1. PROCESSES AND MECHANISMS OF SECURITY SECTOR
TRANSFORMATION (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 1999
Introduction
The changes in the security sector in post cold war Africa are occurring within varied
political contexts of ‘consolidating democracies, lapsing or stalled democracies,
authoritarian or military dominated states, transitional democracies and conflict torn
societies’ (Luckham, 2001), with their own local dynamics and challenges, and
incorporating rather different prospects for the development of democratic norms and
controls. In consequence, security sector changes cannot be treated as an independent
set of variables or a set of technical and administrative arrangements that
automatically flow from every political reform process and the outcomes do not
always reflect stability and predictability. Although there is not always a teleological
relationship between political reform and security sector reform partly because of the
unique nature of political reform in which power reconfiguration, rather than political
transformation is key, it is our contention that given a set of universal principles that
are responsive to particular country setting, it is still possible to generate an element
of predictability even in the variegated trajectories of outcomes. Hence, while we see
SSR as part of complex political processes – processes that are expressions of
inherently political institutional relationships that are not given nor generalized, our
attempt is to isolate common principles that are helpful to change agents even in these
highly contested terrains..
If security sector transformation process is to derive salience from a complex political
and security environment, a number of factors are worth examining in order to
illuminate our understanding of the issues. These include, but are by no means
limited to: (a) the political, historical, economic and institutional shifts or ‘crisis’
triggering transformation; (b) the nature of the political transition (is it holistic or
pacted) and the impact of transition politics on the security sector; (c) specific ways in
which security challenges are addressed in constitutional terms; how, for example, has
security sector reform been reflected in the post transition constitutional provisions to
take 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 sector
transformation, and to what extent is access to information on the security sector
available and guaranteed, rather than random and privileged?; (d) the quality of the
emergent political leadership, its legitimacy and the perception of its actions; (e)
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2. feasibility of policy prescriptions introduced for security sector reform and the extent
to which the policy prescriptions guarantee institutionalised democratic control
without undermining internal autonomy and professionalism within the security
sector; (f) the nature of civil society involvement in democratic governance of the
security establishments and how this affects the complexity of civil-security relations;
(g) the regional character of conflict and security sector reform agenda and (h) the
nature and content of international assistance in the reform agenda.
1. Democratic Governance & the Security Sector in Africa
Tracing the varying trajectories of democratisation in Africa in the last decade, it is
possible 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 by
this we mean the formal end of authoritarian structures, the strengthening of state
building projects and a break with the erstwhile pattern of rights abuse, conflict
exacerbation and militarism of the decision making processes. It remains one of the
paradoxes of Africa’s decade of democratisation that whilst colonialism, followed by
neo-colonialism and cold war geopolitics provided a grid that upheld statehood
throughout the continent with virtually all African countries establishing some degree
of empirical stateness: juridical boundaries, armies, physical and social
infrastructures, and state and single party bureaucracies – albeit in an authoritarian
manner, the upsurge in democratisation also became intertwined with the fracturing of
African states and its security apparatuses in the 1990s.
Beginning in the mid 1980s in the wake of structural adjustment programmes, as
regimes came under increasing pressure to open their political systems to democratic
contestation and to transform their patrimonial economies into market systems, their
fragility as states were simultaneously exposed. Given the centrality of the security
sector in the entrenchment of the African state during this period, the transitions to
democracy in several countries also exposed the soft underbelly of the African state
and demystified the invincibility of the security sector with grievous implications. As
Eboe Hutchful correctly captured: ‘the decade of the 1990s - which saw the rise of
people driven challenges to militarisation and authoritarianism of African politics—
also witnessed a sharp deterioration in the security environment in a large number of
African countries. Paradoxically, these two processes were somewhat inextricably
intertwined. As Hutchful further observed, “the decomposition of the security
apparatus of the state was intrinsic to the collapse of authoritarian arrangements on
the 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 the
professionalism essential to democratic control of the armed forces.” (Hutchful, 2000)
As was the case with the public sector in general, democratisation presented African
countries with two key challenges in the security sector: on the one hand, that of
establishing effective and accountable security agencies, capable of protecting the
security not only of the state but also of its citizens, and, on the other, that of
establishing 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 the
context of democratic governance. If sound governance is to provide the necessary
link between the democratic intent and process, then the notion of governance must
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3. necessarily be seen as the ability of the State to provide efficient and well functioning
institutions and infrastructures of government – legally backed and socially coherent –
that together establish and maintain an environment in which human security and
human development takes place.
Hence, the crux of the debate about democratic governance in the security sector is
also a discussion about the development of effective oversight mechanisms, as well as
that of creating viable security institutions able to provide security for the state as well
as for ordinary citizens, in the quest for democratic development and ownership of the
state. Yet, while the quest for ‘good governance’ has been applied to many aspects of
the State reform agenda in the late 1980s, one sector that was hardly touched was the
security sector. Except in the narrow sense of the concerns expressed about levels of
military expenditure, development agencies and multilateral institutions hardly
connected governance in the security sector with the notion of improving the capacity
and efficiency of security forces to effectively meet changing challenges in their
rapidly changing local and international environment. Even in their exclusive focus
on militarisation and military expenditure, this was seen more as a bean-counting
exercise in which reduction in military expenditure automatically translated to
increase in development and social spending.
More fundamentally, the fact that militarisation and military expenditure were not
seen as a process whereby the civilian sphere of society is increasingly militarised – a
multi-dimensional process that is qualitative and quantitative - containing a range of
phenomena including defence spending, the growth of armed forces, the increasing
use of force in conflict management and resolution, the role of the military in political
decision making process and the spread of militaristic values in society underscored
the limited understanding of the issues that governance in the security sector should
be concerned with and ignored the tendency of the state’s loss of monopoly over
means of violence. Equally, the fact that the focus was exclusively military, rather
than the entire security sector - it had negative policy implications as it not only failed
to take cognisance of objective security threats that states faced but also encouraged
States to shroud security issues in needless secrecy. States were quick to rebuff any
effort at subjecting security sector affairs to public scrutiny as “undue interference in
the internal affairs of a sovereign state”.
The fact that the decade of democratization also featured in many cases a mere
reconfiguration of political, economic and military elites, rather than an opening up of
the political system and/or broadening of participation, citizens wanted more than the
choiceless democracy that allowed citizens only the opportunity of ‘voting without
choosing (Ake, 1999) and this led to the relentless clamouring for ‘people driven
constitutions 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 set
of rules and administrative arrangements, meant to enhance state power
unaccountably, citizens began to contend that a constitution by its very nature should
be more than a mere set of rules and laws regulating society and government. It is
more than a social contract or even the grundnorm. It is rather an expression of the
general will of a nation. To them, the constitution is that single document under which
diverse and even ideologically opposed groups unite and rally in defence of
democracy.
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4. Indeed, the hostility to the old State in the intervening cold war years played a major
part in encouraging this notion of the new constitutionalism that is people driven and
process led – aimed at reconstituting the African State along equitable, transparent,
socially responsible and just lines. At every level on the continent, the idea has taken
root that the African State must be refashioned to reflect the realities of their
multifaceted societies. Today, the struggle for constitutional reform is on going in at
least twenty African countries and it typifies to the generality of the people why rule-
based and consensus driven governance matters. Additionally, the change in focus
from constitutionality - where these documents are merely legal instruments with no
standing with the people to constitutionalism - where constitutions are now seen as
tools for social capital enhancement and bridge-building in the public realm,
represents the first and perhaps most critical step in shifting state ownership from the
leaders to the people. Even so, there remains an almost exclusive focus on the re-
organisation of government structures, with less attention paid to restoration of
liberties and return of associational life thus giving less importance to consensus
building amongst civil society and between the ordinary citizen and the state.
Yet in order to formulate African political cultures grounded in human rights and
good governance, an organic link is needed between the constitution as a rule of law
instrument primarily concerned with restraining government excesses, and the
constitution as a legitimation of power structures and relations based on a broad social
consensus in diverse societies. Many have seen the task at hand is to move away from
the old constitutionality which overemphasised law and state power towards a new
political and socio-economic constitutionalism aimed at restoring trust in the State
whilst arresting desertion from it. For understandable reasons, the security sector
remains the most contested in all of the terrains within which this is meant to happen
in Africa, yet if the quest for constitutional governance does not extend to the security
sector, it is hardly an exaggeration that whatever progress is made in order sectors run
the overt risk of compromise.
II. Constitutionalising Security Sector Reform in Africa
Even in African countries with long and unbroken tradition of democratic governance,
little attention has traditionally been paid to the structure and administrative context
within which policy decisions are made in the defence and security sectors – who the
principal actors are, their relationships to one another, and the statutory and legal
provisions governing their spheres of responsibility and competence among military,
civil, and paramilitary institutions. With the renewed interest in security sector
transformation that is inclusive, legitimate and transparent – examining the
administrative and structural context within which policies are adopted would appear
to 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 colonial
character 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 the
territories of the imperial rulers to sustain the old order’.(Gutteridge, 1969). To
understand the security sector governance strategy adopted in post-independence
African states therefore, we examine the central organisations of defence and security
in the metropolitan states of Great Britain and France and the superpower states of
United States and the Soviet Union. Although, states like Portugal, Germany and
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5. Belgium also had territories in Africa, it is not difficult to conclude that in terms of
impact, the four countries examined below had more influence in the shaping and
functioning of the African militaries and security apparatus in the preceding decades.
By looking at the constitutional and legal standing of the security sector in these
countries, the administrative structure of the security institutions,
parliamentary/legislative oversight of the security sector, freedom of information and
the level of civil society involvement in the making of this sector, our understanding
of legacy bequeathed by these external models of governance in the security sector
should improve our understanding of accountability, efficiency and ownership
questions in the governance of the security sector.
a) Constitutional basis of governance in the security sector: Although constitutions
do not determine the policies of governments or the behaviour of its officials, they
define the parameters and structures of formal authority in every states and serve as
the embodiment of public ownership as guidelines and guarantors of democracy as
well 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 the
shape and character of security in Africa, have formal and objective control
mechanisms and lines of authority that are not always clearly defined even in the
constitutions. In theory therefore, the accountability of government and its security
structures to parliamentary authority and oversight – as the institution that is the
embodiment of the people’s sovereignty and popular will ought not to be in doubt, but
in practice the situation is much more complicated.
The 1958 Constitution of France, which ushered in the fifth republic in France also
had the greatest influence on several newly independent Franco-phone states. Yet, the
constitution was a lot less clear on security issues – especially with regards to the role
of the President and the Prime Minister as well as the overriding authority of
parliament. On the one hand, the President is the Head of the Armed Forces (article
15), signatory to all treaties (article 5), appoints prime minister and members of
government (art.8), presides over Council of Ministers and various defence and
security committees (art.15) and can take any measure in the light of circumstances to
restore law and order(art.16). On the other hand, the constitution is clear about the
role of government in defining and directing the policy of the nation and its
responsibility for the armed forces (art.20). From this latter constitutional and
parliamentary perspective therefore, the government and the Prime Minister are the
principal 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 of
January 1959 which defined the central organisation of defence. The ordinance not
only conferred on the PM the general management of defence but also its military
management in terms of defining the objectives, approves the implementation strategy
and endorses the resource allocation to the services and the measures necessary to
meet defence requirements. In spite of these elaborate provisions, the president still
presides over cabinet meetings and committee meetings. Given the Prime Minister’s
subordination to the president, it is often difficult for him to take decisions
independent of the President’s approval under these constitutional arrangements. The
only period when this ambiguity is real is when the President and the Prime Minister
come from different parties, as is the case currently in France. As was the case during
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6. the period of cohabitation under President Mitterand, it is possible to attribute the drift
in 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, the
personality of the players determined to a large extent the path and pace of
governance in the security sector and all that was achieved in this regard was
minimum civilian control in an era of military continuity.
Virtually all the countries that gained independence from France replicated this
complex and complicated relationship between the Head of State and Head of
Government and this impacted significantly on the stability of the polities and the
nature of civil-military relations.
Constitutionally, parliament controls the armed forces in Britain. This control dates
back to the 1688 Bill of Rights which prohibits the maintenance of a standing army in
time of peace without parliamentary approval. Although the parliament in Britain
certainly has more control than its French counterpart, its control mechanisms often
give a misleading impression of what really goes on and whose influence prevails at
any 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 delicately
balanced one often tilted to the side of the professionals. Even when these
Parliamentary oversight committees gain the requisite knowledge and show the
determination to ensure accountability, their action and their “reports are too often
brushed aside”. Bruce George, Chairman of UK’s Defence Committee put it rather
aptly when he suggests that the UK “has one of the least accountable security and
intelligence services in the western world” and that “unlike the legislatures of other
states, Commons Select Committees have very little formal power”(George, 1998).
It is no surprise that many ex-British colonies have also largely replicated this format
and created parliamentary committees that act merely as rubber stamps rather than
provide countervailing authority and independent verification of proposals from
government ministers and military professionals. Only in countries where wholesale
transfers of parliamentary norms and conventions have been modified with alternative
parliamentary control mechanisms has the situation marginally improved as in South
Africa.
b) Transfer of colonial defence structures and arrangements and objective civilian
control mechanisms: As with the replication of constitutional arrangements in theory,
virtually all the departing colonial authorities bequeathed security structures of
governance that were already in existence with little on no modification to the new
governments. Given the long history of interaction with the metropolitan force and the
crucial role of the dependent territories in the victory of the allied powers in World
War II, Africans in the colonial armies developed a more confident political and
social outlook that did not exclude direct involvement in political affairs and this
constituted a major worry to the new political elite in charge of these independent
states. Whereas the political elite distrusted the local military institution put together
at the instance of the metropolitan power, the ruling elite still had tremendous trust in
the colonial power and acceded to various military pacts in most of the newly
independent Francophone states and even an attempted Anglo-Nigerian Defence Pact
which collapsed in the wake of protests in 1961.
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7. Even after the abrogation of these various military assistance and defence pacts, the
dependence on the colonial power by the ruling government was still ingrained in the
leadership, hence the absence of locally codified or articulated defence policies and
national security arrangements, broadly outlining objectives as well as identifying
internal and external threats based on emergent developments, and not as a proxy in
the super power rivalry of the period. Hence, to understand the national security
structures in many of the countries, all that was needed was a visit to the metropolitan
country’s Ministry of Defence and all the formal mechanisms; lines of authority and
concentration on objective control mechanisms shape the defence planning process in
the satellite states. Whilst the cold war situation might have explained these
developments, 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 is
needed to correct the scourge of political militarism is for military power to reside
fully with the elected authorities and completely outside the realm of professional
soldiers ignores the complex nature of the relationship between the military and the
civilian political elite. This model of civil-military relations and good governance in
the security sector continues to assume a level playing field in which “autonomous
military professionalism” can be predicated on “objective civilian control” which
encourages an “independent military sphere” that does not “interfere in political
matters”. In reality, this perspective treats civilian control as an event, a fact of
political life, not a process, which exists in a continuum.
As argued above, security sector reform should not be seen as a set of technical and
administrative arrangements that automatically flow from every transition, but part of
complex political processes, which must address the root causes of militarism in
society, beyond the formal removal of the military from political power. While
formal control mechanisms are not in themselves wrong, the reality underpinning the
crisis of governance in the security sector underscores the point that subordination of
the armed forces to civil control can only be achieved when civil control is seen as
part of a complex democratic struggle that goes beyond elections – processes that are
expressions of institutional relationships that are inherently political, subjective and
psychological.
In countries where the military has become entrenched in all facets of civic and
economic life and where politics has just featured a reconfiguration rather than a
transformation of power, anchoring security sector reform to the notion of an a-
political military fully subordinated to the supreme political elite underestimates the
seriousness of the issues at stake. Hence, it is useful to address the constitutional
dimensions of democratic control through a clarification of the role and mission of
security services; developing a civilian, democratic security policy expertise, ensuring
professional autonomy and creating the necessary opportunities for networking and
dialogue between the military and civil society representatives to ensure ownership of
the governance process if democratic governance is to gain a foothold in the security
sector.
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8. Towards an ‘African’ model of Constitutional Governance in the Security
Sector: Processes & Mechanisms
From the above, it is evident that the tendency to view security challenges and
governance of the sector in purely military terms is a legacy of Africa’s colonial past
and the cold war era, which needs to change. Since current security challenges are
first and foremost political before assuming a military character, most observers of the
contemporary African scene are agreed that participatory and collective efforts will
yield more positive dividends than prescriptive and formal mechanisms of ‘objective
civilian control’.
Given the role of the security sector – especially its military component in the last
four decades of Africa’s post independence history, the location of the security sector
in terms of its accountability to the people and their elected representatives has
become paramount to the debate about governance in the security sector. Second, as
a national institution - the security sector relies on the public for support and
sustenance in order to fulfill its constitutional mandate. Third, the idea that security
issues are the sole prerogative of security professionals is gradually giving way to a
more inclusive public discourse and ownership. Consequently, the idea is now widely
accepted that the State must resolve the problems of accountability and address
current lacunae arising from the character of the post-colonial state through popular
participation and organisational coherence to ensure democratic control and widen
national security perspectives.
Several African constitutions in the post cold war era are replete with innovative
provisions aimed at dealing with the supremacy of the elected civilian authorities and
triggers of conflict like the use of emergency powers of state. One of the earliest
constitutions 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/or
overthrow as the supreme law of the land in Article 9(3). While it is arguable that
such 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. Although
President Rawlings’ credentials as a believer in the democratic reform agenda was
suspect when the constitution was adopted by referendum in 1992, its passage
reflected the mood of the country.
“Any person who (a) by himself or in concert with others by any violent or other
unlawful 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 any
person referred to in paragraph (a) of this clause, commits the offence of high treason
and shall upon conviction be sentenced to suffer death”. In sub-section 4(a), the same
constitution states that “All citizens of Ghana have the responsibility and duty at all
times” to (a) defend this constitution and in particular, to resist any person or group of
persons seeking to commit any of the acts defined in clause 3 of this article.
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9. The constitution goes further to declare that any person who participates in resisting
such attempts or acts of suspending or abrogating it commits “no offence”.
Subsequent sections award “adequate compensation which shall be charged to the
Consolidated Fund in respect of any suffering incurred as a result of punishment” in
resisting the abrogation of the Constitution.
The Constitution of Ghana, 1992
The fact that the same constitution contained additional organs of horizontal
accountability that were to later play a significant role in deepening the democratic
process in the country – independent oversight bodies like CHRAJ, the National
Commission for Civic Education and the National Media Commission – is indicative
of the people’s determination not to leave their future to the whims and caprices of an
elected elite in the quest to promote political transformation, and not just power
transfer.
In many respects, the enriched contents of these new constitutions are also by
products of the changed political context within which they emerged. Unlike the first
generation constitutions of the post-independence era handed down from the
metropolitan headquarters in Lancaster House or Champs d’Elysees or the
authoritarian diktats that replaced those, which offered deceptive universality with
little regard for cultural and political contexts of the country in question, the latter day
constitutions respond to the conflict signals in the post colonial state – issues such as
presidential powers, emergency powers, relationships between levels of governments
without assuming unanimity of views and with a great deal more regard for minority
opinion. A good example of this is the South African constitution, which contains, for
example, four pages of clauses on the implementation of the Emergency powers as
well as prohibiting soldiers from obeying “manifestly illegal orders”. Given South
Africa’s historical antecedents, especially under the apartheid regime, and the context
of extensive negotiations that produced the constitution, it was little surprising that
Article 37 of the SA constitution went further than any other constitution on the
continent to cover potential use of emergency powers and the limitations of
emergency powers vis-à-vis rights and freedoms that are non-derogable.
While some of the provisions contained in many new constitutions in Africa betray a
determination to constitutionalise every aspect of governance in society, with all the
attendant difficulties, this is also an indication of the lack of faith in the civic realm to
leave everything to the whims of the judicial and executive authorities of state. There
is a stronger belief that outcome of political decisions are most likely to endure if
captured in an explicit set of principles that are authochtounous and autonomous, and
beyond the reach of partisan politics. To a large extent therefore, all of these
provisions link constitutional intent to process and go a long way in confirming the
people’s concern for the rule of law with a broad agreement on certain principles and
mechanisms that can enhance democratic governance in general and security sector
governance in particular. Again, whilst context may differ, the following principles
and mechanisms have informed the more successful constitution-making exercises
with regards to provisions in the security sector. Countries who have refrained from
adopting this broadly inclusive framework tailored to their individual circumstances
have also ended up with conflict-ridden polities with the disaffected parties resorting
to extra-legal means of seeking redress. Nigeria, Sierra Leone, Democratic Republic
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10. of Congo are few examples of this phenomenon. What then are the principles and
mechanisms relevant to linking constitutional intent to governance process broadly
and 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 Sector
We have provided above the nature of the on-going discourse about constitutionalism
and governance in the security sector in Africa. This intention has not been to simply
reify the notion that an adoption of constitutional principles and order necessarily
produce desired outcomes in the quest for state reconstruction. Indeed, we are not
unmindful of the popular view that ‘no constitution can cure a sick society, nor
protect it against usurpers’. Nor are we oblivious of the fact that it is not the intrinsic
quality of a constitution that will guarantee its durability or sustainability in the long
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11. run (Okoth-Ogendo, 2000). The effort above is to demonstrate the various attempts at
state building and reconstruction in the continent grounded in constitutionalism.
Even so, while African states have, by and large, embraced the importance of
constitution-based governments, the link between the constitutional intent and the
governments’ respect for the rule of law remains work in progress. Nowhere is this
best typified than in the functioning of the security sector under rules based
governance. Governments by nature prefer security sectors that are opaque to the
general public given the secrecy that often surround war and issues of security even in
peace times. The narrow definition that restricts security to its military dimension
precludes the notion that security knowledge should be widespread and its activities
made transparent. Until the last decade, the security services have often been seen (or
seen themselves!) as an alternative and independent power centre hardly subject to
scrutiny by government and parliament, even where such oversight agencies exist.1
Whilst secrecy in the security sector is not the exclusive problem of African states, the
security sector has successfully managed to keep prying eyes at bay under the pretext
of protecting ‘national security’, thus preventing proper parliamentary and extra
parliamentary monitoring of security agencies.
Over the last decade, there is a growing awareness that constitutional democracy
requires governments that are not only accountable to their citizens but also subject to
restraint by elected civil oversight actors and independent oversight agencies.
Interests groups and citizens now hold strong views that State constitutions must
entrench certain fundamental principles that allow for the creation, existence and
practice of oversight agencies that can safeguard the interests of the people, mediate
the 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 the
Ministries/Departments of Defence, Police Affairs/Interior, Parliamentary
Committees 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 of
Justice and civil society institutions like the media, human rights organisations etc.
In addition to these parliamentary oversight actors, many Africa’s post-cold war
constitutions have also given a pride of place to extra-parliamentary oversight
institutions such as Constitutional Courts(South Africa, Benin, Mali), Anti-Corruption
and Public Accountability Bodies, Ombudsperson(Namibia), Public Protector and
Inspector General of Government’s activities(Uganda, South Africa), Inspectorate of
Intelligence Services, Human Rights, Social Justice, Economic and Cultural Rights
Commissions with mandates to examine the security sector actors. Whilst upholding
the relevance of parliamentary oversight committees, the importance of these
complementary and sometimes parallel institutions of oversight cannot be over-
emphasised. These institutions are seen, especially in civil society, as having the
potential of acting as a bulwark on which the very foundations of good democratic
practices are set, when allowed to function independently of influence from State
organs and personalities for the benefit and the cause of participation in governance
by the citizenry. From South Africa to Ghana, Uganda to Benin republic, the
1
See National Democratic Institute, Report of the Civil-Military Relations Assessment Mission:
West and Central Africa (Washington, DC:NDI, 1997)
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12. principle of independent commissions as mediatory organs or ‘honest brokers cum
watchdogs’ occupying the realm between the citizens and governments has been
central to recent constitution-making campaigns and it has enriched the debate about
the quality and character of governance in these States.
In addition to parliamentary, state based oversight institutions and extra-parliamentary
oversight agencies, a number of African countries have also incorporated international
mechanisms that promote human security, human rights and social justice into their
domestic laws. For example, the African Charter of Human and Peoples Rights, the
statutes of the International Criminal Court and the African Court of Justice have been
ratified and incorporated into the laws of several countries in Africa. Other countries
have incorporated the International Covenants on civil and political rights and
conventions on social, economic and cultural rights into local laws. Others have
signed up to the Convention on the Elimination of all forms of Discrimination against
Women (CEDAW) and the Beijing Platform for Action into local laws, all with
implications for gender in the security sector.
Oversight Actors & Agencies in the Security Sector
Although the relevance of such institutions is no longer in doubt, difficulties that stem
from institutional weaknesses in state capacity pose a more serious challenge for
effective governance in the security sector. In many African countries, the most
prominent examples of this weakness is the often-sketchy information in the
constitution with regards to the role of the legislature in security sector. For example,
many of the constitutions, including recently promulgated ones are silent on critical
issues such as the role of the National Assembly/Legislature in national security
policy formulation, especially in countries emerging from prolonged authoritarian
rule; powers to declare war, powers over budget, powers of approval of senior
security sector appointments, powers on the declaration of emergency and how these
affect non-derogable rights; professional autonomy of military and access to
information on security sector issues and the provisions on military involvement in
politics. As indicated above, a few have come up with innovative mechanisms
merging authochtonous arrangements with universal norms. For example, Uganda
has a quota for the military in parliament – an act borne out of its unique political
history 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 a
discussion about the development of effective oversight mechanisms, as well as of
viable security institutions able to attain security for the state as well as for ordinary
citizens, in the quest for democratic development and ownership of the state. While
effective oversight is ensured through a number of institutions, the most significant
oversight actors are the legislature, independent oversight institutions with legislative
backing and civilian bureaucratic institutions such as finance and justice ministries
and it is important to examine the nature of these oversight actors.
To be effective, oversight institutions should operate without fear or favour in their
promotion and protection of transparency, accountability and integrity and to ensure a
free and fair dispensation of justice and administration. They must not be subject to
the whims or pressure of those who appointed them, even if President and/or National
Assembly wield enormous power over security of tenure of their offices. Indeed,
12

13. what makes them independent is their autonomy and the minute that is in doubt, their
legitimacy will also be severely affected. For example, there should be mechanisms,
which will allow oversight agencies have access to adequate resources for operations
so that they do not become beholden to governmental institutions under their purview
in order to be able to fulfil their mandate. The experience to date is that both
parliamentary and extra-parliamentary oversight mechanisms lack resources to
conduct their task efficiently and effectively. Even in Africa’s more successful
parliaments like the South Africa’s Defence Committee or the Joint Standing
Committee on Security, parliamentarians still complain about their lack of resources.
A possible way out of the resource drought is to ensure that the Constitution
guarantees adequate funding through the Consolidated Fund of the National
Assembly. In many African countries where provisions for independent agencies
exist, this has not been the case since the Constitution does not give a constitutional
guarantee on the funding of these institutions. They are at the mercy of the Executive
branch of government and are almost always treated like State controlled
Commissions.
On the fundamental concept of Independent Commissions which is that these
Commissions will act as society's watchdogs in seeking information, justification for
government actions, oversight and enforcement – there is often an asymmetry
between the agencies and the public officials – especially when it comes to holding
public officials accountable for their actions. Although their right to get an answer is
not often questioned by those in authority, that right does not always extend to the
right to make the answer public. Neither are oversight agencies empowered to act
independently of the Executive arm of the State, of the National Assembly or other
sectoral interests that might exist and to seek the enforcement of the law since they
often lack prosecutorial authority.
For oversight agencies to be effective, their functions and powers must be clearly
delineated and recognised by the Constitution. Leaving aside the problems imposed
on these institutions by their flawed establishment, they also suffer a credibility deficit
due to the lack of transparency in the manner that they interact with the general
public. Given the focus on accountability and justification for governmental actions,
most watchers of oversight institutions agree that constant engagement with the public
is key to their success. Publicity must not only apply to power holders but also to
agents of accountability. In a situation where they lack the capacity or the desire to
publicise their work with the public, oversight agencies expose themselves to the
same accusations of self-importance and arrogance that often get government into
trouble with the citizens. This is a common problem with most parliamentary and
extra parliamentary oversight agencies dealing with the security sector. In fact in
many countries, these institutions only exist in name.
Another problem suffered by parliamentary oversight committees is the lack of
informed knowledge and expertise on the part of elected members of security sector
committees. This has posed a key challenge to effective oversight of the security
sector in most countries in Africa. There is a dearth of technical expertise on security
matters in national legislatures as they lack resources to engage professionals in house
knowledge base and outside consultants; lack of communication with military
professionals; inefficient use of the Committee system in parliament; inexperience
with legislative drafting; lack of interest or involvement in the shaping of national
13

14. security policies; lack of clarity on role and functioning of legislative oversight
bodies. 2
Although the problems vary from one country to the next – especially with regards to
the establishment and proper functioning of parliamentary committees dealing with
the security sector – Public Accounts, Defence, Police Affairs, Security &
Intelligence, Human Rights etc, it is also fair to say that there are positive
developments in several countries in this regard, although it is driven largely by ad-
hocery rather than a systematic arrangement underscored by general principles of
oversight in the governance of the security sector. For example, the Ghanaian
constitution has a very extensive section of the constitution devoted to sanctions and
incentives relating to illegal overthrow of elected authorities; the South African
constitution has perhaps the most elaborate provisions on emergency powers, not just
in Africa but also in the entire globe. In addition, it developed a National Security
White Paper with input from all sections of the society – parliament, the military,
security agencies, and civil society. In Benin and Mali republic, the legislature
exercises the power to declare a state of emergency, vote on military budget and
declare war upon recommendation of the Council of Ministers. Yet, in new
democracies like Nigeria, the legislature has displayed a level of disinterest in security
matters even as the country remains hobbled by conflict.
Independent Oversight Institutions and the Challenge of Independence
While independent oversight Institutions are gaining greater prominence in some
countries and deepening the democratic quality of their governance – others reflect a
more precarious situation. Indeed, oversight agencies face a serious challenge of
relevance and legitimacy in many countries where they are in operation – primarily
because they are sometimes extra-constitutional. The challenge of legitimacy is not
just 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 the
principle of accountability on its head. The accountability of elected authorities and
personalities to a series of all powerful oversight institutions populated by appointed
officials tasked with ‘supervising’, ‘monitoring’ and/or ‘regulating’ their powers is
inherently seen to be ‘undemocratic’. This is more so in situations where the extra-
parliamentary oversight institutions are not accountable to parliament and do not
derive their legitimacy from the parliamentary branch of government. The executive
branch sometimes utilises the establishment of special commissions that are not
accountable to parliament as a means of dodging parliamentary scrutiny especially in
the security sector. Even where such oversight institutions account to parliament,
some elected representatives have argued that it is a surreptitious way of power
brokerage by those who could hardly face the heat of electoral politics. In many of
the countries in question, the view that the checks and balances provided by the
creative tension among the three branches of government – the executive, legislature
and the judiciary - is adequate is prevalent even though many executive branches of
governments in Africa do not always recognise the powers of elected representatives
2
See NDI (1999), Report of the Role of the Legislature in Defence Matters, (Washington,
D.C: NDI)
14

15. nor the judiciary to regulate their power or question their actions as already indicated
above.
Hence – the question of “who guards the guardians” is very central to the relationship
between elected officials and members of oversight agencies. In some countries,
appointed members of oversight agencies have political party affiliation and this casts
doubt on their independence and objectivity. It is not uncommon for oversight
institutions to be used in the pursuit of personal agenda and therefore overstep their
bounds, promote political viewpoints or seek to embarrass elected authorities through
biased and partial judgements.
While there may be objective reasons for party political affiliation in say electoral
commissions, reasons largely informed by the need to reflect the various tendencies in
places where trust has completely broken down – often the practice in post conflict
political transition arising out of peace agreements, this shouldn’t result in the
paralysis of such oversight institutions if the terms and conditions for such
arrangements 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 are
not perceived to favour one party to the detriment of the others.
Partisan political or ethnic affiliations become an issue when accountability agencies
confuse their roles and responsibilities with that of the executive branch or legislative
committees. This encroachment into jurisdiction that is often undefined but which
appears outside of the realm of these institutions has been a key source of problems
especially in maturing democracies with a great deal of potential for reversals. Yet,
holding power accountable should not imply determining the way it is exercised,
neither 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 of
accountability – governmental, legislative, bureaucratic, judicial, electoral and
international and deciding early a clear code of conduct or behaviour for those
involved in independent oversight institutions that are constitutionally entrenched and
ensure 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 from
the public. In addition, members of oversight institutions, for example, should at the
minimum 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. 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 Security
Sector
In the age of globalisation and regionalism, the degree to which what happens outside
of national and juridical boundaries affect domestic governance and vice-versa cannot
be underestimated. Locating national oversight institutions within an international
context seems absolutely important. In the context of a growing regional integration
process and peace-building efforts, it is important that regional oversight frameworks
should be developed and adhered to in peace support operations, in the promotion of
international humanitarian law, in the enforcement of laws of war principles and in
the promotion of general principles of oversight and constitutional development. For
example, several regional institutions are emerging in the post-cold war context such
as Parliaments, Regional Courts of Justice, and regional systems of free movement
with implication for security and development.
Laudable as these measures and institutions are, it is important to harmonise the place
of these regional institutions with national institutions, if future conflicts are to be
avoided between these institutions. In certain areas, this degree of synergy seems to
exist. For example, the African Commission on Human & Peoples’ Rights appear to
draw 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 complied
with the annual reporting requirement on the human rights situation in their
countries.3 Not only is it important therefore that states show fidelity to protocols and
agreements that they have willingly signed, but also they should ensure that these are
ratified by the various parliaments with the opportunity given to the wider population
for examining the incentives and dangers of the international agreement.
In addition, regional oversight bodies are central in the governance of trans-national
issues that go beyond the jurisdiction of States, but we can only ensure that citizens
are protected if States are willing to develop and utilise these institutions fully. For
example, several transnational corporations operate in African countries without
upholding the basic minimum standards that apply in most countries of their
operation. 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 global
compacts on business ethics, various codes of conducts on resource appropriation and
terms of trade issues like regulating blood diamonds; landmines proliferation, small
arms proliferation; human rights in the corporate world; accountability to local
3
See Chidi Anselm Odinkalu, “Social and Economic Rights: Assessing the work of the African
Commission on Human and Peoples’ Rights”, Human Rights Quarterly, 2001
16

17. communities etc all with significant implications for human security and governance
in the security sector. While this represents a positive development, it is important
that these good international agreements and codes of conduct are adapted for local
usage and incorporated into local laws with independent institutions empowered to
monitor the conduct of these trans-national bodies and their implementation of
international principles.4
It is only by locating local laws and action in the areas of oversight agencies within a
regional and global context that we can begin to lay the basis for meaningful action.
Appraisal of Oversight and Enforcement Institutions
It is clearly a positive development that Africa’s democratic transitions have given
rise to attempts to bring oversight agencies into the mainstream of constitutional
governance and overall public sector management reforms, but challenges remain
especially for those oversight bodies concerned with the opaque world of security. It
is to the advantage of States where trust in government capacity to act in the best
interest of the citizens has been eroded over the years to use these institutions to
gradually rebuild confidence in the transition years and it is hoped that key
stakeholders will show a significant interest in the strengthening of such institutions..
For these institutions to make an impact beyond their appearance in constitutional
documents though, some benchmarks are useful in appraising their effectiveness as
oversight agencies responsible for the accountability of elected authorities. These
include:
• 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 professionalism
Meeting these benchmarks poses a significant challenge in the security sector where
structures and practices have traditionally been weak and least defined although
pressures from below as well as from external institutions now ensure that security
actors deal with the demands of public accountability. Even so, any evaluation of
progress in the work of oversight agencies is complicated by the fact that, while
democratisation in Africa (as in many newly democratising regions) are in a state of
flux. Nevertheless, it is clear that most African countries are far from achieving the
4
See Meghnad Desai & Yahia Said, ‘The New Anti-Capitalist Movement: Money and Global
Civil Society’, in The Global Civil Society Yearbook 2001 (Oxford: Oxford University Press for
Centre for Global Governance & Centre for Civil Society, LSE, 2001)
17

18. elements of ‘sound governance’ in the area of oversight institutions in the security
sector. Those that have done so cherish the way it has improved the quality of
governance and focussed the mind of public sector officials at all times on the key
principles of accountability and answerability. For those who are yet to reach the
threshold of achieving measurable success in their quest for accountability and
transparency, it is our expectation that the principles and outline of issues contained in
this section will help towards the improvement of their capacity.
IV. Security sector reform within a strategic thinking framework
V. 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. 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. 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. Table 1: SA’s State of emergency provisions state of emergency, the following conditions must be
37. (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 detainee's
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 that
legislation 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 the
declaration 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 Republic's
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 a
state of emergency, and no legislation enacted or other
action taken in consequence of a declaration, may permit
or authorise
a. indemnifying the state, or any person, in
respect of any unlawful act;
b. any derogation from this section; or
any derogation from a section mentioned in column 1 of
the Table of Non-Derogable Rights, to the extent indicated
opposite that section in column 3 of the Table (6)
Whenever anyone is detained without trial in consequence
of a derogation of rights resulting from a declaration of a
21

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