ISS Today written by Abeba B. Amene, Civil Society and Community Outreach, Mifugo Project, ISS Nairobi 

The African continent has had very few transformational leaders who have inspired hope, went beyond the ordinary and felt it necessary to transform lives. On the particular issue of cattle rustling and insecurity, the question to pose perhaps is what kind of leadership exists in pastoralist areas and what role does this leadership play within this context?

It is a common assertion that the root of many of Africa’s numerous ills could be traced to poor leadership. At the minimum, leadership at various levels has been thought to be purely superintending.  Key elements would include a leadership that is compromised and quite comfortable with the status quo. The extreme version is the kind of predatory leadership that ignores the people it serves, is quite unapologetic in its non-delivery of the aspirations of the citizenry and takes pride in the destruction of any growth.

The practice of cattle rustling is that of theft of livestock amongst pastoralist groups whose main livelihood is dependent on livestock. Pastoralists in Ethiopia, Kenya, Sudan and Uganda have been engaged in cattle rusting - a practice that many describe to be a mechanism for restocking livestock decimated by drought and other factors. Depleted livestock, limited pasture and water from the cumulative effect of cyclic drought, as well as the availability of small arms are currently forcing aggressive and violent restocking measures. In the process of these negative measures that include cattle rustling, the conflicts have been violent with evidence of pastoralists losing their lives from increased in-country, inter-community and cross-border raids.

Recently, some media houses in Kenyan reported fatalities of over 30 pastoralists as a result of one single case of cattle rustling in the Samburu district. There is an absence of systematic monitoring mechanisms, thus there is very little record of mortality rates. The information one gets would vary considerably depending on the source. Regardless, one would expect a general outrage following reports of thirty people dead in one village, but that is hardly the case. Pastoralists occupy marginal areas in most of these countries and issues affecting them also tend to be marginal in the national conscience.

Just like leadership in other settings, leadership in pastoralist communities in the Eastern and Horn of Africa falls within the formal and informal/traditional categories.

If a simple measure of the success of the leadership within formal government is in its delivery of basic services and policy making that is sensitive to the people’s needs, then a critical assertion is that most of the governments where pastoralists exists have failed. There is widespread weakness in the provision of security for pastoralists and their livelihoods, which is exacerbated by lack of provision of social amenities and services such as schools or medical facilities. Infrastructure is at a bare minimum and systems of public accountability are unheard of in most of these pastoralist areas. This does not quite mean that there is no government effort to deal with problems in pastoralist areas. There have been numerous conflict prevention and peace-building interventions over time. Also, disarmament exercises have been attempted producing mixed results.

Local political leadership in the formal government structure in most pastoralist zones might seem to know the cause and solution to the problems affecting pastoralists but this usually is from a theoretical perspective. In most cases, they tend to blame the government for failing to provide security and development. Essentially, this comes down to a leadership vacuum because most politicians are current or former members of parliament. As parliamentarians, they form part of the government in representing their constituencies. They also tend to blame neighbouring political leaders whom they accuse of incitement whenever their own communities are affected by cattle rustling. In addition, some politicians have also been blamed of capitalizing on the ignorance of their communities in view to perpetuate poverty and promote their personal political agendas.

Some of the solutions ascribed include budgetary allocation to pastoralist areas as well as deliberate efforts to improve infrastructure, development and security. In most cases, there is buck passing and no one seems to provide leadership out of the quagmire that pastoralist face.

The traditional leadership made up of various categories such as elders as well as seers who are believed to have the capabilities of ‘seeing’ into the future have played various roles in pastoralist conflicts. It is quite difficult to generalise but it is a common perception that these traditional leaders have played the role of both war and peacemakers. They have been variously charged with aiding and abetting cattle rustling by sanctioning raids or even performing blessing ceremonies on youths before a cattle raid exercise.

There is also evidence of many elders engaged in dispute settlement or those who curse youths in order to deter cattle raids. Hence, it is a challenge to categorise this kind of leadership as one that is either good or bad. What is clear is that pastoralists are entitled to their rights just like any other set of people and while their tenacity to survive under these harsh conditions is widely admired, this does not give anyone the right to severely test their will to live.

It is perhaps not all gloom and doom. A younger generation of traditional and local leaders could make a difference. Recently in the Karamoja region of Uganda, an elaborate ceremony to pass the mantle of leadership over to another set of leaders was held. Historically it takes at least forty years to transfer power from one generation to another. However the highest leadership age, commonly known as ngimoru (mountain) overstayed its tenure. It has now passed the leadership structure to the next age set known as the gazelles.

This current leadership in Karamoja has a rare opportunity to capitalise on these changes and usher in a new era of transformational leaders who would turn around the lives of pastoralists and lay to rest the practice that is cattle rustling once and for all. If such a model works well in Karamoja, it is worthwhile to replicate to other pastoralist zones in Eastern Africa as the search for sustainable solutions continues.

ISS Today written by Abeba B. Amene, Civil Society and Community Outreach, Mifugo Project, ISS Nairobi 

The African continent has had very few transformational leaders who have inspired hope, went beyond the ordinary and felt it necessary to transform lives. On the particular issue of cattle rustling and insecurity, the question to pose perhaps is what kind of leadership exists in pastoralist areas and what role does this leadership play within this context?

It is a common assertion that the root of many of Africa’s numerous ills could be traced to poor leadership. At the minimum, leadership at various levels has been thought to be purely superintending.  Key elements would include a leadership that is compromised and quite comfortable with the status quo. The extreme version is the kind of predatory leadership that ignores the people it serves, is quite unapologetic in its non-delivery of the aspirations of the citizenry and takes pride in the destruction of any growth.

The practice of cattle rustling is that of theft of livestock amongst pastoralist groups whose main livelihood is dependent on livestock. Pastoralists in Ethiopia, Kenya, Sudan and Uganda have been engaged in cattle rusting - a practice that many describe to be a mechanism for restocking livestock decimated by drought and other factors. Depleted livestock, limited pasture and water from the cumulative effect of cyclic drought, as well as the availability of small arms are currently forcing aggressive and violent restocking measures. In the process of these negative measures that include cattle rustling, the conflicts have been violent with evidence of pastoralists losing their lives from increased in-country, inter-community and cross-border raids.

Recently, some media houses in Kenyan reported fatalities of over 30 pastoralists as a result of one single case of cattle rustling in the Samburu district. There is an absence of systematic monitoring mechanisms, thus there is very little record of mortality rates. The information one gets would vary considerably depending on the source. Regardless, one would expect a general outrage following reports of thirty people dead in one village, but that is hardly the case. Pastoralists occupy marginal areas in most of these countries and issues affecting them also tend to be marginal in the national conscience.

Just like leadership in other settings, leadership in pastoralist communities in the Eastern and Horn of Africa falls within the formal and informal/traditional categories.

If a simple measure of the success of the leadership within formal government is in its delivery of basic services and policy making that is sensitive to the people’s needs, then a critical assertion is that most of the governments where pastoralists exists have failed. There is widespread weakness in the provision of security for pastoralists and their livelihoods, which is exacerbated by lack of provision of social amenities and services such as schools or medical facilities. Infrastructure is at a bare minimum and systems of public accountability are unheard of in most of these pastoralist areas. This does not quite mean that there is no government effort to deal with problems in pastoralist areas. There have been numerous conflict prevention and peace-building interventions over time. Also, disarmament exercises have been attempted producing mixed results.

Local political leadership in the formal government structure in most pastoralist zones might seem to know the cause and solution to the problems affecting pastoralists but this usually is from a theoretical perspective. In most cases, they tend to blame the government for failing to provide security and development. Essentially, this comes down to a leadership vacuum because most politicians are current or former members of parliament. As parliamentarians, they form part of the government in representing their constituencies. They also tend to blame neighbouring political leaders whom they accuse of incitement whenever their own communities are affected by cattle rustling. In addition, some politicians have also been blamed of capitalizing on the ignorance of their communities in view to perpetuate poverty and promote their personal political agendas.

Some of the solutions ascribed include budgetary allocation to pastoralist areas as well as deliberate efforts to improve infrastructure, development and security. In most cases, there is buck passing and no one seems to provide leadership out of the quagmire that pastoralist face.

The traditional leadership made up of various categories such as elders as well as seers who are believed to have the capabilities of ‘seeing’ into the future have played various roles in pastoralist conflicts. It is quite difficult to generalise but it is a common perception that these traditional leaders have played the role of both war and peacemakers. They have been variously charged with aiding and abetting cattle rustling by sanctioning raids or even performing blessing ceremonies on youths before a cattle raid exercise.

There is also evidence of many elders engaged in dispute settlement or those who curse youths in order to deter cattle raids. Hence, it is a challenge to categorise this kind of leadership as one that is either good or bad. What is clear is that pastoralists are entitled to their rights just like any other set of people and while their tenacity to survive under these harsh conditions is widely admired, this does not give anyone the right to severely test their will to live.

It is perhaps not all gloom and doom. A younger generation of traditional and local leaders could make a difference. Recently in the Karamoja region of Uganda, an elaborate ceremony to pass the mantle of leadership over to another set of leaders was held. Historically it takes at least forty years to transfer power from one generation to another. However the highest leadership age, commonly known as ngimoru (mountain) overstayed its tenure. It has now passed the leadership structure to the next age set known as the gazelles.

This current leadership in Karamoja has a rare opportunity to capitalise on these changes and usher in a new era of transformational leaders who would turn around the lives of pastoralists and lay to rest the practice that is cattle rustling once and for all. If such a model works well in Karamoja, it is worthwhile to replicate to other pastoralist zones in Eastern Africa as the search for sustainable solutions continues.

by Godfrey M Musila, Senior Researcher, International Crime in Africa Programme, ISS Pretoria

On 14 August 2009, Pre-Trial Chamber II (PTC II) of the International Criminal Court (ICC) issued an unprecedented decision granting interim or conditional release to the former Congolese vice-president Jean-Pierre Bemba, who is facing charges of war crimes and crimes against humanity. The charges were confirmed in June 2009. Following the August 14 decision, the Court contacted Belgium, Portugal, France, Germany, Italy and South Africa to discuss the possibility of hosting Bemba until the case against him is concluded.

The decision to release Bemba has raised some controversy. Some have suggested that in some sense the ICC ‘has failed’ by deciding to release Bemba. Referring to a South African official who reportedly stated that South Africa would not host Bemba, one commentator intimated that the request ‘present[ed] the South African government with a diplomatic conundrum’. In this regard, the commentator alluded to the African Union’s decision of July 3 requesting African states not to cooperate with the ICC in the case against Sudanese president Omar Al Bashir. (See ‘SA decides not to host warlord Bemba’ 16 August Sunday Independent.) Some organizations that work with victims of human rights abuses are said to be ‘in shock’ and ‘disappointed’ over the decision.

It is necessary to address some of these concerns and place the PTC II’s decision within its proper context.

First, the AU’s decision requesting African States Parties to the ICC not to cooperate with the Court is specifically limited to the case against President Al-Bashir. Linking that decision to any of the two other cases in Darfur, let alone the Bemba case (which relates to crimes allegedly committed in Central African Republic) to explain South Africa’s reported refusal to host Bemba, distorts the facts and is patently absurd.

Second, conditional release has no bearing on Bemba’s guilt. Furthermore, it cannot be suggested that ‘release’ means that the case against Bemba is weak, or somehow unfounded, as the release decision does not go into the merits of the case. Neither can one argue that by ordering Bemba’s release, the Court (judge) has failed in its duties. Bemba’s release is a matter of law and procedure.

The Rome Statute guarantees fair trial, including the presumption of innocence. The right of an accused to be released pending determination of his/her case is protected in human rights treaties (article 9 International Covenant on Civil and Political Rights) and the Rome Statute itself (article 60). The same provision provides for periodic review of the Court’s decision on the interim release of a detained person. Bemba succeeded on his fourth attempt, the first application to be released having failed in October 2008. Article 58 of the Rome Statute outlines the conditions to be met for a detained person to be granted interim release pending trial. The judges must satisfy themselves that: 1) continued detention is necessary for his/her appearance at trial; 2) the accused does not obstruct or endanger the investigation or the court proceedings; and 3) the accused does not continue to commit an ICC crime arising from the same circumstances as the charges against him/her. PTC II considered that Bemba was not a flight risk and that there was a change of circumstances to warrant the release order.

Third, Belgium and Portugal were nominated by PTC II as potential host states while Italy, South Africa, the DRC and Germany were identified by Bemba himself. In availing themselves to assist the Court in this case, the states are acting in terms of their obligations as States Parties to the Rome Statute. Article 86 of the Rome Statute provides that ‘States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.’ Furthermore, article 87 of the Statute empowers the Court to make requests for cooperation to States Parties respecting various aspects of its work. Regulation 51 of the Regulations of the ICC requires the Court to consult identified potential host states.

However, the obligation to cooperate with and assist the Court does not mean that an identified state has no choice in the matter. The state can make its case for not being able to host the accused or can attach reasonable conditions to hosting him, in addition to those set by the Court. As noted by the PTC II, Bemba’s interim release is conditional. Bemba himself is said to have made a number of undertakings that will be shared with the states in question. Requested states can impose further conditions on the accused before accepting to host him. This is precisely why hearings will be held between the Court, the accused and relevant states. The hearings were initially scheduled to be held on 7 to 11 September and on 14 September, but have been postponed pending determination of the Prosecutor’s appeal to the August 14 decision to release Bemba. Once the Appeals Chamber rules on PTC II’s conditional release, a new hearing will be convened (if the Appeals Chamber agrees with PTC II that Bemba poses no flight risk and can be released).

No matter the eventual outcome of this matter, the decision by PTC II to release Bemba conditionally underscores at least four things:

1. The Rome Statute protects the rights of those accused or suspected of committing crimes and that the ICC is obliged to ensure that these rights are respected.
2. The independence of the judges and the fact that they decide in terms of the Statute, no matter what position the Office of the Prosecutor, victims or the defence assumes on a particular issue. It is noteworthy that the Prosecutor has appealed the PTC II’s decision, and has obtained a decision to suspend the release of Bemba until the Appeals Chamber decision.
3. Although victims and relevant NGOs may take issue with the Court over the release decision, the ruling constitutes a delicate balance between the fundamental rights of defendants and the imperatives of international criminal justice. The rights of victims, which are recognized in the Rome Statute, are subsumed in the latter concept as exemplified in article 58 criteria outlined above.
4. States Parties are crucial to the work of the ICC and will from time to time be called up to assist the Court in various ways, including giving effect to its orders. Without state cooperation, the ICC cannot achieve its mandate.

by Godfrey M Musila, Senior Researcher, International Crime in Africa Programme, ISS Pretoria

On 14 August 2009, Pre-Trial Chamber II (PTC II) of the International Criminal Court (ICC) issued an unprecedented decision granting interim or conditional release to the former Congolese vice-president Jean-Pierre Bemba, who is facing charges of war crimes and crimes against humanity. The charges were confirmed in June 2009. Following the August 14 decision, the Court contacted Belgium, Portugal, France, Germany, Italy and South Africa to discuss the possibility of hosting Bemba until the case against him is concluded.

The decision to release Bemba has raised some controversy. Some have suggested that in some sense the ICC ‘has failed’ by deciding to release Bemba. Referring to a South African official who reportedly stated that South Africa would not host Bemba, one commentator intimated that the request ‘present[ed] the South African government with a diplomatic conundrum’. In this regard, the commentator alluded to the African Union’s decision of July 3 requesting African states not to cooperate with the ICC in the case against Sudanese president Omar Al Bashir. (See ‘SA decides not to host warlord Bemba’ 16 August Sunday Independent.) Some organizations that work with victims of human rights abuses are said to be ‘in shock’ and ‘disappointed’ over the decision.

It is necessary to address some of these concerns and place the PTC II’s decision within its proper context.

First, the AU’s decision requesting African States Parties to the ICC not to cooperate with the Court is specifically limited to the case against President Al-Bashir. Linking that decision to any of the two other cases in Darfur, let alone the Bemba case (which relates to crimes allegedly committed in Central African Republic) to explain South Africa’s reported refusal to host Bemba, distorts the facts and is patently absurd.

Second, conditional release has no bearing on Bemba’s guilt. Furthermore, it cannot be suggested that ‘release’ means that the case against Bemba is weak, or somehow unfounded, as the release decision does not go into the merits of the case. Neither can one argue that by ordering Bemba’s release, the Court (judge) has failed in its duties. Bemba’s release is a matter of law and procedure.

The Rome Statute guarantees fair trial, including the presumption of innocence. The right of an accused to be released pending determination of his/her case is protected in human rights treaties (article 9 International Covenant on Civil and Political Rights) and the Rome Statute itself (article 60). The same provision provides for periodic review of the Court’s decision on the interim release of a detained person. Bemba succeeded on his fourth attempt, the first application to be released having failed in October 2008. Article 58 of the Rome Statute outlines the conditions to be met for a detained person to be granted interim release pending trial. The judges must satisfy themselves that: 1) continued detention is necessary for his/her appearance at trial; 2) the accused does not obstruct or endanger the investigation or the court proceedings; and 3) the accused does not continue to commit an ICC crime arising from the same circumstances as the charges against him/her. PTC II considered that Bemba was not a flight risk and that there was a change of circumstances to warrant the release order.

Third, Belgium and Portugal were nominated by PTC II as potential host states while Italy, South Africa, the DRC and Germany were identified by Bemba himself. In availing themselves to assist the Court in this case, the states are acting in terms of their obligations as States Parties to the Rome Statute. Article 86 of the Rome Statute provides that ‘States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.’ Furthermore, article 87 of the Statute empowers the Court to make requests for cooperation to States Parties respecting various aspects of its work. Regulation 51 of the Regulations of the ICC requires the Court to consult identified potential host states.

However, the obligation to cooperate with and assist the Court does not mean that an identified state has no choice in the matter. The state can make its case for not being able to host the accused or can attach reasonable conditions to hosting him, in addition to those set by the Court. As noted by the PTC II, Bemba’s interim release is conditional. Bemba himself is said to have made a number of undertakings that will be shared with the states in question. Requested states can impose further conditions on the accused before accepting to host him. This is precisely why hearings will be held between the Court, the accused and relevant states. The hearings were initially scheduled to be held on 7 to 11 September and on 14 September, but have been postponed pending determination of the Prosecutor’s appeal to the August 14 decision to release Bemba. Once the Appeals Chamber rules on PTC II’s conditional release, a new hearing will be convened (if the Appeals Chamber agrees with PTC II that Bemba poses no flight risk and can be released).

No matter the eventual outcome of this matter, the decision by PTC II to release Bemba conditionally underscores at least four things:

1. The Rome Statute protects the rights of those accused or suspected of committing crimes and that the ICC is obliged to ensure that these rights are respected.
2. The independence of the judges and the fact that they decide in terms of the Statute, no matter what position the Office of the Prosecutor, victims or the defence assumes on a particular issue. It is noteworthy that the Prosecutor has appealed the PTC II’s decision, and has obtained a decision to suspend the release of Bemba until the Appeals Chamber decision.
3. Although victims and relevant NGOs may take issue with the Court over the release decision, the ruling constitutes a delicate balance between the fundamental rights of defendants and the imperatives of international criminal justice. The rights of victims, which are recognized in the Rome Statute, are subsumed in the latter concept as exemplified in article 58 criteria outlined above.
4. States Parties are crucial to the work of the ICC and will from time to time be called up to assist the Court in various ways, including giving effect to its orders. Without state cooperation, the ICC cannot achieve its mandate.

Henri Boshoff. Head Peace Missions Programme, Institute for Security Studies, Pretoria Office and Lindy Heinecken. Professor of Sociology at Stellenbosch University

The scenes of running battles between police and striking soldiers on 26 August 2009 in front of the Union Buildings, Pretoria, came as a shock not only to South Africans, but also to the international community. People immediately asked whether this is a mutiny, how will it influence cooperation between the South African Police Service (SAPS) and the South African National Defence Force (SANDF) and will this incident and a possible backlash influence the 2010 Fifa World Cup? The question, however, must be asked why soldiers felt the need to protest in front of the Union Buildings in order to bring their grievances to the attention of government.

This situation is not unique to South Africa. There has been an increase in military unionism in the post-Cold War era in many places, due to a range of factors. Even in the UK where military unions are considered the “final taboo� we saw the establishment of the British Armed Forces Federation, which has come out strongly in defence of the rights of military personnel.

In South Africa the issue of how to resolve grievances of members of the Security Forces goes back to 1994. After 1994 the police and prisons services were subject to widespread labour unrest, eventually culminating in labour rights being extended to these sectors under the new Labour Relations Act (LRA), 66 of 1995. This left only the SANDF and Intelligence Service outside the scope of the LRA. Following the International Labour Organisation (ILO) Convention No 87 of 1948, on the Freedom of Association and Protection of the Right to Organize, the SANDF was granted reprieve to create its own labour relations regulations.

Of interest is that the former South African Defence Force (SADF) anticipated that military personnel may want to belong to trade unions and swiftly ratified Section 126 of the Defence Act, 44 of 1957 in September 1993 to prohibit military personnel from joining or belonging to a trade union and from striking or participating in the activities of the union. 

The SANDF after 1994 realised that they needed to put in place some structure to address their own labour issues internally. In 1996 they established “Forum Structures� for different rank groups to address individual and collective grievances and complaints or suggestions to higher authorities. These Forums made no provision for collective dispute resolution and failed to pre-empt trade unionism. In fact, one could argue that they fuelled support for unions, given the inefficiency of these structures. On 26 August 1994, the South African National Defence Union (SANDU) was established. Nonetheless, the SANDF was resolute not to recognize or negotiate with any union representing military personnel, even threatening to prosecute members for doing so. This was the beginning of a long ongoing legal process that has not yet been concluded.  The legal issues were around the following:

• Joining trade unions or participating in trade union activities.
• Participating in strikes and acts of public protest
• Collective bargaining

On 26 May 1999 the Constitutional Court (CC) confirmed that Section 126B of the Defence Act 44 of 1957, prohibiting military personnel from joining trade unions, participating in strikes and acts of public protest, was indeed unconstitutional. This was a victory for SANDU leaving them with the sticky point of “collective bargaining�. This is one of the points that are still unclear and a bone of contention, despite numerous court cases.

The legal processes resulted in the enactment of Chapter 20 of the General Regulations for the SANDF published in the Government Gazette of 20 August 1999 (hereafter the General Regulations). The General Regulations provided, amongst others, for the organisational rights of military trade unions (MTUs), the establishment of a Military Bargaining Council (MBC), Military Arbitration Board (MAB) and the procedures to refer matters to the High Court in case of dispute. For the first time in the history of South Africa, military personnel could now legally belong to unions providing they met the 5000-member threshold requirement for registration and 15000 for recognition to serve on the MBC.

This issue is at the core of the current standoff between the SANDF and the two trade unions, SANDU and the South Africa Security Forces Union (SASFU). The SANDF is disputing the fact that the trade unions are reaching the threshold, basically baring them from the MBC.

Remarks by the Minister of Defence, and the MK and APLA Veterans organisations that they do not like trade unions and by Judge William Heath that the labour law is not applicable to the police and soldiers is misconstrued and contrary to the principles enshrined in the Constitution. The fact that the armed forces have continued to manage labour relations from a typically unitarist perspective, while the legal dispensation supports a more pluralist approach has ultimately led to a confrontational approach to employee relations in the SANDF.

Unions do not create grievances. It is the inability of management (or in this case military leadership) to resolve grievances or address the aspirations of members that led to the formation of unions in the first place. Where the grievance procedures are not functioning properly (over 4000 grievances remain unresolved); where the chain of command is dysfunctional and political leadership remains insensitive to the needs of soldiers; what alternatives remain for soldiers but to protest? Unfortunately our history shows that militant action works and this where things have gone horribly wrong. Unlike other employees, we have disgruntled armed soldiers voicing their anger publicly at the State. For the sake of the country it is important to break the impasse between the management of the SANDF and the soldiers and so bring stability to the SANDF. For this, there needs to be a spirit of cooperation, not suppression. Surely the ‘defenders of our democracy’ have the right to be heard?

Henri Boshoff. Head Peace Missions Programme, Institute for Security Studies, Pretoria Office and Lindy Heinecken. Professor of Sociology at Stellenbosch University

The scenes of running battles between police and striking soldiers on 26 August 2009 in front of the Union Buildings, Pretoria, came as a shock not only to South Africans, but also to the international community. People immediately asked whether this is a mutiny, how will it influence cooperation between the South African Police Service (SAPS) and the South African National Defence Force (SANDF) and will this incident and a possible backlash influence the 2010 Fifa World Cup? The question, however, must be asked why soldiers felt the need to protest in front of the Union Buildings in order to bring their grievances to the attention of government.

This situation is not unique to South Africa. There has been an increase in military unionism in the post-Cold War era in many places, due to a range of factors. Even in the UK where military unions are considered the “final taboo� we saw the establishment of the British Armed Forces Federation, which has come out strongly in defence of the rights of military personnel.

In South Africa the issue of how to resolve grievances of members of the Security Forces goes back to 1994. After 1994 the police and prisons services were subject to widespread labour unrest, eventually culminating in labour rights being extended to these sectors under the new Labour Relations Act (LRA), 66 of 1995. This left only the SANDF and Intelligence Service outside the scope of the LRA. Following the International Labour Organisation (ILO) Convention No 87 of 1948, on the Freedom of Association and Protection of the Right to Organize, the SANDF was granted reprieve to create its own labour relations regulations.

Of interest is that the former South African Defence Force (SADF) anticipated that military personnel may want to belong to trade unions and swiftly ratified Section 126 of the Defence Act, 44 of 1957 in September 1993 to prohibit military personnel from joining or belonging to a trade union and from striking or participating in the activities of the union. 

The SANDF after 1994 realised that they needed to put in place some structure to address their own labour issues internally. In 1996 they established “Forum Structures� for different rank groups to address individual and collective grievances and complaints or suggestions to higher authorities. These Forums made no provision for collective dispute resolution and failed to pre-empt trade unionism. In fact, one could argue that they fuelled support for unions, given the inefficiency of these structures. On 26 August 1994, the South African National Defence Union (SANDU) was established. Nonetheless, the SANDF was resolute not to recognize or negotiate with any union representing military personnel, even threatening to prosecute members for doing so. This was the beginning of a long ongoing legal process that has not yet been concluded.  The legal issues were around the following:

• Joining trade unions or participating in trade union activities.
• Participating in strikes and acts of public protest
• Collective bargaining

On 26 May 1999 the Constitutional Court (CC) confirmed that Section 126B of the Defence Act 44 of 1957, prohibiting military personnel from joining trade unions, participating in strikes and acts of public protest, was indeed unconstitutional. This was a victory for SANDU leaving them with the sticky point of “collective bargaining�. This is one of the points that are still unclear and a bone of contention, despite numerous court cases.

The legal processes resulted in the enactment of Chapter 20 of the General Regulations for the SANDF published in the Government Gazette of 20 August 1999 (hereafter the General Regulations). The General Regulations provided, amongst others, for the organisational rights of military trade unions (MTUs), the establishment of a Military Bargaining Council (MBC), Military Arbitration Board (MAB) and the procedures to refer matters to the High Court in case of dispute. For the first time in the history of South Africa, military personnel could now legally belong to unions providing they met the 5000-member threshold requirement for registration and 15000 for recognition to serve on the MBC.

This issue is at the core of the current standoff between the SANDF and the two trade unions, SANDU and the South Africa Security Forces Union (SASFU). The SANDF is disputing the fact that the trade unions are reaching the threshold, basically baring them from the MBC.

Remarks by the Minister of Defence, and the MK and APLA Veterans organisations that they do not like trade unions and by Judge William Heath that the labour law is not applicable to the police and soldiers is misconstrued and contrary to the principles enshrined in the Constitution. The fact that the armed forces have continued to manage labour relations from a typically unitarist perspective, while the legal dispensation supports a more pluralist approach has ultimately led to a confrontational approach to employee relations in the SANDF.

Unions do not create grievances. It is the inability of management (or in this case military leadership) to resolve grievances or address the aspirations of members that led to the formation of unions in the first place. Where the grievance procedures are not functioning properly (over 4000 grievances remain unresolved); where the chain of command is dysfunctional and political leadership remains insensitive to the needs of soldiers; what alternatives remain for soldiers but to protest? Unfortunately our history shows that militant action works and this where things have gone horribly wrong. Unlike other employees, we have disgruntled armed soldiers voicing their anger publicly at the State. For the sake of the country it is important to break the impasse between the management of the SANDF and the soldiers and so bring stability to the SANDF. For this, there needs to be a spirit of cooperation, not suppression. Surely the ‘defenders of our democracy’ have the right to be heard?