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Military discipline: where are we going wrong?

ABSTRACT

This article addresses the issue of military discipline within the South African National Defence Force, with specific reference to the military justice and corrective system. The first section focuses on the military justice system and the problems experienced in striking a balance between military discipline and the constitutional imperative of "equality before the law". In the second section, reference is made to a survey conducted by the South African Navy on the extent of disciplinary offences and the type of sentences imposed on offenders since 1994. With this as background, the various strategies deemed effective in reducing deviant behaviour, namely retribution, deterrence, rehabilitation and incarceration are analysed. Where appropriate, the various forms of social control, punishment, and corrective programs are scrutinised with reference to international military examples. In the final section, the shortcomings in the military corrective system are discussed and some suggestions are made as to how the present system could be improved.

1. INTRODUCTION

Since the formation of the new South African National Defence Force (SANDF) in 1994, there has been widespread concern with the decline in discipline within the ranks. Reports in the media on killings, racial strife, fraud, insubordination, lack of loyalty and failure to carry out orders not only harm the professional image and status of the military, an institution entrusted to protect the nation, but also the functioning, cohesion and morale within the forces. (1) More than any other social institution the military demands from those within its service to conform to a set of rules and regulations, as it is this discipline that leads soldiers to obey an order no matter how unpleasant or dangerous the task. (2) This is the cornerstone of any professional force and why the military has its own set of laws regulating the conduct of its members.

One of the main functions of the military justice system, otherwise referred to as the criminal law of the soldier, is to set out the course of action to follow concerning disciplinary offences and violations of law by military personnel. As with any law, the effectiveness depends on how just, appropriate and proportionate punishments awarded to offenders are In this regard, the recent amendments to the military justice system in 1999 have sought to ensure that the constitutional rights of soldiers are not infringed and that the law as applicable to the soldier is fair and just. (3) However, striking this balance between the dual imperatives of discipline and justice has not been without its challenges. The rising incidence of ill-discipline appears to indicate that neither the military justice system, nor the sentences imposed have been able to curb the increase in disciplinary offences.

This article takes a look at the present military correctional system with the aim of determining whether there are any shortcomings in the current disciplinary system from a legal and corrective point of view. The first section focuses on the military justice system and the problems experienced in striking this balance between discipline and justice. The second section makes brief mention of a survey conducted by the South African Navy (SAN) to determine the extent of current violations of the MDC and the type of sentences imposed on offenders. With this as background, the various strategies deemed effective in reducing deviant behaviour, namely retribution, deterrence, rehabilitation and incarceration are discussed. Where appropriate, the different forms of social control, punishment and corrective programs are scrutinised with reference to international examples, before drawing some conclusions on how the SANDF's present military corrective system could be improved.

2. THE MILITARY JUSTICE SYSTEM

One of the main purposes of military law is to maintain discipline among military personnel in times of peace and war. Due to the high premium placed on discipline, loyalty and obedience, armed forces have developed their own unique set of rules and regulations to maintain discipline Within the SANDF, the Military Discipline Code encompasses the regulations and punitive sanctions that can be imposed on those found guilty of transgressions. Even though the military places unique demands on the individual, the system of military justice cannot be out of step with the actual feelings and demands of society if the retribution is to be morally acceptable.

2.1 The impact of the Constitution

With the enactment of the new Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) and the Bill of Rights, military justice has become an issue of paramount importance. The Constitution, for example, specifically highlights the rights of individuals to have equality before the law, access to courts, and the same rights in terms of arrests and detention (see sections 34 and 35 of the Constitution). Consequently, during 1998 a moratorium was placed on all military trials and new legislation was enacted to bring the Defence Act, 1957 (Act No. 44 of 1957), in line with the Constitution. The changes resulted in the promulgation of the Military Discipline Supplementary Measures Act, 1999 (Act No. 16 of 1999) (MDSMA), which came into effect on 28 May 1999 and the Rules of Procedure (Rules), promulgated on 11 June 1999. The primary aim of the MDSMA, is "[t]o provide for a new system of military courts with a view to improve the enforcement of military discipline and to provide for incidental matters". (4) Of importance, is that the MDSMA and the Rules did not repeal the Defence Act in toto, but only those provisions inconsistent with the Constitution and more specifically, those relating to military trials.

The MDSMA brought about a number of fundamental changes in the structure and composition of the military courts, the command and control of the different role players in the military justice system and most importantly, the rules of procedure applicable to military trials. The most significant difference between the previous and present system with regard to the enforcement of military discipline is that the president of a court martial, has been replaced by a judge with a law degree and experience in either criminal or military justice. Judges are also more independent and less subject to command influence Another important distinction is that the accused now has the right to appeal against the decision of the military court. The review of the case is done by an independent court, presided over by a civilian judge and not reviewed by the authority that convened the trial.

These changes were enacted to ensure that the accused receives a fair trial, free from command influence, and guarantees a greater degree of independence with respect to the various role players. A possible disadvantage the revised judicial system has had on military discipline is that the jurisdiction of the disciplinary hearing (previously the summary trial), has been extensively limited. Where previously it was possible to try rank groups private to lieutenant colonel, the authority now exists only with respect to rank groups private to staff-sergeant. This has added an additional burden to an already overloaded court system, as relatively minor offences by these rank groups, such as negligent driving, can no longer be dealt with at unit level due to the accused's rank. Therefore, it is even possible to go as far as to say that this violates the constitutionally enshrined principle of "equality before the law".

2.2 Impact on military discipline

Whilst the military justice system is now in line with the principles enshrined in the Constitution, the sentences imposed do not appear to serve as sufficient deterrent to curb military disciplinary offences (MDOs). The punishment assigned to the sentence does not create sufficient discomfort to the offender either to deter misconduct, or prevent further violations. Terblanche maintains that it is not the extent of the punishment that is the real deterrent, but the certainty that punishment will follow the commission of a crime. (5)

Within the SANDF, many offenders are aware that disciplinary offences are a low priority in terms of present caseload. Directorate Military Prosecutions guidelines, for example, state that with the rise in criminal activity, that cases of fraud, theft, loss of controlled items, property and firearms, assault and reckless or negligent driving, take precedence over MDC offences in terms of case priority. Accordingly, MDOs are not seen as a high priority in terms of cases serving before the Court of a Military Judge, and this has resulted in excessive backlogs in outstanding disciplinary cases.

This problem is compounded by the fact that the new MDSMA has to some extent taken away the discretion of commanding officers to deal with MDOs at unit level. Section 22 of the MDSMA prescribes that where there is prima facie evidence that an offence has been committed, that offence shall be prosecuted. The use of the word "shall" indicates that there is no discretion left to the commanding officer. In other words s/he cannot apply any other sanction but to refer the case to the courts. Once the accused is charged, the charges go ahead and even if the commanding officer wishes to withdraw the charge, or stop prosecution against an accused, only the Senior Prosecution Counsel has the authority to do so. As this a laborious process, most units do not pursue this avenue and consequently the courts become overburdened with frivolous charges that should have been settled at unit level.

The lack of discipline and high rate of recidivism cannot be blamed on the military justice system alone. There also appears to be a lack of faith in the commanding officer's ability to preside over disciplinary hearings. Most offenders know that if they plead not guilty with legal representation, the Court of a Military Judge will assign a much lighter sentence, given that it is a disciplinary offence. (6) This deduction is based on the trend that more offenders are opting for trial by a Court of a Military Judge, than disciplinary hearings. Informal discussions with Military Review Counsel confirm that fewer disciplinary hearings are being conducted at unit level, not due to a decrease in MDOs, but because most opt for a trial by the court of a Military Judge, knowing that the sentence may be lighter, that there will be long time delays and other mitigating factors reducing sentence severity.

The continuous focus on the constitutionality of certain prescriptions of the MDSMA by the private sector and legal fraternity and its related legal processes by the Supreme Court has also created the erroneous belief that any punitive measures instituted by the Department of Defence (DOD) can be overruled. (7) Many commanding officers are not able to distinguish between constitutional rights and their rights in terms of command and control. The uncertainty and ambiguities this creates has meant that senior officers are often unsure or reluctant to take disciplinary action against subordinates. There is the concern that should they institute corrective training, for example, that it may be construed to be a "violation of human rights". (8) This is exacerbated by the fact that commanders/seniors are reluctant to take disciplinary action for fear of reprisal or being accused of being racist or biased.

The SANDF is still polarised in terms of race and former force and this makes the enforcement of discipline all the more tenuous. Allegations of racial inequality and arrogance and counter-allegations of defiance and disobedience all contribute to the reasons why those in command are reluctant to take action against members who are ill-disciplined. This is aggravated by low levels of morale created by the present state of uncertainty and the use of alternative structures to resolve issues. A recent DOD Military Agency report confirms that there has been a marked increase in the number of juniors who refuse to obey lawful orders and who insult or threaten seniors. (9)

3. EXTENT OF CURRENT VIOLATIONS

The extent of current disciplinary offences and the inability of the current system to deal with violations in terms of both retributive justice and deterrence, are clearly evident when the statistics available on MDC charges of SAN personnel are analysed. In the following section, the findings of a survey commissioned by the Chief of the Navy to record the number of offences of SAN personnel between the periods 1994 to August 2002 are discussed. (10)

According to the SAN survey, a total of 903 SAN members were found guilty of 2 033 MDC or criminal offences for the period 1994-2002. The different offences can be broadly classified into the following three categories: Military Disciplinary Offences tried under the Military Discipline Code (Dis MDC), with sentences not exceeding one year imprisonment; criminal offences tried under the MDC, (Crim MDC) with sentences exceeding imprisonment of one year; and criminal offences under civilian law, (Crim Civ) tried by either a military or civilian court.

By far the most offences fell in the category of Dis MDC (82,8 per cent), followed by Crim Civilian (20 per cent) and Crim MDC (11 per cent). Concerning actual type of offence the vast majority (42,7 per cent) of MDC offences were AWOL (absence without leave). The other main offences were disobeying of lawful commands (11,7 per cent), drunkenness (7,1 per cent), offences relating to negligent driving of military vehicles (5 per cent), followed by using or taking articles issued to another person (4,5 per cent) and conduct prejudicing military discipline (4,3 per cent). A significant number of offences (10,7 per cent), were tried under civilian law (see Figure 1). In 45,1 per cent of the cases, the same member was found guilty of more than one offence.

In more than half of the cases (52,9 per cent), members received fines, which according to current stipulations may not exceed R600 in the case of a disciplinary hearing. In 13,1 per cent of cases, offenders received reprimands and 10,6 per cent offenders were given extra duties (see Figure 2). Of greater concern is the number of offenders who were sentenced to detention (11,7 per cent). When such a sentence is issued, members are stripped of their rank which has further implications on their pay, giving rise to other social and financial problems which the organisation has to deal with.

Another important finding is that the number of offences has increased in recent years. In the four-year period 1994-1998, 960 (47,7 per cent) recorded cases as per date of offence were recorded, compared to 1 073 (52,8 per cent) for the period 1999-2002. This substantiates the view that disciplinary offences appear to be on the increase since the promulgation of the new MDSMA. While these figures pertain only to the SAN, it can be presumed that they are at least comparable, if not higher in the other arms of service judging from media reports.

4. DEVIANCE AND CONTROL

The question is what to do with those who do not conform and how it can be ensured that they will not commit the same violation again? In the following section, some of the issues relating to deviance and control and the strategies deemed effective in reducing non-compliant behaviour are discussed. Where appropriate, the various forms of social control, punishment and corrective programs are examined with reference to the challenges facing the SANDF.

4.1 Retribution

The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community. In other words, that the punishment inflicted on the offender must be seen to be morally correct, and that society has the right to "inflict suffering on the offender comparable to that caused by the offence". (11) Punishment assigned by law is seen as a means to restore moral order and ensure that deviant behaviour does not upset the balance within society. The aim of retribution is to punish all individuals who violate the same norm in the same way. The focus is not prevention or rehabilitation, but on fair and just punishment of individuals that engage in disruptive or threatening behaviour.

In the SANDF, the current military criminal justice system deals with criminal activities and disciplinary offences by means of a system of retributive justice. Once convicted the offender is fined, charged or sentenced to a period of confinement that serves as payment for the offence in accordance with the severity of the charges. However, it appears as if the punishment inflicted by legal sanction does little to restrain or reform offenders. As the SAN example demonstrates, the sanctions imposed by the military justice system, specifically in terms of fines appear to have little deterrence effect.

4.2 Deterrence

Deterrence is based on the principle that as rational beings, people will forgo deviant or criminal behaviour if they perceive that the pain outweighs the gain. (12) Thus, people evaluate the risk in terms of their own personal situation versus the risk of apprehension, the seriousness of the expected punishment and the value of it in personal terms. To achieve maximum deterrence, punishment should be based on the principles of certainty, severity and celerity. The more prompt the punishment and the sooner it follows the crime, the more just and useful deterrence is as a mechanism to curb deviant behaviour. (13)

Such punishment may deter non-compliant behaviour in two ways, either through specific deterrence or general deterrence. Specific deterrence focuses on punishing known offenders in order to prevent them from violating the specific norms they have broken. The assumption is that through the rational use of punishment as a negative sanction, problematic behaviour can be extinguished. (14) General deterrence refers to the impact punishment has on other potential offenders, thus reducing the chance that they will commit offences. The specific punishment of an offender reaffirms to the group, that they are bound by common norms and values.

However, it is not only the fear of social disapproval or legal punishment that influences the effectiveness of deterrence, but whether legal norms associated with the punishment have been internalised. According to Reid, (15) although all three forms of social control serve as inhibitors of illegal behaviour, moral commitment to obey is possibly the most important. Compliance occurs because people believe that obeying the law constitutes morally appropriate behaviour and accept the legitimacy of the sanctions imposed by the law. (16) Obviously deterrence will not succeed where the person is ignorant of the actual threats they face, or where the punishment enhancement laws are obscure. In most cases, people act without considering all the consequences of their actions. (17)

There are other normative aspects, besides penal sanction that impact on the effectiveness of deterrence as a means to ensure compliance. These relate to the messages conveyed by the criminal sanction. Where the offender experiences personal shame, or is stigmatised by others for the offence committed and is seen to lose status in the eyes of others, this may reduce recidivism. Conversely, if the audience, in this case the military fraternity, does not feel that the conduct of the person punished is particularly apprehensible, then these normative control mechanisms are unlikely to serve as a deterrent. This is even more so if the underlying legal prohibitions are not accepted, the punisher lacks legitimacy and where there is a sense of alienation from others who judge him/her adversely. (18)

One of the deterrence strategies under the MDSMA is to impose a fine not exceeding R600 in the case of a disciplinary hearing. Even where the maximum fine is imposed, this does not seem to reduce recidivism. In fact, there are even reports by law officers that offenders "budget" for their offences. From this it may be deduced that more effective sentences and not necessarily harsher sentences need to be imposed. (19) A possible option to consider is the enactment of a system of non-judicial punishment, as found in the United States (US) armed forces in Article 15 of the Uniform Code of Military Justice (UCMJ). (20) Non-judicial punishment (NJP), also known as "mast", is an administrative process used by commanders to mete out minor disciplinary offences, rather than go though the process of a lengthy court-martial. Those accused are free to refuse NJP and opt for a court-martial, but unlike the latter, which can result in a bad-conduct discharge, detention, forfeiture of pay or lowering of pay, NJP does not result in a criminal record. While NJP may have a significant effect on the person's military career, the punishment is limited to short confinement, reductions in rank and relatively small fines. (21)

The message to offenders is that it is much easier to recover from a NJP than from a court-martial conviction. The key principles underlying NJP are swiftness, certain consequences and fairness. NJP allows commanding officers some discretion in dealing with minor disciplinary offences, without overburdening the judicial system, but at the some time giving the individual a fair option to defend him/herself. In determining the type of punishment, the nature of the offence, the record of the member, the need for good order and discipline and the effect on the individual's career are taken into consideration. (22)

4.3 Rehabilitation

Rehabilitation resembles deterrence in that both forms of "punishment" strive to motivate the offender towards conformity. The difference between the two approaches is that where deterrence inflicts suffering on the offender, rehabilitation attempts to constructively change the behaviour of the offender to become more socially responsible. (23) The underlying assumption is that as behaviour is learnt, so it should be possible to change behaviour and rehabilitate offenders to reduce subsequent offences. The key is to understand the individual differences that explain deviant behaviour and to actively intervene to bring about the desired behavioural change. By incarcerating offenders in reformatories or houses of correction that serve as a controlled setting, attempts are made to re-socialise the offenders towards conformity.

The viability of rehabilitation as an effective strategy to reduce crime and deviance has been a topic of critical debate within the field of criminology. For the past few decades, especially after the release of Robert Martinson's influential "nothing works" essay, which claimed that few rehabilitation programs reduced recidivism, the ideal was largely abandoned. (24) Only recently has there been substantive evidence to the contrary, especially were correctional treatment programs used cognitive-behavioural treatments, rather than punishment-oriented programs to rehabilitate offenders. According to Mackenzie, there is appreciative success in rehabilitation programmes that target the specific characteristics and problems of offenders. (25) This is substantiated by Cullen and Gendreau, who claim that cognitive-behavioural programs that attempt to assist offenders to define the problems that led them into conflict with authorities, to select goals, generate new alternative pro-social solutions and then implement these solutions, are the most effective means to rehabilitate offenders. (26)

The effectiveness of rehabilitation programs depends on how they are implemented. The first principle is that it must address the characteristics that can be changed and are directly associated with the individual's deviant behaviour, such as antisocial attitudes and behaviour, drug use, dealing with anger and resentment. Also important in determining whether a treatment program will be effective is the therapeutic integrity of the programme. Poorly implemented programs, delivered by untrained personnel, where offenders spend only a minimal amount of time in the program, have low success rates. Another important factor is that the programs have to be tailored to the abilities of the offenders, as the more effective programs follow a cognitive behavioural and social learning approach. (27) Although changing human behaviour within the confines of a correctional system is still disputed, it does appear that in at least less serious offences (typically those mentioned as MDC offences), rehabilitation is effective in reducing anti-social or deviant behaviour in some offenders.

Within the SANDF, rehabilitation is neither addressed by the judicial or military correctional (detention) facility. The military courts, for example, do not have the authority to sentence offenders to a rehabilitation facility. Where the underlying problem is simple drug or alcohol abuse, offenders themselves have to opt for rehabilitation and have to use vacation leave if they wish to attend a rehabilitation facility. They also have to pay for it themselves. This is unfortunate, as research shows that drug and alcohol rehabilitation is effective in reducing recidivism of offenders even where they have been coerced into treatment by the criminal justice system. (28) As seen by the SAN offences survey, drunkenness next to AWOL is one of the main MDOs.

4.4 Incapacitation

An enduring debate is whether punishment that involves imprisonment reduces or amplifies future deviant behaviour. Criminological studies indicate that incarceration does little to reshape attitude or change behaviour of offenders. Recidivism rates amongst convicted felons following release from prison are recorded as being as high as 63 per cent, indicating that imprisonment does little to change the behaviour of offenders. (29) Many argue that legal punishments increase future offending and involvement in deviant conduct. (30)

This realisation has led to an approach of combining rehabilitation and restraint in order to reduce recidivism. Examples of such programmes include correctional boot camps. (31) Although such programs too have evoked mixed response, where boot camps combine physically challenging and highly disciplined regimes with well-developed education/training programs with rehabilitation and aftercare, there seems to be some success. (32) The Military Corrective Training Centre (MCTC) in Colchester, United Kingdom (UK), is an example of a prison facility for military personnel, which combines a degree of both.

Unlike the present military correctional facility in the SANDF which serves merely as a punishment/detention facility, with no provision for rehabilitation or re-socialisation, MCTC in Colchester is a detention facility that serves to improve the personal standards, self-discipline and military skills of the detainee. The programme includes a combination of discipline, rehabilitation, education and training. MCTC is the only military prison the UK and houses detainees from all the respective arms of service and is run by military staff. The aim is to return to the services a "better soldier for his experience". MCTC has two programs, those for detainees that will return to the service and for those who are to be discharged. Although it appears as if MCTC has had relative success with military detainees, especially with respect to building the self-confidence, self-esteem and self-belief of detainees, the experiment conducted at MCTC with junior civilian offenders appeared less so.

In an attempt to establish the impact of demanding, highly structured regimes on attitudes, behaviour and recidivism of juveniles, two programmes were run in 1997 to compare the impact, one at MCTC and the other at Thorn Cross Young Offender Institution. The study found that the Thorn Cross programme, which placed a higher premium on cognitive-behaviour thinking skills programmes and on education, training, mentoring and through care, was more successful than the purely military regime presented at MCTC in reducing recidivism. (33) Although the youths attending the MCTC had significantly more positive attitudes towards staff and other inmates at the end of sentence and were more hopeful about the future, the MCTC programme was not as successful in reducing reconviction. (34)

These findings are telling in that they indicate the need to change behaviour and that internal controls (changing values), are more effective than external controls that enforce conformity. In terms of military discipline, it means that the core values of military culture should be internalised and upheld voluntarily as a result of conscience and only where these normative controls fail, should the institution need to rely on coercion to ensure compliance. (35)

5. DISCUSSION

Over the past decade, the SANDF has (and is still undergoing) a period of rapid transformation affecting virtually every facet of the organisation and military life. Any such process is associated with a high degree of uncertainty and ambivalence by those affected. Studies by Durkheim reveal that during such periods of rapid change, when values, technology and social structures shift at different rates, most societies experience a high rate of deviance as both internal and external controls in the environment are weakened. (36)

Internal control refers to those values that are internalised and are reinforced by a surrounding environment in which the individual feels comfortable Macionis and Plummer state that "strong social attachments encourage conformity", while weak relationships create the space to engage in deviance. (37) Since the formation of the SANDF, there has not been enough stability and time to build up a common history or an institutional culture that can serve as a form of reference. Undeniably the racial tensions, lack of trust and uncertainty amongst members serving in the SANDF continue to have a negative impact on discipline and morale. Where external controls in terms of the judicial sanctions too are weak, as is presently the case, it becomes all the more difficult to instil compliant behaviour. (38)

The essence of social control lies in people's anticipation of the consequences of their behaviour. To control behaviour, sanctions need to be consistent and immediate, even if the sanctions are relatively mild. The current policy where disciplinary offences receive low priority, where sanctions are applied sporadically long after the offence and where sentencing serves as minimal deterrence, undermines the effectiveness of the current judicial system. Hereby, it is not claimed that the legal system has little effect on compliance to military rules and regulations, but given the shortcomings, is not as effective as it could be in reducing disciplinary offences.

The current problems are not only due to failures in the military law enforcement system, but also to overriding political considerations, failure of commanding officers to react to disciplinary offences and uncertainty or inability of military leadership to deal with transgressions. Research indicates that "respect for authority figures restrain tendencies toward deviance". (39) Discipline is instilled through training and leadership and is the responsibility of every person in a position of authority to uphold and impose these values. Unfortunately, the respect and culture of obedience is hampered by a perceived lack of trust in military leadership and racial tension still prevalent within the ranks. Adding to this fraternisation, past loyalties and fear of the impact decisions may have on careers, hamper the maintenance of good discipline at present.

While there is good reason to believe that the military justice system as a whole does exercise a deterrent effect and that incidences of ill-discipline would be more prevalent if all cases were to go undetected or unpunished, there appears to be a need to review current sentencing practice. Besides the shortcomings already mentioned in the judicial system, it is clear that sentences need to be more effective if they are to serve as a deterrent. Research on the subject of deterrence is inconclusive in terms of whether raising sentence levels improves specific and general deterrence. (40) The key it seems is not severity, but certainty and celerity. Bearing in mind that relatively minor offences are clogging up the present military judicial system, a viable option would be to consider more extensive use of correctional and non-judicial punishment, as used by the US military.

Establishing what form of punishment works best for different classes of offenders may reduce the present number of disciplinary offences. Often people commit offences because there are certain underlying psychological and social factors that push them to the other side of the law. Because the present South African system is based almost entirely on retributive justice and incarceration, no attempt is being made to understand what factors cause deviance or non-compliant behaviour. There is no attempt to correct or rehabilitate offenders and in so doing, the SANDF for example, loses a good percentage of trained members that otherwise could have been used effectively.

Unlike many other military correctional facilities, the SANDF's present detention facility exists primarily as a prison service where little corrective training or rehabilitation or re-socialisation takes place, A possible option is to use this facility, as does MCTC in the UK to correct and rehabilitate offenders. However, should such an option be considered, the SANDF will need to ensure that the programs have adequate integrity; that it targets those characteristics that can be changed through cognitive-behavioural programs; and that the necessary resources are available to execute this option effectively.

6. CONCLUSION

Based on the preceding discussion, it is clear that the military justice system needs to be revised to ensure a greater degree of certainty, severity and celerity of punishment, and to match the type of sentencing with the offence. By, for example, allowing greater discretion for non-judicial punishment under the present MDC and by granting commanding officers more scope to deal with disciplinary offences at unit level, may reduce current case load and reduce the bottlenecks within the military justice system. Clearly this must be within the confines of law, but can go a long way in ensuring and enhancing discipline within the ranks.

Another shortcoming in the SANDF's military correctional system is that there are no means to correct behaviour or rehabilitate offenders. By restructuring the present military detention facility from merely a punishment facility, to a corrective institute could overcome this inadequacy. The argument is that with the necessary revisions, the SANDF will be in a better position to deal with disciplinary offences and/or return to society a person less inclined towards deviant or criminal behaviour upon their discharge. To a certain extent the DOD has an obligation to consider this option seriously, given the rising number of disciplinary and criminal offences within the ranks. Yochelson, (41) in a study of military offenders found that military personnel convicted of transgressions while in service, "all report an expansion of their criminal careers on discharge".

The present South African system returns to civilian life people trained to kill, without any attempt to reform deviant or criminal behaviour. Having some kind of corrective facility could go a long way not only in improving the personal standard, self-discipline and military skills of detainees, but returning to society a more responsible citizen.
Figure 1: Types of Offences

                                (Per cent %)

Offences civilian law           10,7

Prejudicing Mil Disc             4,3

Using/taking articles            4,5

Reckless driving                 5

Drukenness                       7,1

Insubordination of duty          4

Disobey lawful command           1,8

AWOL                            42,7

Note: Table made from bar graph.

Figure 2: Types of Sentences

                        Per cent(%)

Discharge               1,4

Unspecified             4,4

Reduction rank/         3,6
seniority

Detention/              11,7
imprisonment

Extra duties            10,6

Fine                    52,9

Reprimand               13,1

Note: Table made from bar graph.


* Ms L Heinecken is the Deputy Director of the Centre for Military Studies (CEMIS); Ms M Nel is a lecturer in Criminal and Military Law; and Mr J Janse van Vuuren is an Academic Assistant at the School for Security and Africa Studies, Faculty of Military Science, University of Stellenbosch. This article is based on a report titled Development of a Military Corrective System: A Study by the authors commissioned by the Chief of the South African Navy, V Adm J R Retief, Naval Head Quarters, Pretoria, 1 October 2002.

REFERENCES

(1.) Sunday Times (Johannesburg), 8 October 2000.

(2.) Osiel, M J, Obeying Orders: Atrocity, Military Discipline and the Law of War, Transaction Publishers, London, 1999, pp 26-27.

(3.) Thiart, G, "Introducing Legislation ... that serves well the dual imperative of discipline and justice", Salut, May, 1999, pp 18-19.

(4.) Emphasis added, given that it appears as if under the new MDSMA disciplinary offences have in fact increased since its promulgation in 1999.

(5.) Terblanche, S S, The Guide to Sentencing in South Africa, Butterworths, Durban, 1999, p 180.

(6.) This comment is based on experiences of military legal officers in dealing with disciplinary offences.

(7.) Department of Defence, "The National Crime Estimate (CNE) 2002--An Assessment of the Nature and Extent of Crime in the DOD: Period 1 April 2001 - 31 March 2002", DOD/MPA/C/205/1, 28 August 2002, p 22.

(8.) Comment by a Regimental Sergeant Major, responsible for imposing discipline in the unit.

(9.) Department of Defence, op cit, pp 20-21.

(10.) This data was obtained from the Human Resources Division, SAN, Simons-town, August 2002. How the number of offences were recorded, the structure of the questionnaire, or whether they may have been extraneous factors that could have influenced the recording or processing of the results, is not known to the authors. This information pertains only to the SAN and does not necessarily reflect the profile of disciplinary offences in the other arms of service.

(11.) Macoinis, J J and K Plummer, Sociology: A Global Introduction, Prentice Hall, London, 1997, p 228.

(12.) Ibid, p 229.

(13.) Currently there is a big backlog in offences at CMJ level. This results in offences being tried up to a year or more after they have been committed.

(14.) Keel, R, Rational Choice and Deterrence Theory, http://www.umsl/edu/--rkeel/200/ratchoc.html, 2000, pp 1-2.

(15.) Reid, S T, Crime and Criminology, Holt, Rinehart and Winston, Inc, New York, 1988, p 100.

(16.) Von Hirsch, A, Bottoms, A E, Burney, E, and P O Wiksrom, Criminal Deterrence and Sentence Severity, Hart Publishing Ltd, Oxford, 1999, p 3.

(17.) Terblanche, S S, op cit, p 183.

(18.) Yon Hirsch, A et al, op cit, p 40.

(19.) Nagin, D S and G Pogarsky, "Integrating Celerity, Impulsivity and Extralegal Sanction Threats into a Model of General Deterrence: Theory and Evidence", Criminology, Vol 39, No 4, 2001, p 865.

(20.) For a more detailed discussion on NJP, see "The Commander's Options for Misconduct: Judicial, Non-Judicial or Administrative", Office of the Staff Judge Advocate, http://www.gordon.army.mil/osja/fort.htm.

(21.) Thompson, P and B J Ramos, "Crime and NJP", Navy Times, Vol 47, No 24, 1998, p 12.

(22.) Taussing, J K, Switzer, H B, Wolfe, M E and R I Gulick, Military Law, United States Naval Institute, Annapolis, 1963, pp 19-27.

(23.) Macoinis, J J and K Plummer, op cit, p 229.

(24.) Cullen, F T and P Grendreau, Assessing Correctional Rehabilitation: Policy, Practice and Prospects, 2000, http://www/ncjrs.org/criminal_justice2000/vol3/03d.pfd, p 109.

(25.) MacKenzie, D L, Criminal Justice and Crime Prevention, 2000, http://www.ncjrs.org/works/chapter9.htm, p 14.

(26.) Cullen, F T and P Gendreau, op cit, p 146.

(27.) Mackenzie, D L, op cit, p 14.

(28.) Ibid, p 32.

(29.) Keel, R, op cit, p 2.

(30.) Anon, The Specific Deterrent Effect of Formal Sanctions, http://preventingcrime.org/r2/chapters3--7.htm.

(31.) Boot camp prisons are correctional programs designed to be similar to military basic training.

(32.) For more detailed information on the debate over whether boot camps are successful or not see MacKenzie, D L and C Souryal, Multisite Evaluation of Shock Incarceration, National Institute of Justice Research Report, University of Maryland, Department of Criminology. September 1994.

(33.) Farrington, D P, Ditchfield, J, Hancock, G, Howard, P, Jolliffe, D, Livingston, M S and K A Painter, Evaluation of Two Intensive Regimes for Young Offenders, Home Officer Research, Development and Statistics Directorate, London, 2002.

(34.) The programme presented for young offenders was closed by the Labour government in March 1999 because it was considered too expensive and due its relative lack of success: See Ibid.

(35.) Dandeker, C and A Weibull, Facing Uncertainty: Flexible Forces for the Twenty-First Century, Klaria Trycheri AB, Karlstad, 1999, pp 4-5.

(36.) Goodman, N and G T Marx, Society Today, 3rd Edition, Random House, New York, 1978, p 171.

(37.) Macoinis, J J and K Plummer, op cit p 229.

(38.) Travis Hirschi's Control Theory is particularly useful in understanding the social controls that enhance conformity.

(39.) Ibid.

(40.) Von Hirsch, A et al, op cit, p 41.

(41.) Yochelson, S and S E Samenow, The Criminal Personality, Jason Arnonson, New York, 1979, p 177.

Lindy Heinecken, Michelle Nel and Juan Janse van Vuuren Faculty of Military Science University of Stellenbosch*
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Author:Heinecken, Lindy; Nel, Michelle; van Vuuren, Juan Janse
Publication:Strategic Review for Southern Africa
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