THE Constitutional Court has heard that military courts should be allowed to operate as other courts do in a challenge brought by a military court judge.
Military courts currently do not enjoy vital institutional safeguards that apply to all other courts of criminal jurisdiction, according to Lieutenant-Colonel Kevin O’Brien, an instructor at the School of Military Justice.
O’Brien’s application concerns three sets of legislative provisions that fail to ensure sufficient structural independence of military courts.
He told the apex court that military courts were not independent because the removal of military judges was executive-driven by boards of inquiry.
The Defence Act empowers members of the executive to appoint boards of inquiry staffed with non-judicial officers to investigate military judges, their judgments, and the conduct of their cases, according to O’Brien.
He also complained about renewable terms at the executive's discretion.
The Military Discipline Supplementary Measures Act (MDSMA) permits the minister and the Adjutant General, Major-General Zanoxolo Mnisi, to make renewable assignments of military judges for short periods at their sole discretion without any objective criteria.
In addition, O’Brien said, military judges could be removed without independent oversight.
The MDSMA empowers members of the executive – the minister and the Adjutant General – to remove military judges for alleged misconduct without the involvement or oversight of any independent body.
O’Brien said military courts were subject to the constitutional guarantees of independence that were afforded to all other courts.
”Members of the SA National Defence Force (SANDF) who are charged with criminal offences before these courts are also accused persons, who enjoy all the constitutional guarantees of a fair trial that apply to civilians,” he told the ConCourt.
O’Brien served as a military court judge for three terms between 2013 and 2017.
”Between 1 April 2014 to May 2014, while waiting for a further assignment as a military judge, I started conducting research on judicial independence and the problem of the delays in the assignment of military judges.
“I soon became troubled by the defence force's practice of making brief, renewable assignments of military judges, generally for one to two years at the time. I was concerned about the implications on the institutional independence of the military courts and the administration of 'the courts,” he said.
O’Brien said he was threatened when he placed his concerns before his superiors, which included delays in criminal trials of between 15 months and three and a half years.
Mnisi denied to the apex court that the Defence Act was unconstitutional and invalid as O’Brien alleged, as it permitted members of the convened boards of inquiry to probe military judges and the contents and merits of their judgments and rulings.
“No section of the Defence Act empowers a member of the executive to investigate any judge’s rulings and judgments,” he said.
O’Brien got into trouble with the SANDF after recusing himself in two cases, a decision found to have been correct by the North Gauteng High Court and the Supreme Court of Appeal.
”In the aftermath of these events, I received no new cases for the duration of my assignment and was effectively suspended. I was the only military judge not to have my assignment renewed in May 2017,” he said.
The International Commission of Jurists (ICJ) also made submissions to the Concourt in its bid to become an amicus curiae (friend of the court), arguing that South Africa bore obligations under international law to ensure that courts and tribunals (including military courts) were competent, independent, impartial and allowed a fair and public hearing.
”There is a particular need for military courts to be independent and impartial given the jurisdiction that such courts have in relation to sexual offences committed by the members of the SANDF,” the ICJ said in its submissions.
It further said that judicial officers in military courts must be insulated and protected against interference by superior officers or officials as this is necessary to ensure the effective prosecution of sexual offences.
Judgment was reserved last week.
loyiso.sidimba@inl.co.za