The Bill fails to break free from the shackles of our militarised history, and Ceasefire therefore submits not only that it should be amended, but also that civil society and government should engage in a consultative process to reconsider the framework within which the security and defence of the South African people are managed.

What we have before us today is a bill that purports to address government's responsibility for the defence of the nation. It presupposes that such defence can only be military defence. It focuses on the protection of the state and its territory instead of the protection of the people. It ignores human security. It ignores non-military methods of defence. And it ignores the need for demilitarisation by perpetuating military involvement in non-military functions.

Ceasefire's position is that, during periods when there is no conventional military threat against South Africa in the short to medium term that cannot be met by non-military methods, military forces should be mothballed. ‘Threat-independent scenarios’ and the like, such as those on which the arms deal was based, are merely subterfuges by the military-industrial complex to protect their vested interests by attempting to pull the wool over the eyes of supposedly naïve politicians and appealing to jingoistic patriotism and outdated concepts of defence.

We recognise that such a major about-turn in defence policy will not suddenly happen as a result of our submission. But Parliament does need to engage civil society in a people's defence review that will reconsider the direction in which defence policy is moving. Government should be open to the possibility that this process may lead to a reconsideration of constitutional provisions relating to the defence of the nation. We therefore propose:

(1) that, in order to signal Parliament's recognition that military forces do not have the last word on the defence of the nation, the title of the Bill should be changed to ‘Military Defence Bill’; and

(2) that a process of consultation be initiated to explore alternative defence methods, with particular reference to human security and the demilitarisation of society.

We welcome the elimination of conscription during peacetime. But it is totally unacceptable that conscription is still being contemplated in time of war under the rubric of ‘mobilisation’, as contemplated in the Chapter 14 (sections 84 to 86). Indeed, in the memorandum on the objects of the Bill, it is stated that, during a time of war, a state of national defence or a state of emergency, ‘persons may be mobilised for compulsory military service’.

It should be made clear in section 85 that mobilisation of citizens is on a volunteer basis only, whether in time of peace or war. The Defence White Paper, as approved by Parliament in May 1996, stated:

This was not qualified as applying in peacetime only. If the principle applies in peacetime it must also apply in time of war. In fact, in time of war, there may be more specific reasons why persons may object to conscription on grounds of conscience. Ceasefire rejects the suggestion in the memorandum that ‘adequate provision is made for exemption from or deferment of such compulsory military service’. No exemption board should have the power to decide whether there is ‘justifiable ground’ for a person to be considered a conscientious objector. If these provisions are enacted, we are back to the days of the apartheid regime when the state had the right to decide on the consciences of civilians. Prisoners of conscience will again be a feature of South African life.

Conscription is contrary to sections 12, 13 and 15 of the Constitution. In terms of section 36 (1) those rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including ­

1. the nature of the right;
2. the importance of the purpose of the limitation;
3. the nature and extent of the limitation;
4. the relation between the limitation and its purpose; and
5. less restrictive means to achieve the purpose.

The nature of these rights is too fundamental to be limited by the requirements of mobilisation. Volunteer mobilisation is a less restrictive means to achieve the purpose.

The proposed provisions for conscription entrench a militarist mindset typical of the apartheid regime. All employment in the SANDF must be on the basis of volunteer service only. If that means the SANDF is unable to mobilise adequate personnel for a particular operation, then that should be taken as indicative of the will of the people. People must have the right to decide. We are no longer pawns of the state.

The provisions in section 86 (2) (b) and (f) regarding ‘exemption’ and ‘deferment’ should not be necessary if mobilisation is voluntary. Section 56 is also not necessary; obligations to serve should be subject to appropriate contracts of service, and to the Constitution. And Chapter 11 (sections 64 to 67) should be scrapped.

We commend the omission from Chapter 14 of the declaration of a state of war from the power of the President in the absence of a military threat. However, the declaration of a state of national defence should be subject to review by Parliament.

A major concern with the Bill as it stands relates to the involvement of the military defence force in non-military functions, particularly in policing functions, including border-guard and coast-guard functions, but also in peace-corps functions. The deployment of military personnel in these functions tends to send the wrong messages both to our own people and to our neighbouring states.

Section 17 relates to the employment of the Defence Force. Here our concerns relate to subsection (1) (c) and (d). The involvement of military personnel in socio-economic upliftment will tend to militarise society. Military personnel used for that purpose on an ongoing basis should be seconded to another department, or to a peace corps, trained and instructed by non-military personnel, and perform their services out of uniform. National border control is not a military function, but a policing function. It should fall under the Ministry of Safety and Security together with the coast-guard function. Military personnel currently used for that purpose should be transferred to a border-guard department under that ministry.

Section 18 relates to the employment of the Defence Force in co-operation with the police. Once again, this section militarises the policing function and similar provisions should apply. Since both the Minister of Defence and the Minister of Safety and Security must agree to service in co-operation with the police, it is logical that both should agree to its continuance. This means that either should be able to request its discontinuance without the concurrence of the other. Subsection (2) (b) should be amended accordingly. Also, employment of SANDF members in co-operation with the police should (like employment for the purposes envisaged in section 17) be subject to parliamentary oversight.

Chapter 4 (sections 19 to 27) militarises the coast-guard function to an alarming extent. The coast-guard function should be organised by means of a large number of small, suitably equipped coastal vessels in collaboration with local communities and with the assistance of comprehensive satellite surveillance, not by means of a small fleet of blue-water warships. This function should form part of a separate bill on the border-guard function, which should be under the control of the Ministry of Safety and Security.

Peace missions are another field of activity that should be demilitarised. South African military involvement in peace support operations (in support of peace missions) should be subject to the approval of the Minister of Foreign Affairs and should be in accordance with the White Paper on South African Participation in International Peace Missions, which was approved by Cabinet on 21 October 1998. South Africa should, however, not be involved in peace enforcement operations, which are merely a form of war.

One of the major principles of the White Paper is that the employment of members of the SANDF in such operations should be voluntary:

Provided it is clear that South Africa will not participate in peace enforcement operations, Ceasefire supports this principle. Otherwise, SANDF members in units earmarked for participation in peace support operations should be allowed to decline to participate in a peace support operation if it may involve peace enforcement.

Chapter 15 (in particular sections 87 to 91) is curious in that it deals with the details of service by SANDF members in other countries without making any substantive provision for the authorisation of such service. South Africa should not enter any agreement or be obliged in any way to engage in war, whether as an ally of another state or in any other capacity. The White Paper requires that:

It also requires that:

And furthermore:

• The President will promptly and in appropriate detail inform Parliament, if in session, or, if Parliament is not in session, the appropriate parliamentary committees, as to the reasons for the employment; the place where the force is to be employed; the number of persons involved; and the expected duration of the employment.
• Those Parliamentary Committees with a direct interest in South Africa's involvement in peace support operations - the Parliamentary Committees on Defence, Foreign Affairs, Intelligence and Finance - should be briefed on the preparation for the peace support operation in question.
• The Parliamentary Committees must be informed of the proposed entry and exit criteria and risks involved, and the Treasury Committee on the financial implications of the operation.
• The Parliamentary Committees should be informed of the proposed command and control arrangements and the details of the proposed force, as well as the proposed Rules of Engagement and the proposed withdrawal plans for the force in question.
• Documentation must be provided to parliamentarians in a timely fashion to expedite their decision. This would outline to the parliamentarians whether the operation, in the opinions of those state departments involved in preparing for the operation, accords with South African national interests, national policy and foreign policy objectives.

Because a peace mission is not essentially a military operation and has little if anything to do with the defence of the nation, the above details should not form part of a military defence bill. A Peace Missions Bill should be enacted by Parliament and the Minister of Foreign affairs should be responsible for its implementation. Nevertheless, in the interim, and to the extent that military forces may be involved, it is necessary for this bill to include provisions covering such involvement.

The Ceasefire Campaign's experience of members of the Defence Secretariat is that they have tended to justify high levels of military spending instead of seeking to control them, and they have given bogus reasons for not supplying information that should be in the public domain. Sections 5 to 9 of the Bill give the Secretariat reasonable powers, but in certain respects they tend to undermine those powers. The Defence Secretariat should be an exclusively civilian body. Otherwise it is an exercise in self-delusion and makes a mockery of section 204 of the Constitution.

The requirement in section 5 (6) that SANDF members serving in posts in the Defence Secretariat must obey the instructions not only of their superiors in the Defence Secretariat but also those of superior SANDF officers is totally unacceptable. If an SANDF member is transferred to the Secretariat he or she should be transferred out of the SANDF. In fact none of subsections (4) to (6) of section 5 is necessary.

The power given to the Secretary for Defence in section 8 (1) to delegate his or her powers to the Chief of the Defence Force or to a member of the SANDF is equally unacceptable.

We note that military discipline is to be dealt with in separate legislation. This is a matter of some urgency, as the provisions of existing legislation are unacceptable. In the mean time, however, the provisions of section 29 allow too much power to the military police and they appear to anticipate very little change in the separate legislation. We suggest that Chapter 5 be deleted and dealt with instead as part of the legislation regarding military discipline.

We are also concerned at the curtailment of rights of members of the SANDF in terms of Chapter 8 (sections 47 and 48). We think that this flies in the face of members' rights in terms of the Constitution and recent court rulings. Section 48 (3) is particularly draconian in that it may restrict or prohibit the communication of ‘any kind of information’. This suggests that members will be held incommunicado.

We have two concerns with Chapter 6 (sections 30 to 40). First, we think that the powers of the Intelligence Division to ‘assist’ in the execution of foreign policy as contemplated in section 32 (a) (iv) should be subject to the discretion of the Minister of Foreign Affairs. And secondly, we submit that counterintelligence has no place in the governance of a democracy.

Proposed amendments to the Bill are appended.

It is proposed that the Bill be amended as follows.

Delete and substitute ‘Military Defence Bill’.

Delete subsections (4) to (6).

Delete this section in its entirety.

In subsection (1):

• in (b), after ‘services;’ insert ‘and’;
• at the end of (c), delete ‘and’;
• delete (d);
• at the end insert:

In subsection (2) delete ‘(a), (b), (c) or (d)’ and substitute ‘(a), (b) or (c)’.

In subsection (1) delete ‘The Defence Force’ and substitute ‘Subject to subsection (5), the Defence Force’.

In subsection (3) (b) delete ‘the Minister and the Minister of Safety and Security’ and substitute ‘the Minister or the Minister of Safety and Security’

In subsection (4) delete ‘as giving a member of the South African Police Service … and, conversely,’.

Insert subsection (5), (6) and (7) as follows:

Delete these sections in their entirety.

Delete these sections in their entirety.

In subsection (a):

• in item (iv) delete ‘and foreign’;
• after (v) delete ‘and’; and
• add: ‘(vii) subject to the approval of the Minister of Foreign Affairs, assisting in the execution of foreign policy; and’.

Delete this section in its entirety.

(1) In subsection (3):

• delete ‘the protection of information’ and substitute ‘the protection of particular information’;
• delete ‘any kind of information’ and substitute ‘such information’; and
• delete ‘communication of information’ and substitute ‘communication of such information’.

(2) in subsection (5) (b), delete ‘Members’ and substitute: ‘Subject to the provisions of section 88, members’.

(3) Delete subsection (4) and (6) and renumber the rest.

Delete this section in its entirety.

Delete these sections in their entirety.

(1) Renumber the existing section as subsection (1) and insert at the end:

(2) Insert subsections (2) and (3) as follows:

In subsection (2) delete (b) and (f).

(1) Renumber the existing section as subsection (1).

(2) In (a), after ‘must’, insert: ‘, subject to the provisions of subsection (2),’.

(3) Insert subsections (2) and (3) as follows: