Judicial independence in the South African National Defence Force

The Constitutional Court of South Africa has taken under advisement the important case of O'Brien v. Minister of Defence & Military Veterans, No. CCT 14/23, heard on August 8, 2024. The Supreme Court of Appeal's decision under review can be found here. The International Commission of Jurists is an amicus curiae. Here is an excerpt from its description of the case:

The case addresses questions around the functional and effective judicial independence within the military courts in South Africa, which the ICJ submits is inadequately protected. One adverse impact is that military courts have not been able to protect the rights of survivors of gender-based violence alleged to have been committed by members of the South African military. The applicant, Lieutenant Colonel Kevin O’Brien, was previously a military judge whose appointment was not renewed in 2014. Lt-Col O’Brien last sat as a military judge in 2017 and has since been an instructor at the School of Military Justice. He is challenging several provisions of law concerning the military courts in relation to procedures for appointment and removal, which involve undue participation of political authorities and thereby serve to undermine the status and function of these courts as independent.

“The power granted to the Minister to remove military judges, without oversight, is antithetical to the independence of military courts and judges and amounts to the effective management and a degree of control of military courts by the executive.”, said Kaajal Ramjathan-Keogh, ICJ’s Africa Programme Director.

The ICJ has successfully petitioned the Court to allow it to adduce evidence of a government issued report documenting the extent of harm by the South African military in respect of sexual harassment, sexual exploitation, sexual abuse, and sexual offences.

“As the government itself has acknowledged, there is a serious problem with gender-based violence perpetrated within and at the hands of the South African military. The inadequate independence of military courts therefore significantly reduces the avenues for accountability for survivors of abuse,” said Ramjathan-Keogh.

In its written submission, the ICJ connects the inadequacies of judicial independence with the potential failures of the military courts to ensure accountability for survivors of such abuses within and at the hands of members of the South African National Defence Force. The ICJ underscores that under international standards cases of torture and ill-treatment, including rape and other sexual violence should be adjudicated by ordinary civilian courts, but where military courts do act, they must be effectively independent from political entities.

In summary, the ICJ’s submissions raise the following key points:

• International law and standards applicable to South Africa must give effect to human rights obligations in respect of the independence of the independence of the judiciary, and international standards on judicial independence are applicable to military tribunals.
• Sections 15 and 17 of the Military Discipline Supplementary Measures Act 16 of 1999, which grant the Minister of Defense and Military Veterans the discretionary power to appoint military judges on a temporary basis or remove them without any oversight, is non-compliant with the principles of judicial independence, and is therefore in breach of South Africa’s international legal obligations.
• The investigation of military judges and/or revision of their judicial decisions through a board of inquiry, under sections 101 and 102 of the Defence Act No. 42 of 2002, is a clear violation of the principle of judicial independence.
• One of the many consequences of South Africa’s failure to secure the independence of military courts is a failure to ensure accountability for victims and survivors of sexual violence allegedly perpetrated by members of the SANDF. This, therefore, also constitutes a failure to comply with South Africa’s international obligations to prevent and redress all forms of gender-based violence.