to a country’s political leadership. This may be particularly true wherethe security organizations have played an important political role in recent years andtheir commitment to democratic governance is uncertain. Policy makers may thus optfor reform processes. However, one of the clearest lessons of the past is that when problems in thesecurity sector are approached in a piecemeal fashion, without reference to broad goalsand underlying structural problems, security-sector governance is generally notimproved significantly. Since the security forces have contributed in no small measureto the decline of economic and political governance in much of Africa, it will not bepossible to strengthen African states without adequate attention to the security sector.Moreover, the security-sector transformation agenda is very much a human andinstitutional capacity-building agenda and, by definition, recognizes that states seekingto implement the agenda do not have strong institutions. The challenge is to identifypriority activities and then to develop a step-by-step approach to the transformationprocess that is consistent with local capabilities.1.3.2 The Principles Underlying Sound Security Sector Governance One of the key steps in setting in motion a process of transformation is the clearand unambiguous statement of the key principles that will guide the management of thesecurity forces. Such principles should outline the roles and responsibilities of thepolitical actors, including the role of parliament; the oversight responsibilities of thegovernment; the chain of command within the different security forces; the roles andtasks envisaged for each security force; and the broad democratic principles to whichthe security forces should adhere in their conduct as professionals. It is also necessary to set out thegovernment’s responsibilities toward thesecurity forces clearly and unambiguously. Box 1-2. The Preconditions for Sound Security Sector Governance in AfricaSuch principles should include the provision ofclear political leadership to the security forces; “Without rule of law, democraticand the prevention of political interference in constitutions, a system of checks and balances in government, or viable andthe chain of command by the political functioning institutions, sound securityleadership of the country concerned. It is also sector governance is impossible.”important that government undertakes toprovide the security forces with adequate Source: Participants in the CDD-ISS-CIPresources to accomplish their constitutionally Workshop on Security Sector Transformation, Dakar, Senegal, Octoberdesignated missions. It is important, however, 18-19, 2001.that this not prevent governments fromachieving a proper balance of resources 5
  • between various societal goals. Where resources are inadequate to enable one ormore of the security services to carry out all agreed activities, it will be necessary toreview the plans for the relevant service and adjust them accordingly. [Canadianexample??] All of these principles should be outlined in the constitution, and can be furtherelaborated in subordinate legislation, such as a defence act, police act or intelligenceact, and reinforced through strategic reviews, security assessments, and policy papers.1.3.3 The Relevance of Good Practice This paper focuses on good practice and identifies key principles of democraticgovernance in the security sector. One might well question the relevance of dwelling ongood practice when dealing with an issue like security sector governance where actualpractice diverges significantly from good practice. Governance in the security sector should beapproached as a three-level process (Box 1-3). The first Box 1-3. Three Levels oflevel consists of relevant international law, norms and Policyprinciples. The second level consists of nationallegislation and policies. It is desirable for these to reflect Level 1: International norms, principles, and lawinternational law, norms and principles to the greatestdegree possible. In developing national laws andpolicies, however, it is important to recognize that there isa wide range of ways to structure national law andpolicies and that there is no one-size-fits-all approach. Level 2: National legislation and policies The third level is that of national practice. Nationalpractice may or may not reflect the two preceding levels.Some of the deviations may constitute illegal practice butmuch will not. Every country develops methods of Level 3: National practice [legal, illegal]addressing issues that reflect the spirit of the laws andpolicies of that country but which may not follow exactlythe procedures specified in those laws and policies. That is true for OECD countries aswell as for non-OECD countries. This is what makes it challenging to decide exactlyhow to affect policy in a given area and why a contextual approach is so important. The purpose of starting with good practice is that it provides a clear vision of theobjectives of policy reform – in this case, a democratically governed security sectorunder civilian leadership. Without such a vision, it is impossible to develop either astrategy for reaching the ultimate objective or benchmarks to measure progress alongthe way. It is also impossible to determine where the problems lie with existing policyand practice. Thus, the handbook lays out a number of principles and ideal-typeprocesses for democratic, civil management and oversight of the security sector in orderto provide a point of reference against which actual practice can be measured. 6
  • 1.3.4 The Centrality of the Policy Environment Policy is implemented in a specific context. Political, public, bureaucratic andpersonal factors are critically important in the formulation and implementation of policy.Any attempt to formulate new policy must take account of the environment into whichthe policy is being introduced, for thiscontext will have a decisive bearing on the Box 1-4. President of Namibia Acceptssuccess or failure of policy interventions. Constitutional Term Limitations The degree to which the political In November 2001, Namibian President Samleadership and government bureaucrats Nujoma decided not to stand for re-election inadhere to the fundamental tenets of 2004. Prior to his decision, there had been considerable speculation whether the presidentdemocratic governance defines the nature would seek to amend the Namibianof the policy environment (Box 1-4). Heads constitution’s two-term limit. According to theof state and government unquestionably set ruling party SWAPO’s secretary general,the tone and ethical standards for those who Nujoma “wants to comply with the constitution.”work in government and public service. It is As other presidential elections in Africanot enough, however, for the head of state conducted during 2001 and 2002 demonstrated (Madagascar, Uganda, Zambia, andor government to support constitutional Zimbabwe), institutionalizing theprocesses and the rule of law. It is also democratization process requires the rulingimportant that senior politicians ensure that party to accept not only elections but alsolower-ranking politicians and bureaucrats serious challenges to its continued tenure in theare committed to creating effective state house. Nonetheless, the Nujoma’sinstitutions that function according to decision to abide by constitutional provisions is an important step in strengthening Namibia’sdemocratic principles. The legislature and democratic institutions.other oversight bodies must also be allowed Source: “Namibia: Nujoma’s Departure aand encouraged to play their constitutionally Challenge for SWAPO,” December 7, 2001,assigned roles. Policy will be stronger and www.irrinnews.org.enjoy more widespread support to the extentthat civil society is involved in theformulation process.4 In the past, the policy environment in African countries has been non-transparentand non-participatory. Leaders at all levels have been unaccountable and haveengaged in corrupt activities. Power has tended to be highly concentrated in theexecutive, particularly the office of the president, and interest in reform has oftenextended only to changes that have not threatened the executive’s grip on power.Considerable progress has been made since the 1980s in strengthening the rule of lawand democratic governance in the continent, but considerable challenges continue toexist. It is equally important that the transformation process does not ignore thebalance of power within the security forces, particularly the armed forces. If it does so,it will fail to produce significant change, regardless of the intentions and consultativenature of this process or the quality of the policy products that result. It is imperativethat once a security sector transformation process is underway, the political leadership4 Key principles of democratic governance in the security sector are discussed in Chapter 2. 7
  • of the country make every effort to understand both the de facto and the de jure balanceof power within the security services. Many African armed forces have been notoriouslyfactionalised, as witnessed by the innumerable coups and counter-coups experiencedby African countries. Many of these factions are, however, not necessarily anti-democratic. Even those countries that have emerged from decades of praetorian rulepossess officers within the command echelons that are constitutionally inclined andsupportive of the non-partisan and professional role of the modern military. Ghana,Lesotho, Nigeria, and South Africa provide interesting examples of this point. The transformation of the security services needs to ensure that progressive andconstitutionally-inclined officers are deployed in those positions within the command andstaff hierarchy that are essential for long-term transformation of each institution. In theshort term, it will be particularly important to focus on such posts as: the chief of the defence force, the inspector general of police, the chief of the most influential military service (which in most African countries tends to be the Army), the most senior intelligence officers in the various intelligence bodies, the key operational commanders (particularly at divisional and brigade level in the armed forces), and the strategy and planning staffs of the various security forces. In the medium to long-term it is important to ensure that constitutional andprofessional officers control the key socializing institutions such as the planning,personnel, education and training components of the various security bodies.Transformation efforts should also ensure that the institutional capacity of the civiliancomponent of the head offices is strengthened and that supportive personnel from thedifferent security forces are seconded to the relevant ministries to assist civilianmanagers with the formulation of realistic policy, planning and budgetary forecasts. Insome countries civil society organisations such as research institutes, universities ornon-governmental organizations may provide an additional source of the requisitetechnical assistance.1.3.5 The Policy Framework Government must provide a clear policy framework within which thetransformation of the security sector will be managed.5 These generally include policystatements, strategic defence and security reviews, concept documents, andtransformation strategies. There are a number of advantages to providing such a policyframework for both the security forces and government. First, policy frameworks provide the security forces, the government, and the population with a clear description of the purposes for which resources are being5 The process of developing and implementing security-sector policy is discussed in Chapter 3. 8
  • allocated to the security forces. In turn, they afford the security forces a clear understanding of their roles in providing the safe and secure environment necessary for democratic development, poverty-reduction, and sustainable economic and social development. Second, the process of setting government priorities both within the security sector and between security and other sectors is dependent on well-articulated policies. Third, engaging in a participatory policy formulation process in the security sector provides an opportunity to build confidence between the security forces and civilians. A well-managed process can significantly defuse the often-adversarial relationship between the civil authorities and the security forces by helping each side understand the perspectives and needs of the other and by building personal and professional relationships necessary for compromise to be achieved. Fourth, a participatory policy development process that includes a wide range of non-security actors removes decision-making on the management and oversight of this sector from the hands of a small group of technocrats, enabling the broader implications of security sector policy to be given adequate weight. Fifth, if correctly managed, such processes can bestow considerable legitimacy on both the security forces and the government in managing the country’s civil-security sector relations. Finally, a well-managed policy development process can strengthen democratic governance, by reaffirming democratic norms and principles such as the rule of law and civil oversight and by helping to inculcate democratic behaviour.1.3.6 Prioritizing Needs Another central government responsibility involves identifying the key strategicareas that require immediate attention during the security-sector transformationprocess. Given the immensity of major transformational initiatives, the issues whichtransformation processes are called upon to address, and the limited institutionalcapacity to deal with these issues, it is imperative that realistic, and sustainable,interventions are made. From a consideration of security-sector transformationprocesses that are in various stages of completion in Africa (Mozambique, Namibia,Sierra Leone, South Africa, Uganda, Zimbabwe for example) and those that are in theprocess of being initiated (the Democratic Republic of the Congo, Lesotho, Nigeria and,possibly, Burundi), it is apparent that a generic set of issues present themselves forimmediate consideration in the management of such processes. These include: Creating the political will necessary to engage in significant transformation of the security sector; Building capacity among parliamentary oversight committees and other civil management and oversight actors such as the ministry of finance, the office of the auditor general, and the ministry of defence; Developing a clear policy framework within which the relationship between the security forces and the civil authorities can be both articulated and managed; 9
  •  Managing critical human resource issues confronting the security forces, such as downsizing, institution of equity programmes in the recruitment and promotion policies of the various security forces and transformation of the leadership, command and management culture of those forces; Reprofessionalizing the security forces, including the separation of civil policing and external defence functions and reorienting the intelligence services to protect the state and its population rather than political élites; and Preparing the security forces for new roles and tasks (peace missions, military aid to the civil community, or combating transnational crime, for example). Prioritizing these issues is not intended to undervalue other pertinenttransformational issues such as the involvement of the security forces in truth andreconciliation processes or the transformation of the education and training institutions.Making progress in these priority areas will, however, create an enabling environmentwithin which the longer-term transformation of the institution can proceed.1.3.7 Management Capacity It is also necessary to undertake a realistic appraisal of the capacity of thesecurity forces and the civil authorities to manage and implement ambitious security-sector transformation initiatives. Well-intentioned policy that has not taken into accountthe resource constraints, institutional limitations, human-resource limitations andpolitical priorities of the country concerned will act as no more than visions with littlelong-term, operational utility. Realistic plans need to be developed, issues need to beprioritized, and a comprehensive “force-field analysis” of the capabilities of the institutionin question needs to be conducted if viable transformation strategies are to bedeveloped and implemented. As Box 1-5 suggests, the managerial capacity of the civilauthorities is quite weak in many parts of Africa. Box 1-5. Civil-Military Imbalances in SADC Countries “Comparative studies of the organizational structures of the ministries responsible for defence in the [SADC] region show that some of them still have inadequate institutional arrangements for stable civil-military relations. In some defence ministries, the military [are] dominant and civilians hardly make any meaningful contribution to defence policy formulation and financial control. The military principals, the chiefs of defence forces or force commanders, do not have civilian counterparts or Principal Secretaries to jointly plan, coordinate and execute policy.” Source: Erastus I. Negonga, “Namibian Civil-Military Relations in the New Millennium: Prospects and Challenges,” Prepared for the ISS Security Sector Transformation Project, August 15, 2001. 10
  • 1.4 THE HANDBOOK1.4.1 Audience This handbook provides guidance on undertaking a process of security sectortransformation consistent with democratic governance principles and a human securityagenda. It is primarily intended for security sector practitioners both in the securityforces and among the civil authorities charged with managing and monitoring theactivities of the security forces. It is secondarily intended to assist policy makers, civilsociety, and those agencies that provide financial and technical support to efforts tostrengthen security sector governance to understand the issues involved in atransformation process.1.4.2 Content Chapter 2 defines the security sector and introduces the concept of the “securitycommunity.” Chapter 3 outlines the requirements of security in a democracy. Chapter 4 discusses generic aspects of policy development and implementation. Chapter 5 reviews the principles underlying financial management in the securitysector. In Chapters 6-8, the handbook discusses key issues in the management each ofthe main security forces: the armed forces. the police, and the intelligence services.FINISH1.4.3 Use This handbook constitutes a first cut at documenting critical processes andinstitutional relations that must come into being if the countries of sub-Saharan Africaare to develop sound governance practices in the security sector and if external actorsare to provide meaningful support to these efforts. As such, it does not providedefinitive guidance on how best to approach security-sector transformation in sub-Saharan Africa. Rather, it aims to be a tool for promoting dialogue within Africa –nationally, regionally, and cross-regionally – as well as between external actors andAfrican governments and civil society on concrete ways to enhance good governance inthe security sector that are consistent with African traditions and experience. It is hopedthat the handbook will encourage similar efforts at the national level, tailored to meet thespecific needs of individual countries. For these outcomes to occur, the handbook needs to be adopted for use asbroadly as possible. The handbook has been designed both as a tool for developing orstrengthening incipient transformation processes and as a training tool in environmentswell committed to a process of transformation. It has therefore developed a multi-pronged strategy for maximizing the adoption of the handbook. This strategy is 11
  • predicated on the belief that it is institutions, not individual leaders, that ultimatelymatter. Thus it focuses on processes that can assist institutional development andseeks to: develop linkages with reform-minded officials at all levels of government and within all segments of political and civil society in sub-Saharan Africa, especially West and Southern Africa; work to have the handbook adopted as a standard text in the security, defense and police colleges in individual African countries; embed the work on the handbook in regional research and training initiatives such as SACMRP, SADSEM, CDD’s West Africa network, and ACSS; work to have the handbook adopted as a standard training tool by these and other civil society initiatives; and embed the handbook in the work of relevant subregional and regional organizations such as ECOWAS, SADC, the Conference on Security, Stability, Development and Cooperation (CSSDCA), and the [Peace and Security cluster of the New Partnership for Africa’s Development] Conflict Dimension of the New Africa Initiative at the level of OAU. [Correct terms here.] The processes which define sound governance in the security sector that arediscussed at length below should be seen as end product of a long period oftransformation. No country in the world currently fully implements all of the processesthat should, in principle, guide state actions in the security sector. These processes andthe institutional transformation objectives they imply should be seen as a set of goalsthat governments and societies work to implement incrementally. As with all broadpolicy objectives, it is necessary to identify reasonable steps along the way towardachieving these goals. While reaching these goals may seem daunting in view ofactual practice in a country, it is nonetheless important to have them as an objective. Problems in the security sector must be approached from the perspective ofbroad goals and underlying structural weaknesses. A focus on short-term “fixes” in anysector will fail to get at the core problems. Sometimes, technical solutions haveaggravated underlying structural weaknesses. The precise shape and pace of changein each country will depend on a range of factors. This handbook seeks to assist itsusers to develop a holistic view of the state of the security sector in their own countriesand to map out process for strengthening democratic governance of the security sector. 12
  • Do we want to include a summary box for this introductory section? I DON’TTHINK IT IS NECESSARY. 13
  • CHAPTER 2 THE MAJOR SECURITY ACTORSAIM This section identifies the potential security universe in a country and providesbrief descriptions of each main group of actors. Security sector transformationprocesses often focus extensively on the security forces, secondarily on the civiloversight actors, and only rarely on the other actors within the broad securitycommunity. This chapter argues that all members of the security community need to beengaged if sound governance of the security sector is to be achieved. Section 2.1 discusses two key concepts: the security sector and the securitycommunity. Section 2.2. discusses organisations legally mandated to use force.Section 2.3 examines justice and law enforcement organisations. Section 2.4 looks atthe civil management and oversight bodies. Section 2.5 reviews the non-statutorysecurity force organisations and civil society actors. Section 2.6 considers regional andmultilateral actors.2.1 KEY CONCEPTS: THE SECURITY SECTOR AND THE SECURITY COMMUNITY The totality of actors that affect the security of the state and its populationconstitutes the “security community.” The official actors within the security communitycomprise the “security sector.” The security sector can be divided into three main groups of actors: Organisations legally mandated to use force: armed forces; police; gendarmeries and other paramilitary forces; coast guards; territorial border guards; reserve or local security units (civil defense forces, national guards, presidential guards, official militias); military and civilian intelligence services; customs and other uniformed bodies such as secret services. Justice and law-enforcement organisations: judiciary; correctional services; criminal investigation and prosecution services; customary and traditional justice bodies. Civil management and oversight bodies: legislatures and legislative committees; ministries of defense, internal affairs, justice, foreign affairs; office of the president/prime minister; financial management bodies (ministries of finance, budget offices, auditor’s general’s offices); national security advisory bodies; relevant regional/provincial and local authorities, including customary and traditional 14
  • authorities; statutory civil society organizations such as such as human rights ombudsmen, police commissions, public complaints commissions.6 In addition to these public sector actors who are mandated to use force to protectthe state and its citizens and the civil management and oversight bodies, there are anumber of additional actors who influence the content and implementation of securitypolicy in Africa. These can be divided into two main groups: non-statutory securityforce organizations and non-statutory civil society bodies. Together with the securitysector, these actors comprise the security community. Non-statutory security force organizations: liberation armies; guerrilla armies; traditional militias; political party militias; self-defense organizations, including those based on regional, ethnic or religious affiliations; and private security companies. Non-statutory civil society bodies: professional organisations, including trade unions; research/policy analysis organisations; advocacy organisations; the media; religious organizations; membership organizations; other non-governmental organizations; and the concerned public.Figure 2-1. The Components of the Security Sector and the Security Community Organisations mandated  Non-statutory security to use force force organisations Justice/law-enforcement Security  Non-statutory civil Security organisations Sector society organisations Community Civil management and oversight bodies2.2 ORGANISATIONS LEGALLY MANDATED TO USE FORCE Discussions about security tend to focus on the role of the military, which ischarged with protecting the state, and particularly the army. This reflects thewidespread, but by no means universal, tendency to favor the military, especially thearmy, in resource allocation. It is also a manifestation of the direct and indirectinfluence that the armed forces have often exerted over political life in African states. A peacebuilding approach to security, however, draws attention to the fact thatachieving security for states and their populations is not a task that the army or even themlitary can accomplish by themselves. Other state bodies that are mandated to ensurethe safety of the state and its citizens such as the police, the gendarmerie, civilian andmilitary intelligence, border and coast guards, secret services and customs enforcement6 For a slightly different formulation, see Dylan Hendrickson and Andrzej Karkoszka, “The Security Sectorand the Challenges of its Transformation,” Chapter 4 in SIPRI Yearbook 2002: Armaments, Disarmamentand International Security, Oxford, UK: Oxford University Press for the Stockholm International PeaceResearch Institute, 2002. 15
  • entities need to be part of the equation. In some countries, the influence, prestige, andcapabilities of paramilitary forces or intelligence services outweigh those of the military,and one or more of them may receive the lion’s share of resources. One security body that consistently receives little consideration and generally hasvery low prestige is African police services. This is highly problematic, since aneffective police force capable of ensuring citizen security while respecting human rightsis an essential element of a peacebuilding approach to security. An additional problemwith policing in many African countries is the blurring of the distinctions between thefunctions carried out by the military and other defence forces and those carried out bythe police. Defence forces have been tasked to carry out internal security-relatedactivities, and police services have been militarized or actually placed under the controlof the military. In most cases, the police have not received adequate resources toenable them to carry out their public safety functions effectively and are only beginningto develop a culture of service to the public and an understanding of the concept ofpolicing by consent of the people. Failure to engage with the full range of defence and intelligence actors runs therisk of jeopardizing efforts to strengthen overall governance, achieve humandevelopment, and make the most effective and efficient use of state resources. In order to maximize their ability to ensure state and individual security, the rolesthat each of these security actors plays need to be well-defined and transparent. Theforces themselves need to be professional, to adhere to international law anddemocratic governance practices, including their accountability to legitimate civilauthorities, and to eschew involvement in the economy or political life of the country.2.3 JUSTICE AND LAW ENFORCEMENT ORGANIZATIONS Efforts to reform police services in Africa and elsewhere during the 1990s led tothe realisation that public safety and security is dependent on the effective and efficientfunctioning of the entire criminal justice system: the police, the prosectors, the judiciaryand the correction system. Strengthening the capacity of the police to carry out criminalinvestigations, for example, is of little consequence if the accused are released from jailfor political reasons. If the judiciary does not itself abide by the rule of law, it is moredifficult to make the case that the police or prison officials need to protect the civil andhuman rights of those suspected, accused, or found guilty of crimes. It is therefore important to supplement efforts to strengthen the democraticgovernance of the police service with parallel efforts to transform the judiciary and thecorrection system. Different countries and jurisdictions structure these institutions indifferent ways and, more importantly, there are very widely different policies, proceduresand practices that govern the judiciary and the correction system in across Africa.African states also face the need to incorporate traditional systems of justice into theirformal legal systems, which essentially reflect European and international law. Ingeneral, however, most criminal justice systems in Africa, and indeed around the world,share four core objectives: 16
  •  Crime prevention Investigation and prosecution of crimes Adjudication of criminal cases, and Punishment and rehabilitation of offenders. CONTINUE2.4 CIVIL MANAGEMENT AND OVERSIGHT BODIES Just as it is insufficient to focus on the military to the exclusion of otherorganizations legally mandated to use force or on the police to the exclusion of othercomponents of the criminal justice system, providing security for the state and itspopulation should not be the sole preserve of the security forces. Democraticgovernance of the security sector requires an active role for the civil authorities thatmanage and monitor the security forces. The security of both the state and itspopulation will be maximized to the extent that the security forces are under democratic,civil control. One of the major constraints on achieving democratic security-sectorgovernance across the African continent have been restrictions on the ability of the civilauthorities to manage and oversee the activities of the organisations that are legallymandated to use force to protect the state and its population. (Oversight is discussed inmore detail in sections 3.5 and 4.4.3.3.) Both the executive branch and the legislature should be involved in theformulation and implementation of security policy. In most African countries, formalsecurity policies are poorly developed or non-existent, as are the plans for implementingsecurity policies. Where formal policies and plans do exist, it is uncommon for the fullrange of executive and legislative branch actors to have been involved in theirdevelopment and implementation is generally weak. Often, the security forcesthemselves assume responsibility for developing policy. Financial management of thesecurity sector is another problem area, as it generally does not conform to internationalpractice. The central actors in policy development and management include theministries of defence, interior/home affairs, and foreign affairs; office of thepresident/prime minister; cabinet office; and national security adviser. The ministry offinance, the security forces, the legislature, and civil society have important consultativeroles. (Managing the policy process is discussed in Chapter 4; managing financialresources is discussed in Chapter 5.) The legislature is one of the most important oversight bodies and has severalimportant roles to play in monitoring the implementation of security policy. As membersof various oversight committees, legislators vet policies developed by the executivebranch and assess the way in which these policies are implemented. Legislators alsohold the power of the purse, and must approve budgets and monitor theirimplementation. Additionally, the legislature exerts varying degrees of control over theexecutive’s ability to wage war. The government’s auditor-general is another importantoversight actor, as are the public protector, constitutional courts, anti-corruption and 17
  • public accountability bodies. Auditors-general are often thought of in terms of financialoversight, but they can also offer objective assessments of policy and itsimplementation (Box 2-1). Box 2-1. The Mission Statement of the United States General Accounting Office The United States General Accounting Office (GAO), headed by the Comptroller General who reports to the US Congress, is arguably the most highly developed public accountability office in the world. While few countries anywhere can hope to allocate the resources necessary to establish and maintain such an entity, there is much to be learned by examining its objectives and modes of operation that can subsequently be modified to local conditions. The GAO describes itself in the following terms: “The General Accounting Office is the investigative arm of Congress. GAO exists to support the Congress in meeting its Constitutional responsibilities and to help improve the performance and accountability of the federal government for the American people. GAO examines the use of public funds, evaluates federal programs and activities, and provides analyses, options, recommendations, and other assistance to help the Congress make effective oversight, policy, and funding decisions. In this context, GAO works to continuously improve the economy, efficiency, and effectiveness of the federal government through financial audits, program reviews and evaluations, analyses, legal opinions, investigations, and other services. GAOs activities are designed to ensure the executive branchs accountability to the Congress under the Constitution and the governments accountability to the American people. GAO is dedicated to good government through its commitment to the core values of accountability, integrity, and reliability.” Source: www.gao.gov2.5 OTHER MEMBERS OF THE SECURITY COMMUNITY2.5.1 Non-statutory Security Force Organisations While efforts to improve the governance of the security sector correctly focus onofficial actors with the mandate to use force to protect the state and its population, therole played by non-statutory security force organisations cannot be ignored. The importance of non-state actors in Africa has been underscored by armedconflicts such as those in Angola, the Democratic Republic of the Congo, and SierraLeone where the ability to provide the safe and secure environment necessary forhuman security and human development has been compromised by the activities of avariety of non-statutory security actors such as armed opposition groups, other informalsecurity forces, and private commercial security firms. While domestic groups, oftenbacked by regional governments or financed through the sale of natural resourcesfacilitated by foreign middlemen and international companies, are responsible for mostof the actual fighting, private security firms have received considerable attentionbecause of human rights abuses and lucrative contracts which plunder the natural 18
  • resources in exchange for various security-related services. The South African firmExecutive Outcomes which gained notoriety because of its involvement in Sierra Leone,is but one example of the international firms led by former military officers from a varietyof countries that have been involved in one way or another in African wars. Domestically, the inability of the state to protect its population or segments of thepopulation against violence has led to the rise a wide variety of local militia-type groupsand private security firms. Criminal gangs are also growing in strength in many parts ofAfrica. They are increasingly well armed and spreading beyond national boundaries(Box 2-2). National governments areincreasingly hard-pressed to respondeffectively, and vigilantism is a not- Box 2-2. Regionalisation of Crime in Southern Africauncommon response in communities thatfeel they have no other means of “Not only are organised criminal groupsprotection. The Bakassi Boys in Nigeria, engaged in a wide variety of criminalfor example, engages in extra-judicial activities, but the responses also indicatekillings of suspected criminals. It that crossborder criminal activities are extensive…. For example, Botswana, areportedly has the backing of a number country with a relatively small population ofof state governments in southeastern 1,576,470, and a criminal investigationNigeria. [KF: WHY?] [BECAUSE THE department consisting of about 600LAW ENFORCEMENT AGENCIES detectives during 2000, indicated that, of theHAVE LOST THE CONFIDENCE OF 34 categories of crimes listed in theTHE GENERAL PUBLIC. THE POLICE questionnaire, 20 involved crossborder orIS OFTEN SEEN AS AGENTS OF transnational organised criminal activities.INSECURITY. PLEASE SEE THE Politically and economically, Botswana hasARTICLE ON BAKASSI BOYS IN THE been one of the most stable SADC countriesLAST EDITION OF DEMOCRACY & during the past two decades. It has been better placed than most SADC countries toDEVELOPMENT] make resources available for combating crime and has developed a good track In some countries, privately- record in this regard. However, even if itemployed security officers significantly was able to devote more resources towardsoutnumber uniformed police officers. In the combating of organised crime, Botswana2000, for example, South Africa counted will find it very difficult to curb organised216,000 private security officers crime without the more extensivecompared with 90,000 uniformed involvement of other countries in the region.members of the South African Police Peter Gastrow , Organised Crime in the SADCService.7 Private enterprise, wealthy Region: Police Perceptions, ISS Monograph no.citizens, and the international community 60, Pretoria: Institute for Security Studies,are especially likely to purchase private August 2001, www.iss.co.za.protection. The desire of governments to remain in power has also often led to the use ofinformal security bodies, including state-sponsored paramilitary groups and politicalparty security cells, to repress opponents and perceived opponents. Youth militias havebeen a mainstay of ZANU’s campaign strategy in Zimbabwe since the first post-7 Martin Schönteich, “Guarding the Guardians: New Regulations for the Private Security Industry,”www.iss.co.za. 19
  • independence election. For the 2002 presidential election, they were supplemented bygangs of “war veterans” who terrorised and forcibly displaced both white landownersand their black farm workers. State repression and economic marginalisation all toooften result in the creation of informal armed groups seeking to protect the interests ofgroups of citizens. Faced with a growing number of armed groups and at perhaps10,000 deaths since the restoration of elected government in 1999, the Nigeriangovernment has sent “The Prohibition of Certain Associations Act 2002” to thelegislature. This bill would ban any "association of individuals or quasi-military groups"formed "for the purpose of furthering the political, religious, ethnic, tribal, cultural orsocial interests of a group" in a manner contrary to peace and order in the country. In principle, some of these actors could strengthen state or individual security. Ifthe state is unable to ensure adequate policing capacity, individuals may be moresecure if they are able to call on the services of a private security company or aninformal, community-based group. Privatisation programs may also result in a greaterreliance on private security firms for a range of security-related activities, with privatefirms taking responsibility for security at government facilities, guarding strategic assets,assisting in recruiting and training security personnel, and patrolling public areas. Tothe extent that these activities are carried out professionally and the companies areregulated to ensure accountability to the state and the public, the chances that securitywill be strengthened increase and the negative behaviors associated with non-statutorysecurity actors are minimised. Such regulation is, however, difficult to achieve. Even the South Africangovernment, which approved a law regulating “the rendering of foreign militaryassistance by South African juristic persons, citizens, persons permanently residentwithin the Republic and foreign citizens rendering such assistance from within theborders of the Republic” in 1998, has not succeeded in preventing some South Africancompanies from continuing to engage in mercenary activities under the cover oflegitimate private security contracts.8 No other African country, however, has similarlegislation or regulatory capacity, making the potential for abuses that much greaterelsewhere on the African continent. The domestic activities of private security firmsmay be easier to monitor, but most African countries lack the capacity to undertakesuch monitoring. Some actors are not amenable to regulation, however. Armed opposition groupsmust either be defeated militarily or their grievances addressed through a politicalprocess. Efforts to negotiate with the Revolutionary United Front (RUF) in Sierra Leoneor UNITA in Angola were mostly unsuccessful, despite their signature on peaceagreements. While some members of both groups were willing to follow the politicalpath, it was still necessary to dominate UNITA and the RUF militarily. Private securitygroups and local militias that are created to provide security in an environment wherethe state is unable to do so will continue to exist, irrespective of state policy, until theunderlying problems such as weak state security institutions, state bias and preferentialtreatment, and fiscal crisis are overcome. Paramilitary groups created by governments8 Republic of South Africa, “No. 15 of 1998: Regulation of Foreign Ministry Assistance Act, 1998,”Government Gazette, vol. 395, no. 18912, Cape Town, May 20, 1998, www.gov.za/acts/1998/a15-98.pdf. 20
  • or ruling parties to help strengthen their grasp on power will continue to exist untilsignificant political changes occur. Whatever the situation in a particular country, informal actors need to be dealtwith. [CONCLUDING PARA]2.5.2 Civil Society Civil society consists of a broad range of non-state actors, including religiousgroups, academics, policy researchers, the media, women’s groups, professionalassociations such as the bar association, community-based organizations andinterested citizens. Civil society has three critical roles to play in increasing theaccountability of the security sector: demand change, act as watchdog, and providetechnical input. Civil society can play an important role in monitoring the development andapplication of security policy and the activities of the security forces. Such independentanalyses are meant not only to challenge government policies, but also to inform thedebate and provide useful input into the decision-making process. Civil society can alsoact as an important resource for the security community in a more formal sense. Mostfundamentally, civil society can provide a pool of knowledgeable individuals to staffgovernment positions in relevant agencies. Civilians can staff review boards and otheroversight bodies and provide training to members of the security forces and civiloversight bodies. Substantively, civil society can provide input on a broad range oftopics, ranging from overall defense policy, expenditure and procurement proposals tothe human rights record of the security forces. While there is sometimes an assumption that, by definition, civil societyorganizations support a peacebuilding approach to security, that is not always the case.Opinions on security policy are as diverse within civil society as they are withingovernment circles. Civil society groups can become politicized and promote divisionswithin society, rather than seeking ways of overcoming disagreements and disputes andreaching compromise, or they can simply fail to accept the need for responsiblebehavior. For example, the media can act both as a source of information anddisinformation and can foster productive national debate on security issues orstrengthen divisions within society. Civil society can also consciously avoid addressing security-related issues,because it would require them to interact directly with the security forces, which somemembers of civil society find distasteful. For example, professional organizations, whichduring the 1980s constituted the majority of civil society organizations in the Manu RiverUnion countries, especially Liberia, avoided dealing with governance problems of allsorts because these were deemed “political” and thus off-limits for these groups.Human-rights and other civil society groups in many parts of Africa remain highlysuspicious of government and the security forces and find it difficult to engage indebates on security-related reforms and policies. 21
  • 2.6 REGIONAL AND MULTILATERAL ACTORS Although not part of the national security community, regional and multilateralactors are part of the security landscape in Africa. As at the national level, the relevantexternal actors include both official actors and civil society organizations. Among theofficial actors there are both broad based organizations such as the United Nations, theOrganization of African Unity, ECOWAS, SADC, and IGAD and more narrowly focusedgroups such as the Southern African Police Chiefs Co-operation Organisation(SARPCO). Regional actors have become increasingly important as the regional nature ofmany of the security problems confronting Africa has become clearer. The wars inSierra Leone and the Congo will not be resolved without regional approaches. The landcrisis in Zimbabwe has potentially explosive implications for other countries in SouthernAfrica such as Malawi and South Africa. Cross-border criminal activities – such assmuggling vehicles, narcotics and firearms and illegal immigration – have grown inmagnitude through sub-Saharan Africa. These growing regional problems have begun to produce regional responses.Twelve Southern African countries created the Southern African Regional Police ChiefsCo-operation Organisation in the mid-1990s to combat cross-border crime (Box 2-3). InWest Africa, a concern about the illegaltransfer of small arms and light weapons Box 2-3. Mission and Objectives ofled the sixteen members of the Economic SARPCCOCommunity of West Africa (ECOWAS) toendorse a moratorium on the import, 1) promote and strengthen co-operation andexport and manufacture of light weapons to foster joint strategies for management of all forms of cross-border and related crimesin the region at the end of 1998. Not all with regional implications;initiatives to address regional problems 2) prepare and disseminate relevantare appropriate vehicles for strengthening information on criminal activities to benefitgovernance in the security sector. Efforts member countries to contain crime in theshould be made, however, to identify region; 3) carryout regular reviews of joint crimethose regional initiatives and activities management strategies in the light ofthat lend themselves to strengthening changing national and regional needs andsecurity sector governance. priorities; 4) maintain a system and structure to ensure The program established to efficient operation and management ofimplement the West African Small Arms criminal records and effective joint monitoring of cross-border crime.Moratorium, the Programme forCoordination and Assistance for Security Source: “Combating Cross-border Crime - Theand Development or PCASED, envisions Southern African Experience,” Speech by Juantraining for military, security and police Kotze, Inspector, Interpol National Crimeforces of member states. Such training Bureau, Pretoria, South Africa, March 23, 2000,could in principle offer an opportunity to at the Microsoft Combating Cross Border Crime 2000 Conference, Cape Town, Southreinforce the importance of Africa, http://www.microsoft.com/europe/ 22 public_sector/Gov_Agencies/127.htm.
  • professionalization, human-rights protection, transparency and accountability.9Similarly, SARPCCO could be used as a vehicle for strengthening aspects of soundgovernance in the police sector. Regional and sub-regional political organizations suchas the Organization of American States, Southern African Development Community(SADC), ECOWAS, and the Manu River Union (Guinea, Liberia and Sierra Leone) arealso organizations that can be encouraged to promote security sector transformationamong member states. At present, however, these organizations do not have thecapacity to undertake the necessary activities.[WHERE DO DONORS COME INTO THIS??] SUMMARY OF MAIN POINTS9 The fact that ECOWAS member governments need to apply for exemptions to import small arms, forexample for peacekeeping and training purposes, theoretically reinforces the concept of transparency. Ofcourse, despite the moratorium, weapons continued to flow into West Africa in a very non-transparentmanner to fuel the war in Sierra Leone, as well as to arm both the government of Liberia and Liberianopposition groups. On the sources of arms available to both the government of Sierra Leone and theRUF, see Eric G. Berman, Re-Armament in Sierra Leone: One Year After the Lomé Agreement,Occasional Papers 1, Geneva: Small Arms Survey, 2000,www.smallarmssurvey.org/OccasionalPapers.html. 23
  • CHAPTER 3 DEMOCRATIC GOVERNANCE AND THE SECURITY SECTORAIM The essence of the transformation of the security sector is the process of aligningthe sector with core values, principles and practices of democratic governance. Section 3.1 explains the importance of democratic governance. Section 3.2reviews the legal basis of the security sector. Section 3.3 discusses transparency in thesecurity sector. Section 3.4 reviews issues of accountability. Section 3.5 discussesoversight of the security sector.3.1 THE IMPORTANCE OF DEMOCRATIC GOVERNANCE Democratic governance is a critical component of the stable and secureenvironment necessary to promote human development and human security in Africa.As the framers of the New Partnerships for Africa’s Development (NEPAD) haveexplained, It is now generally acknowledged that development is impossible in the absence of true democracy, respect for human rights, peace and good governance. With the New Partnership for Africas Development, Africa undertakes to respect the global standards of democracy, which core components include political pluralism, allowing for the existence of several political parties and workers unions, fair, open, free and democratic elections periodically organised to enable the populace choose their leaders freely.10 Governance has received growing attention in Africa since the early 1990s.Different actors have focused on different aspects of governance. Initially, theemphasis was on economic governance – establishing a predictable regulatoryframework, an effective and transparent public administration, and an independentjudiciary capable of resolving disputes, particularly business disputes. While these areimportant components of sound governance, it has become increasingly evident thatwithout attention to political governance, efforts to improve economic governance will beundermined. Thus, attention must be given to establishing a legitimate, transparent,and trusted state that is accountable to its citizens. Legitimacy and trust are fostered by a state whose government is democraticallyelected and operates on the basis of a constitution that is an expression of the generalwill of the nation. Accountability involves the capacity, or the power, to require someone(an individual or an organization) to justify behavior and/or the capacity to impose a10 “The New Partnership for Africa’s Development,” Part V. Programme of Action: The Strategy forAchieving Sustainable Development in the 21st Century, October 2001, para. 79. 24
  • sanction. Accountability depends crucially on the degree of transparency in society.Participation requires due attention to the role of the legislature as the representativesof the citizenry, as well as on other oversight bodies. Citizens must also be able toexpress their concerns more directly to their elected representatives and to governmentas a whole. Participation is one of the hallmarks of democratic governance, but non-state actors can have both positive and negative effects on the quality of governance. Itis therefore important that non-state actors are also accountable for their actions. Specifically with regard to the security sector, the security forces must beaccountable to democratic, civilian governments, but these governments must also fulfilltheir responsibilities toward the security forces. Thus, it is important that thegovernment respect the professional autonomy of the security forces at the same timeas they expect the security forces to refrain from playing a direct political role ingovernment and to be subordinate to elected civilian officials and the civil authorities interms of policy making.3.2 THE LEGAL BASIS OF THE SECURITY SECTOR The task of creating and maintaining a viable and legitimate state that isaccessible, efficient, accountable, transparent and equitable has been one of the mostcritical and complicated challenges of the political transformation processes that Africancountries are currently undergoing. Democratic governance requires that the efficientand well-functioning institutions and infrastructures of government are legally backedand socially coherent. The legal arrangements that guide governance of the securitysector are generally enshrined in the constitution, which, for all African countries, is awritten document. Sections of the constitution that are particularly important are those Box 3-1. Constitutional Underpinnings of the Uganda Police Forces “211(3) The Uganda Police Force shall be nationalistic, patriotic, professional, disciplined, competent and productive; and its members shall be citizens of Uganda of good character. “212. The functions of the Uganda Police Force shall include the following: (e) to protect life and property; (f) to preserve law and order; (g) to prevent and detect crime; and (h) to co-operate with the civil authority and other security organs established under this Constitution and with the population general. “213. (1) There shall be an Inspector-General of Police and Deputy Inspector-General of Police (2) The Inspector-General and the Deputy Inspector General of Police shall be appointed by the President with the approval of Parliament.... “214. Parliament shall make laws- (a) providing for the organisation and administration of the Uganda Police Force; (b) ensuring that members of the Uganda Police Force are recruited from every district of Uganda; and (c) regulating generally the Uganda Police Force. “ Source: The Constitution of the Republic of Uganda, Chapter 12 “Defence & National Security,”, www.parliament.go.ug/chapt12.htm 25
  • dealing with the armed forces, the police service, intelligence bodies, the penal system,the role of the legislature, and the protection of human rights (Box 3-1). At a minimum,the constitution should specify the lines of authority between all major stakeholders inthe security sector (both civil and security force), the basic responsibilities of each ofthese actors, and the broad democratic principles to which the members of the securitysector should, in their conduct as professionals, adhere. Some constitutions haveincluded no guidance on or have been revised to eliminate important aspects ofdemocratic governance of the security forces. For example, Malawi’s independenceconstitution was revised in 1966 to accommodate one-party authoritarian rule. Itcontained no mention of the functions of the armed forces. Since there was no civilianministry of defence, the armed forces were managed through the Office of the Presidentand Cabinet and the 1966 constitution revoked all clauses pertaining to protection ofhuman rights, there were clear opportunities for using the armed forces for partisanpolitical purposes. In 1995 this situation was reversed as multiparty democracyreturned to Malawi. The new constitution contains an extensive chapter on the humanrights enjoyed by citizens of Malawi and clearly specifies the functions of the DefenceForces of Malawi.11 (NB: The fact that many of Africa’s new democracies haveemerged from prolonged authoritarian settings may very well explain theexclusion of security sector governance in the constitutions of many countriessince the security forces are deemed to be above the law and thus, notanswerable to the constitution. Increasingly though, several constitution makinginitiatives on the continent now incorporate security sector governance as acentral requirement before the constitutions are deemed to be process driven.12Additionally, regional bodies are also adopting regional constitutional principlesand protocols regulating the activities of member-states on issues pertaining tosecurity sector governance.13 In line with these regional initiatives, NEPAD’sAfrica Peer Review Mechanism include democratic control of the securityestablishments as a benchmark for good governance in the approved action planfor democracy and political governance.14Important as the constitution and regional protocols are, additional legislation isgenerally required to flesh out the details of governing the defence, police, andintelligence services and the penal system. In principle, many constitutions locate the powers of originating andenforcing additional legislation in the parliament. A vigorous legislature istherefore often a key requirement (or indicator) of democratic governance in the11 Hawa O. Ndilowe, “Development of Democratic Civil-Military Relations in Malawi: An Opportunity forDemocratic Defence Governance for Malawi,” Prepared for the ISS Program on Security SectorTransformation, April 2000 and “Malawi’s Constitution: Final Draft, Act no. 20 of 1994,”http://www.sas.upenn.edu/African_Studies/Govern_Political/mlwi_const.html.12 See Hassen Ebrahim, Kayode Fayemi & Stephanie Loomis, Principles and Mechanisms of ConstutionMaking in Commonwealth Africa, (Delhi: CHRI, 2000)13 For example, The ECOWAS Supplementary Protocol on Democracy and Good Governance which wasapproved by the ECOWAS Heads of Government in December 2000.14 See summary conclusions of the NEPAD’s Expert Workshop on Processes, Mechanisms, Benchmarksand Indicators for APRM 26
  • security sector. Parliament often has the critical role of laying down the legalframework of democratic security sector governance, of reviewing and approvingsecurity establishments’ policies and budgets (and hence conditions of service),and oversight of sectoral expenditure, procurement, operations, and deployment.In some constitutions, the Parliament is also empowered to approve thedeclaration of war. In addition, some (though not all) Parliaments have oversightover intelligence and security agencies (other than the police). Most African constitutions specifically provide for such legislation. The UgandaConstitution, for example, specifies that Parliament shall make laws regulating the Uganda Peoples’ Defence Forces, and in particular, providing for: (a) the organs and structures of the Uganda Peoples’ Defence Forces (b) recruitment, appointment, promotion, discipline and removal of members of the Uganda Peoples’ Defence Forces and ensuring that members of the Uganda Peoples’ Defence Forces are recruited from every district of Uganda (c) terms and conditions of service of members of the Uganda Peoples’ Defence forces; and (d) the deployment of troops outside Uganda.15[Can we say something generic about who makes this legislation? Does it originatewith the legislature or with the executive?] [NB: I have included a para above andtwo paras below to take care of this:To various degrees, the principle of parliamentary oversight is common toAfrican constitutions. However, constitutions are not always a reliable point ofreference when it comes to determining actual decision-making processes. Evenwhere they exist such as Uganda, the origin of these legislations is alsoimportant, in terms of implementation and future management of the activities ofsecurity establishments. The experience in Africa is that most legislation thatexpatiate on broad constitutional principles regulating the security sector haveemanated from the colonial authorities, who, upon their departure bequeathedsuch legislation to the executive branches of governments that replaced them.These were largely rubber-stamped by the legislatures (where they exist) but thedriving force in many cases remains the executive branch.There are also regional and contextual variations to this general pattern in postcold war Africa. In countries where the post transition configuration hasproduced ‘roots and branch’ transformation of the state in the direction of aconsolidating democratic order, the degree to which the legislature becomes aserious actor in defining and enforcing subsidiary legislation is usually stronger.Equally, states emerging from war to peace and democratic order oftendemonstrate greater susceptibility to involving a wider array of stakeholders than15 The Constitution of the Republic of Uganda, Chapter 12, Section 210, www.parliament.go.ug/chapt12.htm. 27
  • states where transitions have produced contradictory results or conquest states.In the latter, the existence of broad constitutional parameters and detailedprocedural legislation for governing the security sector does not necessarilyimply the accountability of the executive branch on the governance of thesecurity sector.Security Sector Governance is taking place in a diversity of terrains, and reflectsparticular kinds of regimes and political transitions: consolidating democracies(Senegal and Botswana), post-conflict peace-building (Sierra Leone,Mozambique, South Africa), transitions from military rule (Nigeria, Ghana, Mali,Benin) or single-party dispensations (Tanzania, Kenya, The Seychelles, CapeVerde), conquest of the state (Uganda, Ethiopia, Eritrea), contested transitions(Burundi, Rwanda, Cote d’Ivoire), and so forth. The nature of the terrain inevitablyaffects the extent of progress possible.[NB – I am of two minds as to whether the latter section should move to Section3.5. or left here as an argument about the origin the legislation or moved to thesection on legislative oversight below. I leave it to your esteemed judgment todecide where it best fits]In practice, African legislatures are characterized by differences in the nature andextent of their constitutional role and powers, as well as in their inclination toexercise those powers. In terms of political will and muscle, they range from‘activist’ or at least proactive (e.g. South Africa, Uganda and Mali) to moderate(Ghana, Tanzania) to what can only be called ‘laid back’ (e.g. Nigeria, Ethiopia orCote d’Ivoire, where the parliament did not even have a defence committee). Thisis in part a reflection of different constitutional legacies (for example, legislaturestend to be weak in the defence and security arena in the French political tradition,and strong in the case of the American congressional model, with the Britishsomewhere in between), but also testifies to differences in the nature and depthof the political transitions occurring within the African countries as alreadyexplained above.It is clear, however, that African parliaments are weak overall, and operatingunder a variety of constraints in their defence function, some inherent (Georgeand Graham 1994), but many specific to African (and to a degree, newlydemocratizing) countries.For instance, the role of many Parliaments relative to the military budget is oftenno more than ‘decorative’ or a ‘rubber-stamp’; in many cases, ‘parliamentariansseemed to exercise little genuine oversight of the military’, even thoughappropriate committees existed for such oversight.16 Part of the problem is16 NDI, The Role of the Defence & Security Committees in Franco-phone West Africa (NDI, 1997) 28
  • historical: in many African countries there was little opportunity to consolidateearly post-colonial institutional development in the area of civil-military relationsand security sector governance, in part because the area of defence wasparticularly slow to decolonize (in some cases –such as francophone Africa--national armies hardly yet existed), and because in many cases neither defencenor the armed forces was considered a priority. What halting little steps may havebeen taken toward institutionalizing civil-military relations were often terminated(at an early stage) by the entry of the military into politics. Military coups not onlyinterrupted institutional development, but also distorted it in two important ways:first, by enhancing the political and institutional autonomy of the armed forces;and second, by shifting the balance of power between the executive and theparliament, particularly where control over security was concerned.However, many of the constraints are also contemporary. The first relates tounclear constitutional roles and powers. Many constitutions are parsimonious oreven silent on how Parliament should go about exercising its power andfunctions (indeed even the extent of those powers), and no parliamentarytraditions to guide them. By contrast, the functions and powers of the executiveare spelled out in much more specific detail. Also, many constitutions are silenton oversight of Intelligence agencies—a crucial omission, given that heads ofIntelligence and their agencies may not only survive, but re-surface aspowerhouses in the new democratic dispensation. A second difficulty is lack ofresources: many parliamentary committees have limited funding, administrativeinfrastructure and support (such as offices, secretaries, and equipment). Thirdly,access to expertise (in-house or otherwise) is limited. In turn, this means lowcapacity for policy development or budget and operational analysis.In African Parliaments (as indeed in many elsewhere) the only in-house‘expertise’ available usually comes from retired military officers turnedpoliticians, who can hardly be considered dispassionate sources of advice.Access to outside expertise (realistically the more important source of expertise)is limited by the absence of specialized researchers and research institutes inmany African countries. Fourth, Parliaments tend to have poor or non-existentinstitutional links with the armed forces, and this makes it difficult to extractinformation (most legislatures lack independent access to information). Finally,most African countries have a tradition of executive dominance in the area ofsecurity, perhaps most pronounced in the French system, where defence andsecurity are specified in the constitution as the ‘reserved domain’ of thePresidency and parliaments often see no reason why they should interfere.Most executives (particularly those who are ‘in’ with the military, and regardcontrol of the security services as their trump card) are reluctant to cedeappropriate control to their legislatures.17.17 Disputes between the legislature and the executive over turf are not uncommon(though less common than conflicts between government and opposition). An exampleis the case of Kenya. In 1997, the Public Accounts Committee of the Parliament sought 29
  • Even in countries where these difficulties have been overcome (perhaps only SouthAfrica,) provisions do not exist for separate legislation governing the different securityforces. Yet, apart from the constitution and subsidiary legislation, there are traditionaland informal institutions that can contribute to a well-governed security sector. In manysocieties in Sub-Saharan Africa, traditional leaders were allowed to continue to practicecustomary law for issues pertaining to “private law” at the same time as they wereexpected to dispense colonial law in the area of “public law.” Today, elements ofcustomary justice either co-exist with or have been incorporated into formal justicesystems in many countries. This is particularly important in rural areas, where formaljustice systems are often not present. Additionally, a range of informal justicemechanisms has developed in urban areas. Some are based on modified traditionallaw structures and procedures and focus on problem-solving or alternative disputeresolutions. Others are established by non-governmental organisations and focus onarbitration and conflict resolution. These traditional and informal mechanisms are extremely important because ofnumerous limitations on formal systems of justice in Africa. Inadequate resourcesreduce the reach of the formal systems and limit severely access to justice. Formalsystems are also inaccessible to many Africans due to language problems, poverty andthe absence or inadequacy of legal aid. Another important factor has been thedisconnect between African cultural and social practices, which favour restorative andcompensatory justice, rather than the adversarial and retributory nature of formaljustice systems. In consequence, traditional and informal justice systems are receivingrenewed attention, especially ways of marrying them to formal systems. Some of themechanisms that are compatible with both formal systems of justice and customaryjustice are: community service schemes, police-community liaison groups, communitysafety forums (which extend beyond the police to other elements of the criminal justicesystem and relevant local government bodies), and calculating fines according to anindividual’s capacity to pay. Box 3-2 describes the key characteristics of a system ofjustice that is accessible for all citizens.to investigate the disbursement and use of the armed forces budget, but was preventedfrom doing so by the government. See also the recent (July 2000) debate in the Ghanaparliament on the regional composition of the armed forces. During the debate, on amotion seeking to put in place guidelines on regional (ethnic) distribution of recruitment,the Deputy Minister of Defence accused the legislature of trying to ‘hijack’ the powersand functions of the executive---even though the proposals would have been alegitimate aspect of the policy and oversight functions of the Parliament. 30
  • Box 3-2. Criteria for Accessible Justice Justice is accessible when:  It is dispensed in or close to the individual’s community.  It is affordable for ordinary people.  Procedures are simple but fair and consistent with cultural expectations.  It is fair and perceived as such by disputants and their families, but does not reinforce historic biases against traditionally marginalized groups such as women and youth.  It is dispensed in the language of the disputants.  It produces outcomes that emphasise community-building, skills transers, reconciliation, restoration and compensation.  It is dispenses rapidly, to avoid animosities becoming entrenched.  The timing of judicial proceedings take into account the livelihood needs of disputants. Source: Wilfried Schärf, “Report on the Proceedings of the Consultative Group Meeting on Access to Justice and Penal Reform in Africa, 18 – 20 March 1999,” Some customary law systems may, however, contain elements that areincompatible with formal law, as well as with the principles and norms underlyingdemocratic governance. In March 2002, for example, the Nigerian minister of justiceexpressed the opinion that some of the penalties imposed by strictly interpreted Shariamay be unconstitutional. He urged governors of the twelve Nigerian states that haveadopted strict Sharia laws to revise them so that they are consistent with the Nigerianconstitution, which prohibit the institution of a state religion, the violation of fundamentalhuman rights through inhuman and degrading treatment, and contravention of theequality of all before the constitution. The justice minister argued: "A Muslim should notbe subjected to a punishment more severe than would be imposed on other Nigeriansfor the same offence. Equality before the law means that Muslims should not bediscriminated against." At independence, Nigeria’s legal system integrated Sharia,customary and Western legal traditions, but the strict application of Sharia never gainednational acceptance. With the restoration of civil rule in 1999, that barrier has beenunilaterally broken by some state governments, setting the stage for disputes betweenthe states and the federal government as well as increased violence between differentreligious groups.18Implementing Legal Frameworks Next to be considered are the structures that are in place to ensure theimplementation of the legal arrangements, and how strong the structures are towithstand the pressures of reform. Again, in many developing societies, these structuresare the Law Courts. But as noted in the last section, the extent to which the courts areto handle this important assignment is questionable. There must thus be efforts toensure the implementation of legal stipulations concerning the Security Sector and itsreform. However, as noted earlier, there are some legal arrangements that are based18 United Nations, Office for the Coordination of Humanitarian Affairs (OCHA), Integrated RegionalInformation Network (IRIN), “Nigeria: Focus on Constitutional Crisis Caused by Islamic Law,” April 3,2002, www.reliefweb.int 31
  • on traditional institutions. Although in most cases there are already institutions to ensureimplementation, many of these had become weak. [NB: REWORK.]3.3 TRANSPARENCY IN THE SECURITY SECTOR Governments by nature prefer security sectors that are opaque to the generalpublic given the secrecy that often surround war and issues of security even inpeacetime. The narrow definition that restricts security to its military dimensionreinforces the notion that knowledge about security should be restricted and theactivities of the security sector should not be made transparent. The general public,however, has not been the only group to feel this lack of transparency. Up to the 1990s,African security services were widely considered an alternative and independent powercentre rarely subject to scrutiny by government and parliament. Information on securitypolicy, its implementation, and its financing has frequently been tightly held, with criticalinformation being kept from individuals and groups within government that, according toprinciples of democratic governance in the security sector, would be expected to haveboth the right and the need to be informed. This has prevented both the propermanagement and the proper oversight of security agencies. [See below for discussionof oversight in the security sector. The principles of democratic governance in thesecurity sector are found in Box 3-3.] Transparency is, however, the fundamental ingredient in accountablegovernance. Without access to information about the formulation and implementation oflaws and policies, it is impossible to hold any public servant to account. While it is truethat some degree of confidentiality is necessary in the area of national security,problems arise when the need for confidentiality in some areas of the military sector isused to justify a reduction in opportunities for scrutiny by appropriate management andoversight bodies, as well as the population at large. National security-related issues –especially those relating to military intelligence - are sensitive in all societies. Evenlong-established democracies retain varying degrees of confidentiality in the realm ofnational security. It is important to be clear, however, about the distinction betweenconfidentiality and the lack of public scrutiny. It is possible to retain a high degree ofconfidentiality in highly sensitive areas without compromising the principle of publicaccountability. [Accountability in the security sector is discussed below.] 32
  • Box 3-3. Key Principles of Democratic Governance in the Security Sector Over the last two years, there has been an increasing effort on the part of African public sector officials, scholars and civil society activists to begin to develop a set of principles of oversight and governance in the security sector that are applicable across the board. Some of the key principles that have become pivotal in the quest for effective oversight of the security sector can be summarized as follows: • Security sector organizations, particularly in the security forces must be accountable both to elected civil authorities, established independent oversight agencies and to civil society; • Security sector organizations must operate in accordance with the international law and domestic constitutional law; • Information about security sector planning and budgeting are widely available, both within government and to the public, and a comprehensive and disciplined approach to the management of security sector resources is adopted; • Civil-military relations are based on a well-articulated hierarchy of authority between civil authorities and the defence forces, and on a relationship with civil society that is based on the respect for human rights and a culture of civility; • Civil authorities have the capacity to exercise political control over the operations and expenditure of the security forces and civil society has the capacity to monitor the security forces and provide constructive input to the political debate; • An environment exists in which civil society can be consulted on a regular basis on security policies, resource allocation, and other relevant issues; • Security-force personnel are adequately trained to discharge their duties in a professional manner consistent with the requirements of democratic societies; • Fostering an environment supportive of regional and sub-regional peace and security has a high priority for policy-makers. Meeting these benchmarks poses a significant challenge to current African regimes. Divergent trajectories of transition have produced a wide assortment of post-transition political configurations on the continent – some complementary and progressive, others contradictory and worrisome. This necessarily inhibits generalisation. Nevertheless, it is clear that most African countries are committed to the development of best practice mechanisms to support sound security sector governance. Source: These principles were first published in UK Department for International Development, Security Sector Reform and the Management of Military Expenditure: High Risks for Donors, High Returns for Development, Report on an International Symposium Sponsored by the UK Department for International Development, London, February 15-27, 2000, http://www.dfid.gov.uk/Pubs/files/ssrmes_report.pdf, p. 46. It is also important to be clear about what is being held in confidence and why itis considered sensitive. War plans should be held in confidence. That the armed forcesare regularly exceeding their budget allocations, are purchasing expensive militaryequipment with scant attention to need or ability to maintain this equipment, or areengaged in illegal, off-budget activities are clearly sensitive matters, but should not beheld in confidence. A highly non-transparent security sector provides the perfect coverfor off-budget transactions and the diversion of resources into private hands. When asignificant portion of a country’s security expenditure occurs off-budget and is fed by off-budget revenues, not only are core principals of fiscal accountability violated. It is alsohighly likely that the operational capacity and readiness of the security forces will sufferand that the security forces will not receive value for money. 33
  • Processes associated with governing the security sector need to be transparentfrom start to finish. The manner in which the legal arrangements guiding the securitysector are arrived at is particularly important. That process can set the tone for thesubsequent implementation of those laws. In many African countries, constitutions donot represent the will of the people and were not arrived at through popular consensus.There are countries where the constitution was forced on the population by an outgoingmilitary administration, with minimal representation from the population (for example,Nigeria). In other countries, the government in power has altered the constitution sosignificantly that it no longer has a semblance of the people’s will (for example,Zimbabwe). It is equally important that legislation governing the different security bodies isarrived at in a transparent and participatory fashion. Since constitutions typically onlyoutline the relationship between the civil authorities and the security forces, the manydetails that govern the actual operation of the security sector must be hammered outseparately in national legislation approved by the parliament. Even the South Africanconstitution, which was created through a highly participatory process, only outlines thecore responsibilities of the civil authorities and specifies: “The security services must bestructured and regulated by national legislation.”19 South Africa has produced policypapers, or “White Papers,” for defence, intelligence, safety and security, participation ininternational peace missions, and defence-related industries since 1994. Non-governmental experts have contributed to most of these, and several have been widelyconsulted with all relevant stakeholders prior to being finalised. (See Box 3-4.) Suchconsultation lengthens the process of producing legislation, but produces a strongerproduct and greater buy-in on the part of key stakeholders. [RW: Additionallegislation? Defence Act? Police Act? etc. or do white papers cover this?] Important as they are, consultative processes are only one part of the solution tothe problem of transparency. There needs to be a conscious effort to ensure as wide adissemination of basic legal documents governing the security sector as possible.Neither constitutions nor subsidiary national legislation are properly disseminatedamong the population. Very few African countries translate their national constitutionsinto local languages. In situations where the population did not have much input in theformulation of the constitution, they are further disadvantaged by not knowing what thedocument says about how they are to be governed. Additionally, little or no effort ismade to ensure that sufficient copies of the constitution are produced for distribution tothe population. Copies of national constitutions, often printed by the Government Press,are sold to the population instead of being distributed free. Members of the armedforces often do not have access to the document that is supposed guide their role anddefine their responsibilities. As a result, populations are not familiar with the legalframework for the security sector – its roles, its responsibilities, remedies forinappropriate actions on the part of security forces and so on. To ensure that soundgovernance of the security sector develops, there should be effective processes ofdisseminating the legal arrangements governing the process, and all the segments of19 Constitution of the Republic of South Africa, Act 108 of 1996, Chapter 11, Section 199 (4),http://www.concourt.gov.za/constitution/const11.html#199 34
  • the society, including school children, are properly informed. In this way, pressures willbuild for accountable government, including effective oversight processes. [THE BOX BELOW NEEDS TO BE RETYPED SO THAT IT CAN BE MOVEDWITHOUT COMPLETE LY DESTROYING THE PAGINATION OF THE ENTIREDOCUMENT.] 35
  • Box 3-4. Consultative Process for the South African White Paper on Safety and Security“The Minister released the final Draft White Paper for public consultation after Cabinet approval in May1998. Extensive consultation was undertaken with key stakeholders, role-players and civil society in thefollowing concurrent phases:“1. Provincial public hearings Public hearings were held in each of the provinces to ensure that the final policy recommendations of the White Paper reflected the views of provincial stakeholders, role-players and the public.“2. National hearing rd th A national hearing was held over the 3 to 5 August 1998 in Parliament. A number of submissions were made, and provincial reports on the submissions received from the public hearing process were presented. Joint meetings of the National Portfolio Committee on Safety and Security and the National Council of Provinces Committee on Security and Justice deliberated on the issues raised th st through the public consultation process on the 18 and 21 of August. These deliberations informed the final drafting of the White Paper.“3. Consultation with critical audiences Extensive consultation with critical audiences was undertaken as outlined below:• A Local Government Conference was held on 24 July 1998 at which local government initiatives related to crime prevention were reviewed, experiences on the safer cities projects shared and the interventions outlined in the White Paper discussed.• Meetings were held with most of the political parties in Cape Town to discuss relevant issues raised by the White Paper.• A workshop was held with the National Crime Prevention Strategy partners on issues relevant to crime prevention as outlined in the White Paper.“4. Internal consultation process• The South African Police Service circulated the Draft White Paper extensively within their structures, and received numerous submissions. A consolidated report on these submissions was compiled by the Divisional Commissioner: National Management Services and sent to the Secretariat.• Valuable meetings were held with most of the national government departments.• The key trade-unions relevant to safety and security were also consulted.“The final White Paper was presented to the Cabinet Committee for Safety and Intelligence prior to theCabinet meeting of 9 September 1998 when the White Paper was approved. Parliamentary debates onthe White Paper were held during September 1998.“A White Paper Conference was held on 11 September 1998 at which a report back on the submissionsand how they were incorporated was presented.“A user friendly booklet is being developed which will explain the policy shifts contained in the WhitePaper and what it means for the stakeholders and role-players in safety and security in South Africa.”Source: South Africa, Department of Safety and Security, White Paper on Safety and Security, "InService of Safety," 1999 – 2004, September 1998, www.gov.za/whitepaper/1998/safety.htm#drafting. 36
  • 3.4 SECURITY-SECTOR ACCOUNTABILITY The process of accountability aims to ensure that public officials are responsiblefor the exercise of the authority accorded to them through the constitution or other laws.Accountability can be either direct or indirect. Direct accountability in the security sectorrequires that members of the security forces answer directly to all or some portion of thepopulation of a country. Indirect accountability holds politicians and bureaucratsaccountable for the actions of the security forces by defining a set of democraticgovernance criteria against which the security forces are to be measured. Most securitysector accountability is indirect. There is some direct accountability in the criminaljustice sector with police commissions, police monitoring groups, police-communityliaison groups, community safety fora and the like. There are two components of accountability: answerability and enforceability.The security forces must answer to those bodies legally mandated to oversee theiractivities. However, unless there is some means to enforce breaches of behavior, thesimple fact of explaining their behavior does not mean that the security forces willactually alter that behavior. In many African countries, the security forces do not feelthat they have to answer to any civilian – in or out of government – even when there islegislation requiring them to do so. Their sense of impunity derives in large part fromthe fact that they are not sanctioned when their actions contravene the law or if theyrefused to explain their actions to the relevant civil authorities. Until there is society-wide acceptance of the notion that the security forces are subordinate to the civilauthorities, are obliged to explain their actions to the civil authorities and civil society,and are subject to sanctions for inappropriate actions or inadequately explaining theiractions, there will be no accountability in the security sector. It is also important to consider the legal arrangement for punishing those whocommit offences relating to the security sector. Although there will be further discussionof this in other sections of this handbook, it should be mentioned here that there mustbe clearly laid-out procedures forpunishment. This will bring in other Box 12. Legal and Cultural Norms Relatingsegments of the security community, to Security Sector Accountabilityespecially the police and the judiciary. The Legal Normsmost important issue to note here is to  Universal Declaration of Human Rightsensure that those accused for any-  International Covenant on Civil and Politicalsecurity related offence as indeed, any Rightsoffence at all, is adequately represented  UN Code of Conduct for Law Enforcementand the trial open. This should not only Officials (UNGA Res 34/169, 1979)  Geneva Conventions of 1949be for the civilian population bur also forthe military. The practice in many Cultural Norms  Separation of police and military functionsdeveloping countries, especially in West  Principles of democratic governance in theAfrica, for members of the Armed Forces security sector (see Box 11)accused of military-related offences to be  African Charter of Human & Peoples Rightstried through special military laws will  ECOWAS Protocol on Good Governance, 200have to be examined. All those accused  OAU Resolution denying recognition to governments coming to power through militaryshould be tried in open courts and they coups [FIND EXACT- Algiers Declaration]should be allowed the freedom of 37
  • selecting their own lawyers from either the military or the civil population. In order to strengthen the accountability of the security forces, it is necessary tostrengthen both norms and institutions. In doing so, it is important to distinguish amongdifferent levels of accountability. First, there is ideal-type accountability, which isenshrined in norms and principles (Box 12). Difficult to achieve in practice, ideal-typeaccountability nonetheless establishes goals that every government should strive toattain. Second, there is legal accountability, where a country’s laws seek to translateprinciples and norms into legally binding requirements for members of government, civilservants, and members of the security forces. There are many paths to achieving theobjectives enshrined in norms and principles. The precise form that a country’s policies,laws, and structures take must be rooted in that country’s history, culture, legalframework and institutions. The key point is for national laws to reflect the norms andprinciples. Finally, there is operational accountability – accountability as it is actuallypracticed. Operational accountability reflects a range of informal relationships andmethods of achieving goals, along with – it is hoped – international norms and principlesand national law. While informal relationships are and will remain important in allenvironments, they must operate inaccordance with the country’s legal Box 13. US Congress Wary of “Blank Check”framework and international law. Request from the President “Congress is unlikely to write President Bush a The challenge is to align national blank check for $10 billion to help pay for the warlaws with basic principles and norms on terrorism, a leading lawmaker said Friday.and to progressively adjust “The White House has asked Congress for a $10“accountability on the ground” to the billion ‘war contingency’ to cover unspecifiednational legal framework and the guiding Defense Department anti-terror efforts in fiscalprinciples enshrined in the international 2003, part of a planned $48 billion increase to thenorms. As with all broad policy defense budget. To provide the funds without stipulating how they would be spent would cedeobjectives, it is necessary to identify some of Congress power of the purse.reasonable steps along the way toward “Rep. Jerry Lewis (R-Calif.), chairman of theachieving these goals. While reaching House Appropriations defense panel, told athese goals may seem daunting in view Defense Week Media Breakfast that he wasof actual practice in a country, it is willing to allow the administration flexibility in hownonetheless important to have them as it spends the money—but not an open-ended appropriation….an objective. One of the clear lessons of “Lewis said that without specific guidelines, thethe past is that when problems in the money could easily be siphoned off into othersecurity sector are approached in a areas of the Pentagons budget.piecemeal manner, without reference to "’Ten billion dollars just sitting there is a prettybroad objectives or underlying structural ripe target,’ he said….”weaknesses, accountability in the Source: Ron Laurenzo, “Top Legislator Wary ofsecurity sector has generally not Contingency Fund,” Defense Week, February 11,improved significantly. Indeed, a focus 2002, p. 1.on short-term “solutions” that ignores thecore problems can actually aggravatethose problems. 38
  • It is also important to understand that even long-established democracies canimprove the amount of information that they provide to their citizens and need to beconstantly vigilant on issues of accountability (Box 13). Developing and protecting asystem of accountability is a continuous process. Civil society can play an important role in promoting accountability of the securitysector. Groups such as the media, human rights organisations, and security policyanalysis organisations can track behavior, draw attention to deviations from nationaland international law and international good practice, and make suggestions for ways ofimproving accountability. Civilians also serve on police commissions, police-communityliaison committees, and other formal bodies. Non-governmental bodies, includingcommunity groups, may monitor the activities of the police and other security forces. Asin all sectors of government, an engaged public can have a positive impact on thequality of accountability. [CAN WE FIND NON-NIGERIAN, NON-SOUTH AFRICANEXAMPLES TO CITE?] I have inserted a Ghanaian example below In Ghana, a policy and research institution has been central to the improvementof governance in the security sector. The African Security Dialogue & Research(ASDR) started in 2000 with the coordination of a series of dialogue on the securitysector, bringing together security sector practitioners, defence ministry bureaucrats,parliamentarians and civil society actors. The Government of Ghana recently launchedtwo security sector governance initiatives: a National Police Reform Programme fundedby the UNDP; and a Performance Improvement Programme (PIP) for the Ministry ofDefence (funded by DFID. Both programmes are coordinated by ASDR with provisionfor expanded dialogue between civil society, the security institutions, parliament andother state agencies, and two, a South-South Dialogue on Defence Transformationbringing in other perspectives from Africa.[SOMETHING ON PUBLIC SECTOR ACCOUNTABILITY MECHANISMS]Office of Public ProtectorAuditor-General’s Office (the Nigerian example)Anti-Corruption Commission3.5 SECURITY SECTOR OVERSIGHT The culture of secrecy that has traditionally surrounded security activities hasprevented the creation of civil oversight bodies in some countries and stymied theefforts of existing oversight bodies to operate effectively in others. Consequently, civiloversight of the security sector continues to be a work-in-progress throughout the world,including in OECD countries. 39
  • During the 1990s, African governments and publics increasingly insisted on theneed for governments to be accountable to elected civil oversight actors and a range ofindependent oversight agencies. Interest groups and citizens now strongly advocatethat constitutions must incorporate fundamental principles guaranteeing the creation,existence and practice of oversight agencies that will safeguard the interests of thepeople, mediate the excesses of the government, and help to enforce the law. Civiloversight bodies can take a variety of forms: parliament as a whole; parliamentarycommittees on defence, security, intelligence, police affairs, human rights, and publicaccounts; auditors-general; constitutional courts; anti-corruption and publicaccountability bodies; ombudspersons; and public protectors. [NB: I THINK THIS IS WHERE THE CONFUSION CAME INTO THIS. I MAKEA DISTINCTION BETWEEN PARLIAMENTARY ACCOUNTABILITY INSTITUTIONS –COMMITTEES ON DEFENCE, POLICE AFFAIRS AND INTELLIGENCE, FORINSTANCE AND PARLIAMENT EMPOWERED, INDEPENDENTLY APPOINTEDOVERSIGHT BODIES SUCH ASANTI-CORRUPTION BODIES, PUBLICPROTECTOR, CONSTITUTIONAL COURT. USUALLY THE LATTER BODIES AREEITHER ADVERTISED OR APPOINTED BY THE PRESIDENT AND PARLIAMENTONLY ENDORSES THE APPOINTMENT. IN THE PARAGRAPH ABOVE, YOU HAVEPUT THEM TOGETHER (SEE MY ITALICS ABOVE), HENCE THE REASON FORTHE CONFUSION YOU HIGHLIGHTED BELOW. IN ADDITION, THE TWO ARECOMPLETELY DIFFERENT FROM PUBLIC SECTOR ACCOUNTABILITYAGENCIES SUCH AS BUDGET MONITORING UNITS, MINISTERIALCONTRACTTENDER COMMITTEES OR DUE PROCESS/DILIGENCE INSTITUTIONS. I HOPETHIS CLARIFIES THE ISSUE] Important as these oversight bodies OF ELECTED MEMBERS OFPARLIAMENT are, the value of complementary and sometimes parallel oversightinstitutions cannot be over-emphasised. These institutions are seen, especially in civilsociety, as having the potential of becoming the major pillars on which the veryfoundations of good democratic practices rest when they are allowed to functionindependently of influence from state organs and personalities for the benefit and thecause of participation in governance by the citizenry. From South Africa to Ghana,Uganda to Bénin Republic, the principle of independent commissions as mediators or“honest brokers” occupying the realm between citizens and governments has beencentral to recent constitution-making campaigns and it has enriched the debate aboutthe quality and character of governance in these countries. [KF: I NEEDCLARIFICATION. EXACTLY WHAT SORTS OF BODIES ARE YOU SPEAKING OFHERE? CONCRETE EXAMPLE(S) PLEASE. IT’S NOT CLEAR TO ME IF YOU ARETALKING ABOUT SOMETHING DIFFERENT FROM, SAY, ANTI-CORRUPTIONBODIES OR OMBUDSPERSONS. THE SA CONSTITUTION CALLS THE AUDITOR-GENERAL, THE PUBLIC PROTECTOR, THE HUMAN RIGHTS COMMISSION‘INDEPENDENT.’ I THINK THAT THESE ARE NOT THE BODIES YOU ARETALKING ABOUT.] [NB: PLEASE SEE MY COMMENTS ABOVE] Governance structures and practices have traditionally been weakest and leastdefined in the security sector. In the past, many African states were quick to rebuff anyeffort to subject security sector affairs to public scrutiny as “undue interference in the 40
  • internal affairs of a sovereign state.” Consequently, in many states on the continent, thesecurity sector was not subject to oversight, even by the few elected parliaments in thecontinent at the time. This was partly due to the culture of secrecy that surroundedmilitary and security activities, but more fundamentally to the lack of capacity to offereffective civil oversight of security sector activities. Although the relevance of oversight institutions is no longer in doubt –( forexample, the launch of the African Union in Durban in July 2002 witnessed the adoptionof the NEPAD Declaration on Democracy, Political, Economic and CorporateGovernance whose core principles promote transparency and accountability ingovernment through the African Peer Review Mechanism) , difficulties that stem frominstitutional weaknesses pose a continuing challenge for effective governance in thesecurity sector. [USE INFO FROM NEPAD GOVERNANCE PROTOCOL IFPOSSIBLE TO DEMONSTRATE THE “NO LONGER IN DOUBT.”] In many Africancountries, this problem begins with theconstitution, which often offers onlysketchy information on the role of key Box 14. Zambian Constitutional Provisionsoversight actors. Even recently for Parliamentary Regulation of the Zimbabwe Defence Forcepromulgated constitutions are silent oncritical issues such as the role of the 102. [Parliament to regulate Defence Force]legislature in national security policy Parliament shall make laws regulating the Zambiaformulation, especially in countries Defence Force, and in particular, providing for--emerging from prolonged authoritarian • (a) the organs and structures of the Zambiarule; powers to declare war; powers over Defence Force;budget; powers of approval of senior • (b) the recruitment of persons into the Zambia Defence Force from every district of Zambia;security sector appointments; powers onthe declaration of emergency powers and • (c) the terms and conditions of service of members of the Zambia Defence Force; andhow these affect non-derogable rights; • (d) the deployment of troops outside ofprofessional autonomy of military and Zambia.access to information on all securitysector issues and the provisions on Source: Constitution of Zambia - Part VII: Defence and National Security, (As amended bymilitary interference in politics. [KF: Act No. 18 of 1996), http://zamlii.zamnet.zm/Examples please.] const/1996/const91.htm [The Nigerian constitution forexample is silent on rights that will be affected by declaration of emergencypowers and whether the parliament should merely be informed about externaldeployment of troops or have its approval sought. Like the Zambian constitutionthat you cited however, the SA constitution devotes four pages to addressconditions for emergency declaration primarily to ensure that the incumbentauthorities do not misuse these powers] Some African constitutions do, however, specify at least some of the relationsbetween the legislature and the security forces. The Zambian Constitution defines thelaws that the Zambian Parliament is required to produce to regulate the ZambianDefence Force (Box 14). The Ghanaian constitution clearly outlines the role of theGhanaian Parliament in raising revenue, preparing budgets, and tracking expenditurefor the public sector as a whole. [KF: YOU ALSO HAD INFORMATION ABOUT 41
  • GHANA AND MILITARY OVERTHROW OF GOVT AND BENIN. IT WASN’T CLEARTO ME IF ALL OF THIS WAS IN THE CONSTITUTION. NEED MORE INFORMATIONON THOSE POINTS.] [NB: THE INFORMATION ON MILITARY OVERTHROW CAMEFROM THE GHANAIAN CONSTITUTION – ALL OF IT) To be effective, oversight institutions must be able to operate without fear orfavour in their promotion and protection of transparency, accountability, integrity and thefree and fair dispensation of justice and administration. They must not be subject to thewhims or pressure of those who appointed them, even if the president and/or legislaturewield enormous power over their tenure in office. Once the autonomy of oversightbodies is in doubt, their legitimacy is also severely affected. Thus, mechanisms mustexist that provide oversight agencies with access to adequate resources for operationsso that they do not become beholden to governmental institutions under their purview inorder to be able to fulfil their mandate. The functions and powers of each oversightbody must also be clearly delineated and recognised, ideally in the constitution orsecondarily in subordinate national legislation. One means of enhancing the autonomy of oversight bodies would be for theconstitution to guarantee adequate funding through the consolidated fund. In manyAfrican countries where provisions for independent agencies exist, constitutions do notgive a constitutional guarantee on the funding of these institutions. The South Africanconstitution, for example, is silent on financing independent bodies such as the HumanRights Commission, the Auditor-General, and the Public Protector. In contrast, theGhanaian Constitution prescribes how the Ghanaian Auditor-General and his staff areto be financed (Box 15). The failure to specify how such independent bodies are to befinanced places them potentially at the mercy of the executive branch. In manycountries, the risk is that they will be treated like state-controlled commissions. [KF:AGAIN, WHICH OVERSIGHT BODIES ARE WE TALKING OF HERE? AND HOWCAN THE CONSTITUTION FORESEE ALL OVERSIGHT BODIES THAT WILL BECREATED? WHAT WOULD A BLANKET CLAUSE FOR OVERSIGHT BODIESLOOK LIKE? WOULD IT BE POSSIBLE TO CREATE NEW OVERSIGHT BODIESTHROUGH NATIONAL LEGISLATION RATHER THAN CONSTITUTIONALAMENDMENT?] [NB: PLS REFER TO MY COMMENTS ABOVE ON THE DISTINCTION.REGARDING YOUR SECOND ISSUE, YOU HAVE ADDRESSED IT ADEQUATELYBY MAKING A REFERENCE TO THE PROVISION IN THE GHANAIANCONSTITUTION IN BOX 15. THE CONSTITUTION COULD STATE IN THE SECTIONON SUCH COMMISSIONS THATTHEIR FUNDING WILL COME FROM Box 15. Financing Ghana’s Auditor-THE CONSOLIDATED FUND WHICH GeneralIS STATUTORY, NOT WHIMSICAL] “187 (11) The salary and allowances payable to the Auditor-General shall be a charge on the In practice, however, it is unlikely consolidated Fund….that the complete need for oversight “187 (14) The administrative expenses of thebodies can be foreseen at the time that office of the Auditor-General including allconstitutions are drafted. salaries, allowances, gratuities and pensions payable to or in respect of persons serving inConsequently, some oversight bodies the Audit Service shall be a charge on themay be created through national consolidated Fund.” 42 Source: Parliament of Ghana, “The Constitution,” www.parliament.gh/hmeP/ lawsproPag/theConst.htm.
  • legislation [See my point above]. For example, the Zambian constitution gives thelegislature the power to create commissions and to determine their functions andpowers. While the constitution may appear less open to being side-stepped thatsubordinate national legislation, oversight bodies that are established through theconstitution can and have been rendered ineffective by a determined executive or bythe security forces. The Constitution of Sierra Leone, for example, very clearly statesthat “The public accounts of Sierra Leone and all public offices…shall be audited andreported on by or on behalf of the Auditor-General, and for that purpose the Auditor-General shall have access to all books, records, returns and other documents relatingor relevant to those accounts.”20 For many years, the Sierra Leone military was notaudited. What is more, senior military officers regularly bypassed the ministry ofdefense and the entire budgeting process by demanding cash directly from the treasury.Although the armed forces is now subject to audit, inculcating new patterns of behaviourand expectations on the part of the armed forces will take some time and requirevigilance on the part of the country’s elected officials. [DOUBLE CHECK WHODEMANDED FROM WHOM.] As the case of Sierra Leone demonstrates, the problem is often not with theprovisions of the constitution or national legislation but with the failure of governmentand/or the security forces to accept and internalise the principles of democraticgovernance. This raises the question of leadership. The quality of leadership is crucialfor effective oversight. Heads of state and government unquestionably set the tone andethical standards for those who work in government and the public service. If the headof state chooses, for example, to undermine the judiciary, subvert the electoral process,or engage the armed forces in partisan political activities in order to remain in power, itindicates to less senior leaders that similar deviations from democratic practice may beacceptable. If, on the other hand, the head of state tolerates responsible politicaldiscourse even when it is at variance with his/her policies, accepts constitutional limitson terms in office, and refrains from politicizing the armed forces, police and othersecurity services, the norms and practices of democracy are reinforced. Yet, importantas the head of state and government are, adherence to the norms and practices ofdemocratic governance is required from a whole range of leaders: lower-rankingpoliticians and bureaucrats; legislators; civil society; and security force personnel. Theproblem of leadership is well-known in Africa and is receiving increasing attention. It isextremely important for democratic governance of the security sector that any efforts tostrengthen the quality of leadership tackle the question of the security sector. The general weakness of civil oversight of the security sector in Africa derives toa large extent from the tradition of secrecy that has protected the security sector fromscrutiny for decades. (See the section on “Transparency in the Security Sector earlierin this chapter.) The restrictions that have existed and continue to exist on access toinformation on the development and implementation of security sector budgets andpolicies both within government and more broadly to society at large means that civilianexpertise in security matters is woefully inadequate throughout Africa. This enables20 The Constitution of Sierra Leone, 1991 (Act No. 6 of 1991), “Chapter VI. The Legislature, Part VI –Finance,” para 119 (2), http://www.sierra-leone.org/constitution.html. The responsibilities of the AuditorGeneral are laid out in more detail in “The Public Budgeting and Accounting Act, 1992,” Supplement tothe Sierra Leone Gazette, vol CXXIII, no. 16, March 5, 1992, Part VI, Sections 63–69. 43
  • members of the security elite to argue that civilians are not sufficiently knowledgeableabout security issues to participate fully in security-sector decision-making. Breaking through the barriers to greater transparency in the security sector isextremely difficult. Civilians have not acquired expertise in security issues because theyhave long been told that security is a matter for the security professionals, becausethere are few opportunities for training on security-related subjects within Africa, andbecause there have more often than not been clear disincentives in terms of personalsecurity to civilian involvement in security matters throughout the African continent. Insome places, these disincentives continue into the 21st century (Box 16). Yet, withoutcivilians who are knowledgeable about security matters, it will be impossible to haveeffective civil oversight of the security sector. [This has now been put into section 4.4.] Box 16. Liberian Security Forces Silence Human Rights Activist At the end of April 2002, one of Liberia’s most prominent human rights lawyers and a well- known critic of security force violations of human rights, Tiawan Gongloe, was brutalized in police custody. Detained for questioning about a speech he gave in Guinea in March 2002, Mr. Gongloe was stripped nude and placed in a police cell where two plainclothes police officers severely beat and kicked him and threatened to kill him. Mr. Gongloe’s “crime” was to have condemned the use of violence as a means to state power during his speech outlining ways in which civil society groups could support the attainment of peace in the Mano River Union. Source: www.hrw.org/press/2002/04/liberia0426.htm and www.newdemocrat.org/other/ Gonloecivilsociety.htm Even where expertise does exist within civil society, it can be difficult for those inpublic life to benefit from it. For example, few legislators have the resources to engagein-house professionals or outside consultants, and apart from South Africa, Africancountries do not have many civilians who are sufficiently knowledgeable and in aposition to provide advice free of charge. As civil society organisations begin to addresssecurity issues and as training programmes for civilians expand, informal linkages arebeing developed in a number of African countries, especially in Southern and WestAfrica, between officials in both the executive and legislative branches and civilianexperts, but the numbers are still very low. Lack of contact between civilians andsecurity force personnel contributes to this problem. Again, there have been efforts todevelop relationships between civilians (both in and out of government) and securityforce personnel, but these should be expanded and institutionalised to the extentpossible. (Appendix 2 provides information on groups within civil society that providetraining and otherwise encourage contacts between civilians and security forcepersonnel.) Oversight capacity is limited not only by inadequate knowledge of securityissues, but also of inadequate knowledge of governing processes. For example,legislators frequently do not understand how to use the committee system effectively, 44
  • lack experience in drafting legislation, and are uncertain about the role and functioningof legislative oversight bodies. Finally, an additional means of strengthening the legitimacy of oversight is foroversight bodies themselves to be transparent. Constant engagement with the public iskey to their success. In a situation where oversight actors lack the capacity or thedesire to publicise their work, they expose themselves to the same accusations of self-importance and arrogance that often create ill-will between government and the public.By publicizing their findings, oversight bodies can make an important contribution topublic debate on fundamental issues of democratic governance. The inquiry into the South African government’s decision to purchase certainmilitary equipment carried out by the Auditor-General, the Public Protector and theNational Director of Public Prosecutions described in Box 17 quite clearly distinguishesbetween the government’s responsibilities in the areas of defence procurement andsound procurement practice. For example, Cabinet makes the final decision onprocurement based on a variety of considerations, including relative cost and the abilityof the equipment procured to meet South Africa’s defence needs. However, as theJoint Investigation Report notes: “Ultimately, the decision about what the country canand cannot afford is one of political choice” (para 14.1.12). The choice made by theCabinet may not be popular with certain segments of the population, and they shouldhave the right to express their views on the decision. It remains the Cabinet’sresponsibility to make the decision. What is not acceptable is deviations frominternational good practice in the area of procurement such as bending procurementrules to give preference to particular contractors, for decision makers to profit from theprocurement process or inadequate needs assessments. In the case of the StrategicDefence Procurement process, none of these problems were found to have influencedthe final outcome of the process. It is nonetheless important for problems such as theseto be recognised and addressed. It is also important for the public at large tounderstand that these problems exist, so that they can press the government for greateraccountability in subsequent procurement exercises. 45
  • Box 17. Overseeing the South African Strategic Defence Procurement Process One outcome of the South Africa Defence Review was the decision to procure a sizable amount of new military equipment. The procurement process was completed in July 1999. Due to the complexity of the procurement process, the Defence Audit Centre of the Office of the Auditor- General decided that a special review should be carried out, rather than a standard audit. Once completed in September 2000, this special review was the subject of hearings and other discussions within the Parliamentary Standing Committee on Public Accounts (SCOPA). SCOPA subsequently suggested a joint review of a number of issues relating to the procurement process by the Auditor- General, Public Protector, National Director of Public Prosecutions. This joint investigation was carried out between November 2000 and November 2001. The joint investigation concluded: “No evidence was found of any improper or unlawful conduct by the Government.” At the same time, it did identify a number of “irregularities and improprieties” in the process. For example: • “In view of the magnitude and extent of the SDP procurement, the time allocated for each evaluation and execution was insufficient to ensure that it was done properly and efficiently” (para 14.1.5). • “The decision to allow bidders for the Corvette programme to supply information after the offers were submitted constituted a deviation from properly procurement practice” (para 14.1.11). • “Proper evaluation procedures were not consistently and diligently applied and a proper audit trail was not established throughout the procurement process” (para 14.1.16). 2 2 • “ADS was given the opportunity to lower its inflated tender … to just below that of C I over a 2 2 period of more than a month. C I was given a maximum of four days to submit its tender (para 14.1.20).” The report concluded with a series of recommendations designed to overcome these and other problems identified in the course of the joint investigation. The entire report and the executive branch response are available to the public. Source: “Joint Investigation Report into the Strategic Defence Procurement Package,” www.gov.za/ Projects/procurement/invesigationreport.htm.[KF: I AM A LITTLE UNCERTAIN ABOUT THE FOLLOWING PARAGRAPHS. ONEPROBLEM IS THAT I STILL NEED TO UNDERSTAND EXACTLY WHAT YOUDEFINE AS ‘INDEPENDENT COMMISSIONS.’ I ASSUME THEY ARE NOT THEBODIES REFERRED TO IN THE SA EXAMPLE ABOVE, SINCE THESE CLEARLYARE MANDATED AND EMPOWERED TO ACT INDEPENDENTLY OF BOTH THELEGISLATURE AND THE EXECUTIVE. THEY ARE APPOINTED BY THEPRESIDENT BASED ON RECOMMENDATIONS FROM THE LEGISLATURE. THUS,YOUR COMMENTS IN THE 4TH PARA BELOW ON BODIES THAT ARE NOT‘LEGISLATIVE’ BODIES BEING PARTICULARLY PROBLEMATIC DOESN’T SEEMTO HOLD HERE.PERHAPS THERE IS A POINT TO BE MADE ABOUT ABOUT EXECUTIVECONTROL, BUT I THINK THAT IT MUST BE MUCH SHARPER AND LINKEDDIRECTLY TO SECURITY SECTOR ISSUES. MOSTLY, HOWEVER I THINK THAT 46
  • THE PROBLEMS YOU ARE DESCRIBING ARE PROBLEMS THAT WILL NOT BEELIMINATED BY WRITING BETTER LAWS OR PUTTING CLAUSES INCONSTITUTIONS. I THINK THAT THEY ARE PROBLEMS OF POLITICALCULTURE, AND THAT ALL COUNTRIES FACE THESE PROBLEMS TO GREATEROR LESSER DEGREE. MOST AFRICAN COUNTRIES OBVIOUSLY FACE THEM TOA GREATER DEGREE. WE HAVE TO BE QUITE CLEAR ABOUT WHERE THEPRIMARY PROBLEM LIES, IN MY VIEW.[NB: FROM THE EXPLANATIONS I HAVE NOW GIVEN ABOVE, I AM SURE MYPOINT IS CLEAR. I DO NOT HOWEVER DISAGREE THAT WE SHOULD RELATETHIS TO THE SECURITY SECTOR MORE SPECIFICALLY. FOR EXAMPLE, FORTHE FIRST TIME IN YEARS, NIGERIA’S ACCOUNTS WERE AUDITED ANDRELEASED TO THE PRESS AND THIS GENERATED SO MUCH FURORE IN THECOUNTRY BECAUSE THE GOVT. SAID THE AUDITOR GENERAL OUGHT NOT TOHAVE MADE THE REPORT PUBLIC. WHAT WAS INTERESTING WITH THEEXTENSIVE REPORT IS THE FACT THAT IT ASKED QUESTIONS THATNIGERIANS NEVER BELIEVED ANYONE COULD ASK OF GOVT– INCLUDINGQUESTIONS ABOUT DEFENCE EXPENDITURE AND THE GOVT WAS PRAISEDFOR MAKING THIS POSSIBLE, BUT IT WAS ALSO ATTACKED IN THE MEDIAFOR THE ATTEMPT TO GAG THE AUDITOR-GENERAL. SHOULD WE INCLUDETHIS EXAMPLE AS WELL AS THE DUE PROCESS CHECK IN THE BUDGETMONITORING OFFICE. THESE ARE TWO GOOD EXAMPLES THAT I HAVE SEENAROUND HERE IN RECENT TIMES. PLEASE REWORK SECTION TO SUITPURPOSE] The fundamental concept of independent commissions is that they will act associetys watchdogs in seeking information, justification for government actions,oversight and enforcement. Although their right to get an answer is not oftenquestioned by those in authority, that right does not always extend to the right to makethe answer public. Neither are oversight agencies empowered to act independently ofthe executive arm of the state, of the legislature or other sectoral interests that mightexist and to seek the enforcement of the law since they often lack prosecutorialauthority. Typifying this negation of a fundamental principle of such oversight institutions ofaccountability is the elaborate provision on the Code of Conduct Bureau, which hasbeen in Nigeria’s 1999 constitution. This provision empowers the Bureau to demanddeclaration of assets by public officials elected or appointed to office. It is theresponsibility of the Bureau to ascertain the veracity of the claims made in thesedeclarations. An enforcement institution with prosecutorial authority, the Code ofConduct Tribunal, is also entrenched in the constitution with the powers to punish. Theirony is that the assets declared cannot be made public unless the declarant chose tovoluntarily make public, hence the opportunity to expose known cases of corruption islimited. A recent attempt by a civil society organisation, the Media Rights Agenda, tochallenge the secrecy surrounding asset declaration was dismissed by a High Courtjudge in June 2001. Ironically, in order to tackle the inability of the Code of ConductBureau to address the unrelenting problem of corruption in government and seeing thefutility of using the constitutional provisions, the civilian government set up an Anti 47
  • Corruption and Public Accountability Commission with extensive powers outside of theConstitution and often in conflict with the provisions of the Code of Conduct Bureau.Instead of reinforcing the Constitutional provisions, the new body has rendered it largelymoribund and the two are now engaged in an unnecessary turf battle. Meanwhile theasymmetry between the extent of corruption in the polity and the culprits brought tobook continue to be disproportionate and this is one reason why clarity is necessary inthe role and functioning of oversight agencies.Oversight Institutions and the Challenge of Independence While Oversight Institutions are gaining greater prominence in countries likeSouth Africa, Botswana and Uganda – where some landmark cases have promotedpublic interest law and judicial activism and led to changes in the Constitution, othersreflect a more precarious situation. Indeed, oversight agencies face a serious challengeof relevance and legitimacy in many countries where they are in operation – primarilybecause they are not even constitutional bodies. The challenge of legitimacy is not just one of operations and legal jurisdiction, butalso one of conceptualisation. Conceptually, oversight agencies, especially where theyare not ‘constitutionally entrenched’, would appear to constitute a contradiction interms of the accountability of elected authorities and personalities to all powerfuloversight institutions with appointed officials tasked with ‘supervising’, ‘monitoring’and/or ‘regulating’ their powers is inherently seen to be ‘undemocratic’. This is more soin situations where the extra-parliamentary oversight institutions are not accountable toparliament and do not derive their legitimacy from the parliamentary branch ofgovernment. The executive branch sometimes utilises the establishment of specialcommissions that are not accountable to parliament as a means of dodgingparliamentary scrutiny especially in the security sector. Even where such oversightinstitutions account to parliament, politicians have argued that it is a surreptitious way ofpower brokerage by those who could not face the heat of electoral politics. In many ofthe countries in question, the view that the checks and balances provided by thecreative tension among the three branches of government – the executive, legislatureand the judiciary - is adequate is prevalent even though many executive branches ofgovernments in Africa do not always recognise the powers of elected representativesnor the judiciary to regulate their power or question their actions as already indicatedabove. Hence – the question of “who guards the guardians” is very central to therelationship between elected officials and members of oversight agencies. In somecountries, appointed members of oversight agencies have political party affiliation andthis casts doubt on their independence and objectivity. It is not uncommon for oversightinstitutions to be used in the pursuit of personal agenda and therefore overstep theirbounds, promote political viewpoints or seek to embarrass elected authorities throughbiased and partial judgments. While there may be objective reasons for party political affiliation in say electoralcommissions, reasons largely informed by the need to reflect the various tendencies inplaces where trust has completely broken down – often the practice in post conflictsettlement agreements, this shouldn’t result in the paralysis of such oversight 48
  • institutions if the terms and conditions for such arrangements are clearly worked outbefore hand and shared with the public. Transparency therefore holds the key toensuring that the actions of such a body are not perceived to favour one party to thedetriment of the others. Partisan political or ethnic affiliations become an issue when accountabilityagencies confuse their roles and responsibilities with that of the executive branch orlegislative committees. This encroachment into jurisdiction that is often undefined butwhich appears outside of the realm of these institutions has been a key source ofproblems especially in maturing democracies with a great deal of potential for reversals.Yet, holding power accountable should not imply determining the way it is exercised;neither should it aim at eliminating discretion through stringent bureaucratic regulation. One way of addressing these institutional challenges is by defining differentlevels of accountability – governmental, legislative, bureaucratic, judicial, electoral andinternational and deciding early a clear code of conduct or behaviour for those involvedin independent oversight institutions that are constitutionally entrenched and ensure thatthey are placed to some degree within the parliamentary oversight system, that theappointment process is transparent and/or that some members be elected from thepublic. In addition, members of oversight institutions, for example, should at theminimum be expected to:• promote the principles of natural justice; promote and protect human rights;• act in an unbiased and impartial manner; not unfairly discriminate against any member of the public on account of race, gender, ethnic or social origin, colour, age, disability, religion, political persuasion, conscience, belief, culture or language;• avoid the use of the oversight institution to which s/he belongs to unfairly promote or prejudice the interests of any person, political party or interest group;• avoid the use of such bodies to persecute individuals on the basis of political persuasion;• promote sound, efficient, effective, transparent and accountable administration in the course of his/her official duties shall report to the appropriate authorities, fraud, corruption, nepotism, maladministration and any other act which constitutes an offence, or which is prejudicial to the public interest• avoid the use of or disclose any official information for personal gain or the gain of others;• execute his/her duty in a transparent and accountable manner;• uphold the integrity of the constitution.(In a number of cases, many of these institutions actually contradict, rather than reinforce the fundamental tenets of the constitution.)[KF: SOME OF THESE ARE IN SOME CONSTITUTIONS. WE NEED TO THINKHOW TO PRESENT THIS.] [NB: MY SUGGESTION IS THAT WE BOX THEM SINCEWE NEED TO HIGHLIGHT GOOD PRACTICE EXAMPLES AND PRINCIPLES] 49
  • Summary of Main Points[NB: PLEASE LOOK AT WHAT I HAVE DONE BELOW. INSTEAD OFCAPTURING THE ARGUMENTS HERE, I HAVE PROVIDED A MATRIX BELOWHIGHL;IGHTING WHAT WE ALREADY HAVE IN THE NARRATIVE, BUT WITHILLUSTRATIVE EXAMPLES OF WHAT WE MEAN. OTHERWISE, IF YOUDON’T THINK IT IS APPROPRIATE HERE, WE CAN USE IT AS A SEPARATEAPPENDIX AND STILL SUMMARISE THE CHAPTERS.] 50