Processes and mechanisms of security sector transformation


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Processes and mechanisms of security sector transformation

  1. 1. PROCESSES AND MECHANISMS OF SECURITY SECTORTRANSFORMATION (Kayode Fayemi & Rocky Williams) Good governance . . . means much more than democratisation in a formal political sense. Another very important aspect of it is the reform of public services -- including the security sector, which should be subject to the same standards of efficiency, equity and accountability as any other public service. Kofi Annan, October 1999IntroductionThe changes in the security sector in post cold war Africa are occurring within variedpolitical contexts of ‘consolidating democracies, lapsing or stalled democracies,authoritarian or military dominated states, transitional democracies and conflict tornsocieties’ (Luckham, 2001), with their own local dynamics and challenges, andincorporating rather different prospects for the development of democratic norms andcontrols. In consequence, security sector changes cannot be treated as an independentset of variables or a set of technical and administrative arrangements thatautomatically flow from every political reform process and the outcomes do notalways reflect stability and predictability. Although there is not always a teleologicalrelationship between political reform and security sector reform partly because of theunique nature of political reform in which power reconfiguration, rather than politicaltransformation is key, it is our contention that given a set of universal principles thatare responsive to particular country setting, it is still possible to generate an elementof predictability even in the variegated trajectories of outcomes. Hence, while we seeSSR as part of complex political processes – processes that are expressions ofinherently political institutional relationships that are not given nor generalized, ourattempt is to isolate common principles that are helpful to change agents even in thesehighly contested terrains..If security sector transformation process is to derive salience from a complex politicaland security environment, a number of factors are worth examining in order toilluminate our understanding of the issues. These include, but are by no meanslimited to: (a) the political, historical, economic and institutional shifts or ‘crisis’triggering transformation; (b) the nature of the political transition (is it holistic orpacted) and the impact of transition politics on the security sector; (c) specific ways inwhich security challenges are addressed in constitutional terms; how, for example, hassecurity sector reform been reflected in the post transition constitutional provisions totake account of erstwhile lapses; what provisions are made for legislative oversight;use of emergency powers and presidential decrees, role of independent extra-parliamentary commissions; ombudsperson and the judiciary in security sectortransformation, and to what extent is access to information on the security sectoravailable and guaranteed, rather than random and privileged?; (d) the quality of theemergent political leadership, its legitimacy and the perception of its actions; (e) 1
  2. 2. feasibility of policy prescriptions introduced for security sector reform and the extentto which the policy prescriptions guarantee institutionalised democratic controlwithout undermining internal autonomy and professionalism within the securitysector; (f) the nature of civil society involvement in democratic governance of thesecurity establishments and how this affects the complexity of civil-security relations;(g) the regional character of conflict and security sector reform agenda and (h) thenature and content of international assistance in the reform agenda.1. Democratic Governance & the Security Sector in AfricaTracing the varying trajectories of democratisation in Africa in the last decade, it ispossible to suggest that significant strides have been made in the upholding of rules-based governance. Yet, it may be premature to speak of democratic governments if bythis we mean the formal end of authoritarian structures, the strengthening of statebuilding projects and a break with the erstwhile pattern of rights abuse, conflictexacerbation and militarism of the decision making processes. It remains one of theparadoxes of Africa’s decade of democratisation that whilst colonialism, followed byneo-colonialism and cold war geopolitics provided a grid that upheld statehoodthroughout the continent with virtually all African countries establishing some degreeof empirical stateness: juridical boundaries, armies, physical and socialinfrastructures, and state and single party bureaucracies – albeit in an authoritarianmanner, the upsurge in democratisation also became intertwined with the fracturing ofAfrican states and its security apparatuses in the 1990s.Beginning in the mid 1980s in the wake of structural adjustment programmes, asregimes came under increasing pressure to open their political systems to democraticcontestation and to transform their patrimonial economies into market systems, theirfragility as states were simultaneously exposed. Given the centrality of the securitysector in the entrenchment of the African state during this period, the transitions todemocracy in several countries also exposed the soft underbelly of the African stateand demystified the invincibility of the security sector with grievous implications. AsEboe Hutchful correctly captured: ‘the decade of the 1990s - which saw the rise ofpeople driven challenges to militarisation and authoritarianism of African politics—also witnessed a sharp deterioration in the security environment in a large number ofAfrican countries. Paradoxically, these two processes were somewhat inextricablyintertwined. As Hutchful further observed, “the decomposition of the securityapparatus of the state was intrinsic to the collapse of authoritarian arrangements onthe continent and hence facilitated the transitions to democracy; at the same time,however, it also undermined the ability of the state to extend security, eroding too theprofessionalism essential to democratic control of the armed forces.” (Hutchful, 2000)As was the case with the public sector in general, democratisation presented Africancountries with two key challenges in the security sector: on the one hand, that ofestablishing effective and accountable security agencies, capable of protecting thesecurity not only of the state but also of its citizens, and, on the other, that ofestablishing effective civilian oversight of the armed forces and security agencies.Democratic consolidation requires that both issues — that of ‘security’ and that of‘accountability’ be addressed in a comprehensive manner which can only occur in thecontext of democratic governance. If sound governance is to provide the necessarylink between the democratic intent and process, then the notion of governance must 2
  3. 3. necessarily be seen as the ability of the State to provide efficient and well functioninginstitutions and infrastructures of government – legally backed and socially coherent –that together establish and maintain an environment in which human security andhuman development takes place.Hence, the crux of the debate about democratic governance in the security sector isalso a discussion about the development of effective oversight mechanisms, as well asthat of creating viable security institutions able to provide security for the state as wellas for ordinary citizens, in the quest for democratic development and ownership of thestate. Yet, while the quest for ‘good governance’ has been applied to many aspects ofthe State reform agenda in the late 1980s, one sector that was hardly touched was thesecurity sector. Except in the narrow sense of the concerns expressed about levels ofmilitary expenditure, development agencies and multilateral institutions hardlyconnected governance in the security sector with the notion of improving the capacityand efficiency of security forces to effectively meet changing challenges in theirrapidly changing local and international environment. Even in their exclusive focuson militarisation and military expenditure, this was seen more as a bean-countingexercise in which reduction in military expenditure automatically translated toincrease in development and social spending.More fundamentally, the fact that militarisation and military expenditure were notseen as a process whereby the civilian sphere of society is increasingly militarised – amulti-dimensional process that is qualitative and quantitative - containing a range ofphenomena including defence spending, the growth of armed forces, the increasinguse of force in conflict management and resolution, the role of the military in politicaldecision making process and the spread of militaristic values in society underscoredthe limited understanding of the issues that governance in the security sector shouldbe concerned with and ignored the tendency of the state’s loss of monopoly overmeans of violence. Equally, the fact that the focus was exclusively military, ratherthan the entire security sector - it had negative policy implications as it not only failedto take cognisance of objective security threats that states faced but also encouragedStates to shroud security issues in needless secrecy. States were quick to rebuff anyeffort at subjecting security sector affairs to public scrutiny as “undue interference inthe internal affairs of a sovereign state”.The fact that the decade of democratization also featured in many cases a merereconfiguration of political, economic and military elites, rather than an opening up ofthe political system and/or broadening of participation, citizens wanted more than thechoiceless democracy that allowed citizens only the opportunity of ‘voting withoutchoosing (Ake, 1999) and this led to the relentless clamouring for ‘people drivenconstitutions that will represent a social contract between the rulers and the governed.Unlike in the old State in which the constitution was largely viewed and used as a setof rules and administrative arrangements, meant to enhance state powerunaccountably, citizens began to contend that a constitution by its very nature shouldbe more than a mere set of rules and laws regulating society and government. It ismore than a social contract or even the grundnorm. It is rather an expression of thegeneral will of a nation. To them, the constitution is that single document under whichdiverse and even ideologically opposed groups unite and rally in defence ofdemocracy. 3
  4. 4. Indeed, the hostility to the old State in the intervening cold war years played a majorpart in encouraging this notion of the new constitutionalism that is people driven andprocess led – aimed at reconstituting the African State along equitable, transparent,socially responsible and just lines. At every level on the continent, the idea has takenroot that the African State must be refashioned to reflect the realities of theirmultifaceted societies. Today, the struggle for constitutional reform is on going in atleast twenty African countries and it typifies to the generality of the people why rule-based and consensus driven governance matters. Additionally, the change in focusfrom constitutionality - where these documents are merely legal instruments with nostanding with the people to constitutionalism - where constitutions are now seen astools for social capital enhancement and bridge-building in the public realm,represents the first and perhaps most critical step in shifting state ownership from theleaders to the people. Even so, there remains an almost exclusive focus on the re-organisation of government structures, with less attention paid to restoration ofliberties and return of associational life thus giving less importance to consensusbuilding amongst civil society and between the ordinary citizen and the state.Yet in order to formulate African political cultures grounded in human rights andgood governance, an organic link is needed between the constitution as a rule of lawinstrument primarily concerned with restraining government excesses, and theconstitution as a legitimation of power structures and relations based on a broad socialconsensus in diverse societies. Many have seen the task at hand is to move away fromthe old constitutionality which overemphasised law and state power towards a newpolitical and socio-economic constitutionalism aimed at restoring trust in the Statewhilst arresting desertion from it. For understandable reasons, the security sectorremains the most contested in all of the terrains within which this is meant to happenin Africa, yet if the quest for constitutional governance does not extend to the securitysector, it is hardly an exaggeration that whatever progress is made in order sectors runthe overt risk of compromise.II. Constitutionalising Security Sector Reform in AfricaEven in African countries with long and unbroken tradition of democratic governance,little attention has traditionally been paid to the structure and administrative contextwithin which policy decisions are made in the defence and security sectors – who theprincipal actors are, their relationships to one another, and the statutory and legalprovisions governing their spheres of responsibility and competence among military,civil, and paramilitary institutions. With the renewed interest in security sectortransformation that is inclusive, legitimate and transparent – examining theadministrative and structural context within which policies are adopted would appearto be a useful way of determining the antecedents to the current desire for reform.Yet to be able to do this as far as Africa is concerned, understanding the colonialcharacter of the security sector cannot be over-emphasised. As Gutteridge observed:‘the armies of Africa…are the direct descendants of the colonial forces raised in theterritories of the imperial rulers to sustain the old order’.(Gutteridge, 1969). Tounderstand the security sector governance strategy adopted in post-independenceAfrican states therefore, we examine the central organisations of defence and securityin the metropolitan states of Great Britain and France and the superpower states ofUnited States and the Soviet Union. Although, states like Portugal, Germany and 4
  5. 5. Belgium also had territories in Africa, it is not difficult to conclude that in terms ofimpact, the four countries examined below had more influence in the shaping andfunctioning of the African militaries and security apparatus in the preceding decades.By looking at the constitutional and legal standing of the security sector in thesecountries, the administrative structure of the security institutions,parliamentary/legislative oversight of the security sector, freedom of information andthe level of civil society involvement in the making of this sector, our understandingof legacy bequeathed by these external models of governance in the security sectorshould improve our understanding of accountability, efficiency and ownershipquestions in the governance of the security sector.a) Constitutional basis of governance in the security sector: Although constitutionsdo not determine the policies of governments or the behaviour of its officials, theydefine the parameters and structures of formal authority in every states and serve asthe embodiment of public ownership as guidelines and guarantors of democracy aswell as the insurance of government accountability and answerability to its citizens.On the basis of this general principle, all of the states that strongly influenced theshape and character of security in Africa, have formal and objective controlmechanisms and lines of authority that are not always clearly defined even in theconstitutions. In theory therefore, the accountability of government and its securitystructures to parliamentary authority and oversight – as the institution that is theembodiment of the people’s sovereignty and popular will ought not to be in doubt, butin practice the situation is much more complicated.The 1958 Constitution of France, which ushered in the fifth republic in France alsohad the greatest influence on several newly independent Franco-phone states. Yet, theconstitution was a lot less clear on security issues – especially with regards to the roleof the President and the Prime Minister as well as the overriding authority ofparliament. On the one hand, the President is the Head of the Armed Forces (article15), signatory to all treaties (article 5), appoints prime minister and members ofgovernment (art.8), presides over Council of Ministers and various defence andsecurity committees (art.15) and can take any measure in the light of circumstances torestore law and order(art.16). On the other hand, the constitution is clear about therole of government in defining and directing the policy of the nation and itsresponsibility for the armed forces (art.20). From this latter constitutional andparliamentary perspective therefore, the government and the Prime Minister are theprincipal actors in defence matters, on behalf of the Head of State (the president).The position of the Prime Minister was further strengthened by the Ordinance ofJanuary 1959 which defined the central organisation of defence. The ordinance notonly conferred on the PM the general management of defence but also its militarymanagement in terms of defining the objectives, approves the implementation strategyand endorses the resource allocation to the services and the measures necessary tomeet defence requirements. In spite of these elaborate provisions, the president stillpresides over cabinet meetings and committee meetings. Given the Prime Minister’ssubordination to the president, it is often difficult for him to take decisionsindependent of the President’s approval under these constitutional arrangements. Theonly period when this ambiguity is real is when the President and the Prime Ministercome from different parties, as is the case currently in France. As was the case during 5
  6. 6. the period of cohabitation under President Mitterand, it is possible to attribute the driftin France’s Africa policy to the shift in foreign policy direction from the Champs’d’Elysee (Presidency) to the Quai d’Orsay (Foreign Ministry). In this context, thepersonality of the players determined to a large extent the path and pace ofgovernance in the security sector and all that was achieved in this regard wasminimum civilian control in an era of military continuity.Virtually all the countries that gained independence from France replicated thiscomplex and complicated relationship between the Head of State and Head ofGovernment and this impacted significantly on the stability of the polities and thenature of civil-military relations.Constitutionally, parliament controls the armed forces in Britain. This control datesback to the 1688 Bill of Rights which prohibits the maintenance of a standing army intime of peace without parliamentary approval. Although the parliament in Britaincertainly has more control than its French counterpart, its control mechanisms oftengive a misleading impression of what really goes on and whose influence prevails atany one time. Indeed, the balance of influence between political power and authority,on the one hand and professional and technical knowledge on the other, is a delicatelybalanced one often tilted to the side of the professionals. Even when theseParliamentary oversight committees gain the requisite knowledge and show thedetermination to ensure accountability, their action and their “reports are too oftenbrushed aside”. Bruce George, Chairman of UK’s Defence Committee put it ratheraptly when he suggests that the UK “has one of the least accountable security andintelligence services in the western world” and that “unlike the legislatures of otherstates, Commons Select Committees have very little formal power”(George, 1998).It is no surprise that many ex-British colonies have also largely replicated this formatand created parliamentary committees that act merely as rubber stamps rather thanprovide countervailing authority and independent verification of proposals fromgovernment ministers and military professionals. Only in countries where wholesaletransfers of parliamentary norms and conventions have been modified with alternativeparliamentary control mechanisms has the situation marginally improved as in SouthAfrica.b) Transfer of colonial defence structures and arrangements and objective civiliancontrol mechanisms: As with the replication of constitutional arrangements in theory,virtually all the departing colonial authorities bequeathed security structures ofgovernance that were already in existence with little on no modification to the newgovernments. Given the long history of interaction with the metropolitan force and thecrucial role of the dependent territories in the victory of the allied powers in WorldWar II, Africans in the colonial armies developed a more confident political andsocial outlook that did not exclude direct involvement in political affairs and thisconstituted a major worry to the new political elite in charge of these independentstates. Whereas the political elite distrusted the local military institution put togetherat the instance of the metropolitan power, the ruling elite still had tremendous trust inthe colonial power and acceded to various military pacts in most of the newlyindependent Francophone states and even an attempted Anglo-Nigerian Defence Pactwhich collapsed in the wake of protests in 1961. 6
  7. 7. Even after the abrogation of these various military assistance and defence pacts, thedependence on the colonial power by the ruling government was still ingrained in theleadership, hence the absence of locally codified or articulated defence policies andnational security arrangements, broadly outlining objectives as well as identifyinginternal and external threats based on emergent developments, and not as a proxy inthe super power rivalry of the period. Hence, to understand the national securitystructures in many of the countries, all that was needed was a visit to the metropolitancountry’s Ministry of Defence and all the formal mechanisms; lines of authority andconcentration on objective control mechanisms shape the defence planning process inthe satellite states. Whilst the cold war situation might have explained thesedevelopments, the collapse of the cold war did not lead to their disappearance.If anything, dominant theories of civil-military relations which contend that all that isneeded to correct the scourge of political militarism is for military power to residefully with the elected authorities and completely outside the realm of professionalsoldiers ignores the complex nature of the relationship between the military and thecivilian political elite. This model of civil-military relations and good governance inthe security sector continues to assume a level playing field in which “autonomousmilitary professionalism” can be predicated on “objective civilian control” whichencourages an “independent military sphere” that does not “interfere in politicalmatters”. In reality, this perspective treats civilian control as an event, a fact ofpolitical life, not a process, which exists in a continuum.As argued above, security sector reform should not be seen as a set of technical andadministrative arrangements that automatically flow from every transition, but part ofcomplex political processes, which must address the root causes of militarism insociety, beyond the formal removal of the military from political power. Whileformal control mechanisms are not in themselves wrong, the reality underpinning thecrisis of governance in the security sector underscores the point that subordination ofthe armed forces to civil control can only be achieved when civil control is seen aspart of a complex democratic struggle that goes beyond elections – processes that areexpressions of institutional relationships that are inherently political, subjective andpsychological.In countries where the military has become entrenched in all facets of civic andeconomic life and where politics has just featured a reconfiguration rather than atransformation of power, anchoring security sector reform to the notion of an a-political military fully subordinated to the supreme political elite underestimates theseriousness of the issues at stake. Hence, it is useful to address the constitutionaldimensions of democratic control through a clarification of the role and mission ofsecurity services; developing a civilian, democratic security policy expertise, ensuringprofessional autonomy and creating the necessary opportunities for networking anddialogue between the military and civil society representatives to ensure ownership ofthe governance process if democratic governance is to gain a foothold in the securitysector. 7
  8. 8. Towards an ‘African’ model of Constitutional Governance in the SecuritySector: Processes & MechanismsFrom the above, it is evident that the tendency to view security challenges andgovernance of the sector in purely military terms is a legacy of Africa’s colonial pastand the cold war era, which needs to change. Since current security challenges arefirst and foremost political before assuming a military character, most observers of thecontemporary African scene are agreed that participatory and collective efforts willyield more positive dividends than prescriptive and formal mechanisms of ‘objectivecivilian control’.Given the role of the security sector – especially its military component in the lastfour decades of Africa’s post independence history, the location of the security sectorin terms of its accountability to the people and their elected representatives hasbecome paramount to the debate about governance in the security sector. Second, asa national institution - the security sector relies on the public for support andsustenance in order to fulfill its constitutional mandate. Third, the idea that securityissues are the sole prerogative of security professionals is gradually giving way to amore inclusive public discourse and ownership. Consequently, the idea is now widelyaccepted that the State must resolve the problems of accountability and addresscurrent lacunae arising from the character of the post-colonial state through popularparticipation and organisational coherence to ensure democratic control and widennational security perspectives.Several African constitutions in the post cold war era are replete with innovativeprovisions aimed at dealing with the supremacy of the elected civilian authorities andtriggers of conflict like the use of emergency powers of state. One of the earliestconstitutions adopted in the post cold war period - The Ghanaian constitution of 1992– provides useful insights into the citizens’ capacity for innovation.(see below)In the same vein, the 1995 Ethiopian Constitution forbids its own violation and/oroverthrow as the supreme law of the land in Article 9(3). While it is arguable thatsuch provisions by themselves do not preclude the reversal of the democratic order,especially if they are not accompanied by other measures in a complex political arena,they speak to the consensus that has emerged in society on rules based governance,especially in countries emerging from prolonged authoritarian (dis)order. AlthoughPresident Rawlings’ credentials as a believer in the democratic reform agenda wassuspect when the constitution was adopted by referendum in 1992, its passagereflected the mood of the country. “Any person who (a) by himself or in concert with others by any violent or otherunlawful means, suspends, overthrows or abrogates this constitution or any part of it,or attempts to do any such act” (section 3:1) or (b) “aids and abets in any manner anyperson referred to in paragraph (a) of this clause, commits the offence of high treasonand shall upon conviction be sentenced to suffer death”. In sub-section 4(a), the sameconstitution states that “All citizens of Ghana have the responsibility and duty at alltimes” to (a) defend this constitution and in particular, to resist any person or group ofpersons seeking to commit any of the acts defined in clause 3 of this article. 8
  9. 9. The constitution goes further to declare that any person who participates in resistingsuch attempts or acts of suspending or abrogating it commits “no offence”.Subsequent sections award “adequate compensation which shall be charged to theConsolidated Fund in respect of any suffering incurred as a result of punishment” inresisting the abrogation of the Constitution. The Constitution of Ghana, 1992The fact that the same constitution contained additional organs of horizontalaccountability that were to later play a significant role in deepening the democraticprocess in the country – independent oversight bodies like CHRAJ, the NationalCommission for Civic Education and the National Media Commission – is indicativeof the people’s determination not to leave their future to the whims and caprices of anelected elite in the quest to promote political transformation, and not just powertransfer.In many respects, the enriched contents of these new constitutions are also byproducts of the changed political context within which they emerged. Unlike the firstgeneration constitutions of the post-independence era handed down from themetropolitan headquarters in Lancaster House or Champs d’Elysees or theauthoritarian diktats that replaced those, which offered deceptive universality withlittle regard for cultural and political contexts of the country in question, the latter dayconstitutions respond to the conflict signals in the post colonial state – issues such aspresidential powers, emergency powers, relationships between levels of governmentswithout assuming unanimity of views and with a great deal more regard for minorityopinion. A good example of this is the South African constitution, which contains, forexample, four pages of clauses on the implementation of the Emergency powers aswell as prohibiting soldiers from obeying “manifestly illegal orders”. Given SouthAfrica’s historical antecedents, especially under the apartheid regime, and the contextof extensive negotiations that produced the constitution, it was little surprising thatArticle 37 of the SA constitution went further than any other constitution on thecontinent to cover potential use of emergency powers and the limitations ofemergency powers vis-à-vis rights and freedoms that are non-derogable.While some of the provisions contained in many new constitutions in Africa betray adetermination to constitutionalise every aspect of governance in society, with all theattendant difficulties, this is also an indication of the lack of faith in the civic realm toleave everything to the whims of the judicial and executive authorities of state. Thereis a stronger belief that outcome of political decisions are most likely to endure ifcaptured in an explicit set of principles that are authochtounous and autonomous, andbeyond the reach of partisan politics. To a large extent therefore, all of theseprovisions link constitutional intent to process and go a long way in confirming thepeople’s concern for the rule of law with a broad agreement on certain principles andmechanisms that can enhance democratic governance in general and security sectorgovernance in particular. Again, whilst context may differ, the following principlesand mechanisms have informed the more successful constitution-making exerciseswith regards to provisions in the security sector. Countries who have refrained fromadopting this broadly inclusive framework tailored to their individual circumstanceshave also ended up with conflict-ridden polities with the disaffected parties resortingto extra-legal means of seeking redress. Nigeria, Sierra Leone, Democratic Republic 9
  10. 10. of Congo are few examples of this phenomenon. What then are the principles andmechanisms relevant to linking constitutional intent to governance process broadlyand within the security sector, in particular:PRINCIPLES• Governance in the security sector should not be seen in isolation of governance in the public sector generally.• The process of organising governance principles is as important as the substantive content and reflects democratic control.• The management and administration of the process is credible and respected.• The public is informed and involved at all stages of arriving at the aims and objectives of the exercise of security sector transformation and how these objectives are to be achieved in broad terms, to ensure that the process is transparent, participatory and credible.• The process is made receptive and open to the diverse views existing in society.• The process by which citizens can make contributions is made truly accessible in terms of physical proximity to security actors and oversight institutions through languages used and within a reasonable period of time.• To secure an informed and active participation of the citizenry, ordinary people are empowered to make effective contributions by giving them the necessary tools to participate through ongoing public education programmes using appropriate media and other methods to reach out especially to the disadvantaged and the most skeptical.• Conflicting aims and views are mediated in a manner that enriches policy debates and does not stall it, all with a view to ensuring harmony with the rest of the legal order. In this regard, adequate provision should be made for conflict resolution and consensus building.• There is a continuous review and evaluation of the processes undertaken to confirm that operating principles and minimum standards are being adhered to.• The process of continuing education of the public, even after achieving security sector transformation, on its content and the values of unfolding developments continues to ensure that these are internalised by the people.III. Parliamentary & Extra-Parliamentary Mechanisms for Oversight in the Security SectorWe have provided above the nature of the on-going discourse about constitutionalismand governance in the security sector in Africa. This intention has not been to simplyreify the notion that an adoption of constitutional principles and order necessarilyproduce desired outcomes in the quest for state reconstruction. Indeed, we are notunmindful of the popular view that ‘no constitution can cure a sick society, norprotect it against usurpers’. Nor are we oblivious of the fact that it is not the intrinsicquality of a constitution that will guarantee its durability or sustainability in the long 10
  11. 11. run (Okoth-Ogendo, 2000). The effort above is to demonstrate the various attempts atstate building and reconstruction in the continent grounded in constitutionalism.Even so, while African states have, by and large, embraced the importance ofconstitution-based governments, the link between the constitutional intent and thegovernments’ respect for the rule of law remains work in progress. Nowhere is thisbest typified than in the functioning of the security sector under rules basedgovernance. Governments by nature prefer security sectors that are opaque to thegeneral public given the secrecy that often surround war and issues of security even inpeace times. The narrow definition that restricts security to its military dimensionprecludes the notion that security knowledge should be widespread and its activitiesmade transparent. Until the last decade, the security services have often been seen (orseen themselves!) as an alternative and independent power centre hardly subject toscrutiny by government and parliament, even where such oversight agencies exist.1Whilst secrecy in the security sector is not the exclusive problem of African states, thesecurity sector has successfully managed to keep prying eyes at bay under the pretextof protecting ‘national security’, thus preventing proper parliamentary and extraparliamentary monitoring of security agencies.Over the last decade, there is a growing awareness that constitutional democracyrequires governments that are not only accountable to their citizens but also subject torestraint by elected civil oversight actors and independent oversight agencies.Interests groups and citizens now hold strong views that State constitutions mustentrench certain fundamental principles that allow for the creation, existence andpractice of oversight agencies that can safeguard the interests of the people, mediatethe excesses of the government and help to enforce the law. Hence, on the judicial,legislative and executive arms of government, there are civil oversight bodies like theMinistries/Departments of Defence, Police Affairs/Interior, ParliamentaryCommittees on Defence, Security, Intelligence, Police Affairs and Human Rights;Financial Management bodies such as Ministry of Finance, Auditor-General’s Office,Budget Monitoring Units; Judicial and Correctional agencies such as the Ministries ofJustice and civil society institutions like the media, human rights organisations etc.In addition to these parliamentary oversight actors, many Africa’s post-cold warconstitutions have also given a pride of place to extra-parliamentary oversightinstitutions such as Constitutional Courts(South Africa, Benin, Mali), Anti-Corruptionand Public Accountability Bodies, Ombudsperson(Namibia), Public Protector andInspector General of Government’s activities(Uganda, South Africa), Inspectorate ofIntelligence Services, Human Rights, Social Justice, Economic and Cultural RightsCommissions with mandates to examine the security sector actors. Whilst upholdingthe relevance of parliamentary oversight committees, the importance of thesecomplementary and sometimes parallel institutions of oversight cannot be over-emphasised. These institutions are seen, especially in civil society, as having thepotential of acting as a bulwark on which the very foundations of good democraticpractices are set, when allowed to function independently of influence from Stateorgans and personalities for the benefit and the cause of participation in governanceby the citizenry. From South Africa to Ghana, Uganda to Benin republic, the1 See National Democratic Institute, Report of the Civil-Military Relations Assessment Mission:West and Central Africa (Washington, DC:NDI, 1997) 11
  12. 12. principle of independent commissions as mediatory organs or ‘honest brokers cumwatchdogs’ occupying the realm between the citizens and governments has beencentral to recent constitution-making campaigns and it has enriched the debate aboutthe quality and character of governance in these States.In addition to parliamentary, state based oversight institutions and extra-parliamentaryoversight agencies, a number of African countries have also incorporated internationalmechanisms that promote human security, human rights and social justice into theirdomestic laws. For example, the African Charter of Human and Peoples Rights, thestatutes of the International Criminal Court and the African Court of Justice have beenratified and incorporated into the laws of several countries in Africa. Other countrieshave incorporated the International Covenants on civil and political rights andconventions on social, economic and cultural rights into local laws. Others havesigned up to the Convention on the Elimination of all forms of Discrimination againstWomen (CEDAW) and the Beijing Platform for Action into local laws, all withimplications for gender in the security sector.Oversight Actors & Agencies in the Security SectorAlthough the relevance of such institutions is no longer in doubt, difficulties that stemfrom institutional weaknesses in state capacity pose a more serious challenge foreffective governance in the security sector. In many African countries, the mostprominent examples of this weakness is the often-sketchy information in theconstitution with regards to the role of the legislature in security sector. For example,many of the constitutions, including recently promulgated ones are silent on criticalissues such as the role of the National Assembly/Legislature in national securitypolicy formulation, especially in countries emerging from prolonged authoritarianrule; powers to declare war, powers over budget, powers of approval of seniorsecurity sector appointments, powers on the declaration of emergency and how theseaffect non-derogable rights; professional autonomy of military and access toinformation on security sector issues and the provisions on military involvement inpolitics. As indicated above, a few have come up with innovative mechanismsmerging authochtonous arrangements with universal norms. For example, Ugandahas a quota for the military in parliament – an act borne out of its unique politicalhistory and a rejection of the notion of an a-political military.Hence, the crux of the debate about governance in the security sector is also adiscussion about the development of effective oversight mechanisms, as well as ofviable security institutions able to attain security for the state as well as for ordinarycitizens, in the quest for democratic development and ownership of the state. Whileeffective oversight is ensured through a number of institutions, the most significantoversight actors are the legislature, independent oversight institutions with legislativebacking and civilian bureaucratic institutions such as finance and justice ministriesand it is important to examine the nature of these oversight actors.To be effective, oversight institutions should operate without fear or favour in theirpromotion and protection of transparency, accountability and integrity and to ensure afree and fair dispensation of justice and administration. They must not be subject tothe whims or pressure of those who appointed them, even if President and/or NationalAssembly wield enormous power over security of tenure of their offices. Indeed, 12
  13. 13. what makes them independent is their autonomy and the minute that is in doubt, theirlegitimacy will also be severely affected. For example, there should be mechanisms,which will allow oversight agencies have access to adequate resources for operationsso that they do not become beholden to governmental institutions under their purviewin order to be able to fulfil their mandate. The experience to date is that bothparliamentary and extra-parliamentary oversight mechanisms lack resources toconduct their task efficiently and effectively. Even in Africa’s more successfulparliaments like the South Africa’s Defence Committee or the Joint StandingCommittee on Security, parliamentarians still complain about their lack of resources.A possible way out of the resource drought is to ensure that the Constitutionguarantees adequate funding through the Consolidated Fund of the NationalAssembly. In many African countries where provisions for independent agenciesexist, this has not been the case since the Constitution does not give a constitutionalguarantee on the funding of these institutions. They are at the mercy of the Executivebranch of government and are almost always treated like State controlledCommissions.On the fundamental concept of Independent Commissions which is that theseCommissions will act as societys watchdogs in seeking information, justification forgovernment actions, oversight and enforcement – there is often an asymmetrybetween the agencies and the public officials – especially when it comes to holdingpublic officials accountable for their actions. Although their right to get an answer isnot often questioned by those in authority, that right does not always extend to theright to make the answer public. Neither are oversight agencies empowered to actindependently of the Executive arm of the State, of the National Assembly or othersectoral interests that might exist and to seek the enforcement of the law since theyoften lack prosecutorial authority.For oversight agencies to be effective, their functions and powers must be clearlydelineated and recognised by the Constitution. Leaving aside the problems imposedon these institutions by their flawed establishment, they also suffer a credibility deficitdue to the lack of transparency in the manner that they interact with the generalpublic. Given the focus on accountability and justification for governmental actions,most watchers of oversight institutions agree that constant engagement with the publicis key to their success. Publicity must not only apply to power holders but also toagents of accountability. In a situation where they lack the capacity or the desire topublicise their work with the public, oversight agencies expose themselves to thesame accusations of self-importance and arrogance that often get government intotrouble with the citizens. This is a common problem with most parliamentary andextra parliamentary oversight agencies dealing with the security sector. In fact inmany countries, these institutions only exist in name.Another problem suffered by parliamentary oversight committees is the lack ofinformed knowledge and expertise on the part of elected members of security sectorcommittees. This has posed a key challenge to effective oversight of the securitysector in most countries in Africa. There is a dearth of technical expertise on securitymatters in national legislatures as they lack resources to engage professionals in houseknowledge base and outside consultants; lack of communication with militaryprofessionals; inefficient use of the Committee system in parliament; inexperiencewith legislative drafting; lack of interest or involvement in the shaping of national 13
  14. 14. security policies; lack of clarity on role and functioning of legislative oversightbodies. 2Although the problems vary from one country to the next – especially with regards tothe establishment and proper functioning of parliamentary committees dealing withthe security sector – Public Accounts, Defence, Police Affairs, Security &Intelligence, Human Rights etc, it is also fair to say that there are positivedevelopments in several countries in this regard, although it is driven largely by ad-hocery rather than a systematic arrangement underscored by general principles ofoversight in the governance of the security sector. For example, the Ghanaianconstitution has a very extensive section of the constitution devoted to sanctions andincentives relating to illegal overthrow of elected authorities; the South Africanconstitution has perhaps the most elaborate provisions on emergency powers, not justin Africa but also in the entire globe. In addition, it developed a National SecurityWhite Paper with input from all sections of the society – parliament, the military,security agencies, and civil society. In Benin and Mali republic, the legislatureexercises the power to declare a state of emergency, vote on military budget anddeclare war upon recommendation of the Council of Ministers. Yet, in newdemocracies like Nigeria, the legislature has displayed a level of disinterest in securitymatters even as the country remains hobbled by conflict.Independent Oversight Institutions and the Challenge of IndependenceWhile independent oversight Institutions are gaining greater prominence in somecountries and deepening the democratic quality of their governance – others reflect amore precarious situation. Indeed, oversight agencies face a serious challenge ofrelevance and legitimacy in many countries where they are in operation – primarilybecause they are sometimes extra-constitutional. The challenge of legitimacy is notjust one of operations and legal jurisdiction, but also one of conceptualisation.Conceptually, oversight agencies, especially where they are not legislative bodies,would appear to constitute a contradiction in terms – in the sense that they stand theprinciple of accountability on its head. The accountability of elected authorities andpersonalities to a series of all powerful oversight institutions populated by appointedofficials tasked with ‘supervising’, ‘monitoring’ and/or ‘regulating’ their powers isinherently seen to be ‘undemocratic’. This is more so in situations where the extra-parliamentary oversight institutions are not accountable to parliament and do notderive their legitimacy from the parliamentary branch of government. The executivebranch sometimes utilises the establishment of special commissions that are notaccountable to parliament as a means of dodging parliamentary scrutiny especially inthe security sector. Even where such oversight institutions account to parliament,some elected representatives have argued that it is a surreptitious way of powerbrokerage by those who could hardly 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 representatives2 See NDI (1999), Report of the Role of the Legislature in Defence Matters, (Washington,D.C: NDI) 14
  15. 15. nor 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 the relationshipbetween elected officials and members of oversight agencies. In some countries,appointed members of oversight agencies have political party affiliation and this castsdoubt 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 judgements.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 conflictpolitical transition arising out of peace agreements, this shouldn’t result in theparalysis of such oversight institutions if the terms and conditions for sucharrangements are clearly worked out before hand and shared with the public.Transparency therefore holds the key to ensuring that the actions of such a body arenot perceived to favour one party to the detriment of the others.Partisan political or ethnic affiliations become an issue when accountability agenciesconfuse their roles and responsibilities with that of the executive branch or legislativecommittees. This encroachment into jurisdiction that is often undefined but whichappears outside of the realm of these institutions has been a key source of problemsespecially 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 does it aim at eliminating discretion through stringent bureaucratic regulation.The challenge of who ‘guards these guardians of state’ is often one to be confronted.One way of addressing these institutional challenges is by defining different levels ofaccountability – governmental, legislative, bureaucratic, judicial, electoral andinternational and deciding early a clear code of conduct or behaviour for thoseinvolved in independent oversight institutions that are constitutionally entrenched andensure that they are placed to some degree within the parliamentary oversight system,that the appointment process is transparent and/or that some members be elected fromthe public. In addition, members of oversight institutions, for example, should at theminimum be expected to commit themselves 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 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, 15
  16. 16. 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 and work in harmony with the constitution.(In a number of cases, many of these institutions actually contradict, rather than reinforce the fundamental tenets of the constitution as they exist outside of the fundamental law of the country.)The Place of Regional and International Oversight Agencies in the SecuritySectorIn the age of globalisation and regionalism, the degree to which what happens outsideof national and juridical boundaries affect domestic governance and vice-versa cannotbe underestimated. Locating national oversight institutions within an internationalcontext seems absolutely important. In the context of a growing regional integrationprocess and peace-building efforts, it is important that regional oversight frameworksshould be developed and adhered to in peace support operations, in the promotion ofinternational humanitarian law, in the enforcement of laws of war principles and inthe promotion of general principles of oversight and constitutional development. Forexample, several regional institutions are emerging in the post-cold war context suchas Parliaments, Regional Courts of Justice, and regional systems of free movementwith implication for security and development.Laudable as these measures and institutions are, it is important to harmonise the placeof these regional institutions with national institutions, if future conflicts are to beavoided between these institutions. In certain areas, this degree of synergy seems toexist. For example, the African Commission on Human & Peoples’ Rights appear todraw the bulk of its members from National Commissions where they exist. Yet,many of the countries that have signed up to the Charter have hardly ever compliedwith the annual reporting requirement on the human rights situation in theircountries.3 Not only is it important therefore that states show fidelity to protocols andagreements that they have willingly signed, but also they should ensure that these areratified by the various parliaments with the opportunity given to the wider populationfor examining the incentives and dangers of the international agreement.In addition, regional oversight bodies are central in the governance of trans-nationalissues that go beyond the jurisdiction of States, but we can only ensure that citizensare protected if States are willing to develop and utilise these institutions fully. Forexample, several transnational corporations operate in African countries withoutupholding the basic minimum standards that apply in most countries of theiroperation. The oil industry is one example of this phenomenon. Over the last decade,the global civil society has succeeded in agitating for the establishment of globalcompacts on business ethics, various codes of conducts on resource appropriation andterms of trade issues like regulating blood diamonds; landmines proliferation, smallarms proliferation; human rights in the corporate world; accountability to local3 See Chidi Anselm Odinkalu, “Social and Economic Rights: Assessing the work of the AfricanCommission on Human and Peoples’ Rights”, Human Rights Quarterly, 2001 16
  17. 17. communities etc all with significant implications for human security and governancein the security sector. While this represents a positive development, it is importantthat these good international agreements and codes of conduct are adapted for localusage and incorporated into local laws with independent institutions empowered tomonitor the conduct of these trans-national bodies and their implementation ofinternational principles.4It is only by locating local laws and action in the areas of oversight agencies within aregional and global context that we can begin to lay the basis for meaningful action.Appraisal of Oversight and Enforcement InstitutionsIt is clearly a positive development that Africa’s democratic transitions have givenrise to attempts to bring oversight agencies into the mainstream of constitutionalgovernance and overall public sector management reforms, but challenges remainespecially for those oversight bodies concerned with the opaque world of security. Itis to the advantage of States where trust in government capacity to act in the bestinterest of the citizens has been eroded over the years to use these institutions togradually rebuild confidence in the transition years and it is hoped that keystakeholders will show a significant interest in the strengthening of such institutions..For these institutions to make an impact beyond their appearance in constitutionaldocuments though, some benchmarks are useful in appraising their effectiveness asoversight agencies responsible for the accountability of elected authorities. Theseinclude: • Constitutional provisions and Government policies and procedures regarding oversight over security actors; • The interrelationships among and between security and oversight actors and agencies; • Legal frameworks for security and oversight actors; • Political commitment to oversight and accountability by security actors; • Capacity of Oversight Institutions in terms of technical expertise, funding; sensitivity to issues of professionalismMeeting these benchmarks poses a significant challenge in the security sector wherestructures and practices have traditionally been weak and least defined althoughpressures from below as well as from external institutions now ensure that securityactors deal with the demands of public accountability. Even so, any evaluation ofprogress in the work of oversight agencies is complicated by the fact that, whiledemocratisation in Africa (as in many newly democratising regions) are in a state offlux. Nevertheless, it is clear that most African countries are far from achieving the4 See Meghnad Desai & Yahia Said, ‘The New Anti-Capitalist Movement: Money and GlobalCivil Society’, in The Global Civil Society Yearbook 2001 (Oxford: Oxford University Press forCentre for Global Governance & Centre for Civil Society, LSE, 2001) 17
  18. 18. elements of ‘sound governance’ in the area of oversight institutions in the securitysector. Those that have done so cherish the way it has improved the quality ofgovernance and focussed the mind of public sector officials at all times on the keyprinciples of accountability and answerability. For those who are yet to reach thethreshold of achieving measurable success in their quest for accountability andtransparency, it is our expectation that the principles and outline of issues contained inthis section will help towards the improvement of their capacity.IV. Security sector reform within a strategic thinking frameworkV. Formal and Informal Players in the Security Community A country’s security family is composed of the totality of the actors that affect the security of the state and its citizens. They include, but are not limited to the following actors: Defense forces, Police forces, Gendarmerie/paramilitary forces, Informal forces, Intelligence services, Civil oversight bodies (including the office of the president/PM, cabinet, legislature), Financial management bodies, Judicial and correctional systems (as critical adjunct to the police), Bodies responsible for foreign affairs (including regional organizations and Civil society organizations. Not all of these actors have as their objective enhancing the security of the state and its citizens. Rather, as in the case of warlords or criminal gangs, their existence and activities are a major cause of insecurity. Nor are all potential members of the security family present in every country. Historical experience plays an important role in determining how the security family is constituted in each individual country. Countries that lived under French colonial rule generally have gendarmerie, for example, while most former British colonies do not. Countries that have not experienced serious internal conflict, do not have armed opposition groups. The security forces Discussions about security tend to focus on the roles of the security forces, and particularly on the role of the armed forces which are charged with protecting the state. A peacebuilding approach to security, however, underscores the fact that achieving security for states and their citizens is not a task that the armed forces can accomplish by themselves. Other state bodies that are mandated to ensure the safety of the state and its citizens need to be part of the equation. The security forces, therefore, include not only the armed forces [defense forces?]. They also include the civil police, the intelligence services, and formal paramilitary forces such as the gendarmerie and customs enforcement entities. In order to maximize their ability to ensure state and individual security, the roles that each of these security actors need to be well-defined and transparent. The forces themselves need to be professional and non-political and to eschew involvement in the economy. Civil Authorities and Civil Society A second implication of a peacebuilding approach to security is that it requires a more active role for the civilian actors that oversee and monitor the security 18
  19. 19. forces. Achieving national security is not the sole preserve of the security forces. The security of both the state and its citizens will be maximized to the extent that the security forces are under democratic, civilian control. This implies involvement by a broader range of government actors than simply the security forces themselves. A number of executive branch ministries and offices need to be involved in the formulation of security policy and monitoring its implementation. These include civil planning and oversight bodies such as the ministries of defense and justice and the office of the president. They also include financial management bodies such as the ministry of finance, the budget office and the office of the auditor general. Other important actors include the judicial and correction systems, customs, and the ministry of foreign affairs. The legislature has several important roles to play in helping to develop and monitor security policy. As members of various oversight committees, they vet the policies of the executive branch and the way in which these policies are implemented. Legislatures also hold the power of the purse, and must approve budgets and monitor their implementation. Additionally, legislatures exert varying degrees of control over the executive’s ability to wage war. These public sector actors – the security forces and the civil authorities that develop security policy and oversee and monitor the activities of the security forces – comprise the security sector. However, there are a number of additional actors who influence the content and implementation of security policy in Africa. These include: civil society, organized armed opposition groups and other informal security forces, the security cells of political parties, private commercial security firms and international and regional bodies collaborating with national actors in the security field. Civil society consists of a broad range of non-state actors, including religious groups, academics, policy researchers, the media, women’s groups, professional associations such as the bar association, community-based organizations and interested citizens. Civil society can play an important role in monitoring the development and application of security policy and the activities of the security forces. It also acts as an important resource for the security community. Civil society can provide input on a broad range of topics, ranging from overall defense policy, expenditure and procurement proposals to the human rights record of the security forces. While there is sometimes an assumption that civil society organizations support a peacebuilding approach to security by definition, that is far from the case. Opinions on security policy are as diverse within civil society as they are within government circles. For example, the media can act both as a source of information and disinformation and can foster productive national debate on security issues or strengthen divisions within society.Regional and multilateral actors Just as the security forces cannot by themselves guarantee the security of the state and its citizens, national actors cannot by themselves guarantee the security. Regional and multilateral actors must be part of the equation – both those engaged in activities that undermine national security and those that make positive 19
  20. 20. contributions to the security of individual states and their populations. As at the national level, the stakeholders include both official actors and civil society organizations. Some of the relevant actors include broad based organizations such as the United Nations, the Organization of African Unity, ECOWAS, SADC, and IGAD. Others are more narrowly focused on one or another aspect of security, such as SARPCO.Other non-state actors It is also necessary to take into account the role played by the purveyors of insecurity: organized armed opposition groups and other informal security forces, the security cells of political parties, private commercial security firms. In principle, some of these actors can strengthen state and individual security. For example, private companies that provide demining services can significantly enhance individual security. Similarly, armed opposition against a repressive regime can bring into being a government more in tune with the precepts of human security and human development.For the most part, however, these actors undermine the stability and security of both states and individuals.VI. Reform Constituencies and Stakeholders 20
  21. 21. Table 1: SA’s State of emergency provisions state of emergency, the following conditions must be37. (1) A state of emergency may be declared only in observed:terms of an Act of Parliament, and only when a. An adult family member or friend of the a. the life of the nation is threatened by war, detainee must be contacted as soon as invasion, general insurrection, disorder, natural reasonably possible, and informed that the disaster or other public emergency; and person has been detained. b. the declaration is necessary to restore peace and b. A notice must be published in the national order. Government Gazette within five days of the person being detained, stating the detainees name and place of detention and referring to(2) A declaration of a state of emergency, and any the emergency measure in terms of which thatlegislation enacted or other action taken in consequence of person has been detained.that declaration, may be effective only c. The detainee must be allowed to choose, and be visited at any reasonable time by, a medical a. prospectively; and practitioner. b. for no more than 21 days from the date of the d. The detainee must be allowed to choose, and be declaration, unless the National Assembly visited at any reasonable time by, a legal resolves to extend the declaration. The representative. Assembly may extend a declaration of a state e. A court must review the detention as soon as of emergency for no more than three months at reasonably possible, but no later than 10 days a time. The first extension of the state of after the date the person was detained, and the emergency must be by a resolution adopted court must release the detainee unless it is with a supporting vote of a majority of the necessary to continue the detention to restore members of the Assembly. Any subsequent peace and order. extension must be by a resolution adopted with f. A detainee who is not released in terms of a a supporting vote of at least 60 per cent of the review under paragraph (e), or who is not members of the Assembly. A resolution in released in terms of a review under this terms of this paragraph may be adopted only paragraph, may apply to a court for a further following a public debate in the Assembly. review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it(3) Any competent court may decide on the validity of is still necessary to continue the detention to restore peace and order. a. a declaration of a state of emergency; g. The detainee must be allowed to appear in b. any extension of a declaration of a state of person before any court considering the emergency; or detention, to be represented by a legal c. any legislation enacted, or other action taken, in practitioner at those hearings, and to make consequence of a declaration of a state of representations against continued detention. emergency. h. The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons(4) Any legislation enacted in consequence of a to the detainee at least two days before thedeclaration of a state of emergency may derogate from the court reviews the detention.Bill of Rights only to the extent that (7) If a court releases a detainee, that person may not be a. the derogation is strictly required by the detained again on the same grounds unless the state first emergency; and shows a court good cause for re-detaining that person. b. the legislation i. is consistent with the Republics obligations under international law c. (8) Subsections (6) and (7) do not apply to applicable to states of emergency; persons who are not South African citizens and ii. conforms to subsection (5); and who are detained in consequence of an iii. is published in the national international armed conflict. Instead, the state Government Gazette as soon as must comply with the standards binding on the reasonably possible after being Republic under international humanitarian law enacted. in respect of the detention of such persons(5) No Act of Parliament that authorises a declaration of astate of emergency, and no legislation enacted or otheraction taken in consequence of a declaration, may permitor authorise a. indemnifying the state, or any person, in respect of any unlawful act; b. any derogation from this section; orany derogation from a section mentioned in column 1 ofthe Table of Non-Derogable Rights, to the extent indicatedopposite that section in column 3 of the Table (6)Whenever anyone is detained without trial in consequenceof a derogation of rights resulting from a declaration of a 21
  22. 22. d. Table of Non-Derogable Rights Section Number Section Title Extent to which the right is protected 9 Equality With respect to unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex religion or language 10 Human Dignity Entirely 11 Life Entirely 12 Freedom and Security With respect to subsections (1)(d) and (e) and (2)(c). of the person 13 Slavery, servitude and With respect to slavery and servitude forced labour 28 Children With respect to: • subsection (1)(d) and (e); • the rights in subparagraphs (i) and (ii) of subsection (1)(g); and • subsection 1(i) in respect of children of 15 years and younger 35 Arrested, detained and With respect to: accused persons • subsections (1)(a), (b) and (c) and (2)(d); • the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d) • subsection (4); and • subsection (5) with respect to the exclusion of evidence if the admission of that evidence would render the trial unfair. 22