MPs investigate deadly force amendment

2011-08-24 17:13

Cape Town - Draft legislation seeking to change the circumstances in which police officers may use deadly force came under the scrutiny of MPs on Wednesday.

Members of Parliament's justice portfolio committee are examining the criminal procedure amendment bill, drawn up following a request by Police Minister Nathi Mthethwa to change Section 49 of the principal act.

Section 49 regulates the use of force during the arrest of a suspect in a criminal matter. The committee has called for submissions on the measure.

According to the minister, the amendment is necessary to bring the legislation in line with a Constitutional Court judgment in the Walters’ case.

The judgement refers to the use of force during an arrest. The court had ruled that the shooting of a suspect to carry out an arrest was permitted in very limited circumstances.

Speaking during his submission on Wednesday, constitutional law expert Pierre de Vos told the committee the amendment was not necessary.

"What is required is not an amendment of the law. Something far more difficult is required: more sustained training of the police to interpret this [legislation]... And that is really the heart of the matter."

Responding to questions on the proposed amendment to the act, he said it was not a limitation but actually an extension of the powers provided to the police.

"To the extent it extends the power of the police in both defending themselves and in using deadly force in arresting somebody, it goes beyond what the Walters’ judgment actually says is permissible," he said.

‘Violation of human rights’

The justice department has defended the bill, saying it will provide "greater legal certainty to arresters".

In a statement earlier this year, it said the police wanted the amendment partly because a police officer chasing a known violent offender "runs the risk of the suspect turning around and firing at the police officer".

According to the Independent Complaints Directorate, 524 people died in police action last year, up from 282 in 2005/2006.

Among organisations set to make a submission to the committee are the Law Society, Lawyers for Human Rights, the Centre for the Study of Violence and Reconciliation, and the Institute for Security Studies.

They are largely opposed to the measure, with the Law Society reported as saying the measure, if adopted, would lead to a violation of human rights.

At the time Cabinet approved the bill, in September last year, it said the measure "strives to provide greater legal certainty to arresters regarding circumstances under which force may be applied when attempting to effect an arrest, and the nature of the force that may lawfully be used in the process".

The proposed legislation will authorise the police to shoot if the suspect in question is suspected, on reasonable grounds, of having previously threatened or caused serious bodily harm to someone.

The committee has received 18 submissions.

  • gatvol4corru - 2011-08-24 17:36

    Cops are already out of control with Cele's "shoot to kill" policy. Dect sentences,well-trained cops that not racist,nor corrupt can make a change.

      Zebelon - 2011-08-25 23:20

      Wanton killing of the police was there before Cele, gatvol4corru.

  • BlendedFrog - 2011-08-24 17:40

    Whilst of the opinion that a person convicted of a crime should lose most of his rights under the Constitution, I am mindful that any suspect - under hot pursuit or otherwise - is Consitutionally innocent until a court finds to the contrary. It is potentially very dangerous, therefore, to extend the power of a police officer to shoot a fleeing suspect before that suspect offers violence to that pursuing officer or innocent bystanders. It would be too easy for an officer to use deadly force in circumstances where he/she might, for example, be losing a running race with a suspect or where there are no witnesses (other than fellow police officers) to the circumstances of the pusuit and intended arrest. There may already have been instances of hot pursuit shootings where the suspect(s) have been wanted for the earlier assault or murder of police officers and the temptation on the part of police to administer instant 'justice' to suspects must be almost overwhelming. Police action is reactive; regarding the use of any kind of force, it should never be pre-emptive or prescriptive. Having said that, I am of the firm opinion that use of deadly force by police in self-defence is perfectly justified - but this should be solidly reinforced by better training and better selection of those individuals for work as demanding as police work.

      d54 - 2011-08-24 19:14

      So even a convicted murderer running from and outpacing the police should rather escape to murder again putting the public in danger? Are you nuts? If a person is escaping an arrest and clearly knows they are being chased by police then the police have my vote to shoot to effect an arrest. This goes for car chases as well.

      Zebelon - 2011-08-25 23:27

      BlendedFrog, You do not know the extent of police training. Thus, you cannot suggest "better training",unless you know their standard is below par.

  • BlendedFrog - 2011-08-24 20:46

    @d54 - on the face of it you make a fair point. However, if you are speaking of a convicted murderer who has served his sentence then he is constutionally innocent of any fresh crime he is accused of until a court says otherwise and my earlier comments apply. If, on the other hand, you are speaking of a person just convicted who seeks to escape the custody of the court/police and if he is reasonably suspected of being armed then, yes, he is fair game IF he has threatened or harmed a police officer or bystander. My earlier point about police training also applies - with well trained and a well run police force the scenario of suspected criminals outpacing police in pursuit should not arise. This is especially true in these days of radio communications and support vehicles. Never forget that the police - in whatever form - are the coercive arm of government, regardless of where you are in the world. The idea behind the Constitution and related legislation is to protect the weak and innocent against those who have, either by virtue of money or position in society, the means to unduly exert their own selfish whims on those unable to respond in kind. This why, until proven otherwise, a suspect must always be accorded at least some benefit of doubt, inconvenient and unsavoury as that may be at times. Alternatives would be Mexico-type street anarchy or Syria-type repression and wholesale murder. The SAPS need few extra laws but do need to better use those already in place.

  • elactric - 2011-08-24 20:48

    If one is innocent why run away? Running away is an admission of guilt and what the suspect is suspected of determines the urgency to apprehend such a person.

  • crackerr - 2011-08-24 23:17

    Change the law (Constitution) to give lawful property/dwelling owners/occupiers the right to kill anyone found there who entered without permission and by any devious/surreptitious means. Also give the public the same rights as police will have with respect to the arrest of suspects of serious crimes. Sounds crazy? Agree. But still very desirable if not essential.

  • Zebelon - 2011-08-25 23:18

    One elementis left out in all the proposals advanced so far - the criminal. How do you cause the criminal not to shoot at the police? Work on his mind by bringing the death penalty back.

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