Thou Shall Not (Just Shoot to) Kill

In the last few weeks in South Africa, exponents and antagonists of a proposed ‘shoot to kill’ policy have been provided with ample ammunition. On the one had, enforcing the case for those in favour of a hardline approach, Pretoria police officer, Captain Charl Scheepers, was shot dead in the line of duty while attempting to arrest a suspect. It is alleged that a security guard shot Scheepers twice in the stomach after the officer demanded that he surrender.

Published on 18 November 2009 in ISS Today

Emmanuel Mararvanyika, a consultant in the OC&ML programme, Cape Town Office

In the last few weeks in South Africa, exponents and antagonists of a proposed ‘shoot to kill’ policy have been provided with ample ammunition. On the one had, enforcing the case for those in favour of a hardline approach, Pretoria police officer, Captain Charl Scheepers, was shot dead in the line of duty while attempting to arrest a suspect. It is alleged that a security guard shot Scheepers twice in the stomach after the officer demanded that he surrender. A few weeks later, two separate attacks on law enforcement officers took place. One involved the multiple stabbing of a student constable on a train by robbers who wanted her service pistol, which she was not carrying. In the other incident, robbers stabbed a traffic officer outside her home in the Western Cape. While the first case involved an officer on active duty, the latter two were not on duty at the time they were attacked. The relevance of pointing this out is to put the murder of police personnel into perspective. Despite the relatively high figures, only a small percentage of such murders occur in the line of duty. When advocating for the use of lethal force within the scope of active duty, this fact must be borne in mind.

Meanwhile, enforing the case for those against the “shoot to kill” policy, police in Pretoria were involved in a wrongful killing incident, where lethal force was used on what was thought to be a group of hijackers. One passenger died. As it turned out, it was a case of mistaken identity. At the time of the shooting, the police involved in the shooting believed that the vehicle fitted the description of a wanted vehicle in the area. Of interest, however, is the fact that no bullets were fired at the police, no sirens had been activated to warn the suspects, no less than thirteen shots were fired by the police and no weapons were found on the alleged hijackers. This implies that the police did not see any weapons to justify the use of live ammunition. Their intention was however clear in this instance: shoot to kill.

Police are in fact permitted to use lethal force in certain circumstances as set out in the much talked about section 49(2) of the Criminal Procedure Act (CPA). A police officer acting in self-defence or to prevent a serious violent offence directed at another person, can shoot to kill. The resort to force should be proportionate to the harm threatened or the crime alleged to have occurred.

The phrase ‘shoot to kill’ implies the absence of any intention to arrest the person shot, as the aim is to end life. The purpose of arrest is to bring the suspect to justice. When one shoots to kill, the intention is not to arrest the suspect, but rather to arrest the alleged criminal activity. Apart from circumventing the criminal justice system, ‘shoot to kill’ is a policy that places the police in a position that runs contrary to the Constitution, where the right to life is upheld as the most significant right. Subject to the common law defences of self-defence/private defence or defence of another, whose criteria have in essence been entrenched into the current section 49 of the CPA, it is unconstitutional to take life deliberately, let alone enact legislation to that effect, and no amount of ‘legal wordsmithing’ in terms of amending the current section 49 can elude that constitutional principle. An amendment to existing law would have to be added as section 49(3), and justify the killing of a suspected offender on the basis of a combination of factors such as: ·the suspect’s criminal record,

A new shoot to kill directive has to withstand the specific ruling of the Constitutional Court which explained the meaning of and upheld the right to life in the case of State vs. Makwanyane. In other words, it would only survive if the court reinterprets the right to life, which is highly unlikely.

One is therefore left to ponder whether politicians are simply not stating the obvious reality that is already in practice. Is a call for ‘shoot to kill’ legislation no more than a misunderstanding and misinterpretation of section 49(2) of the Criminal Procedure Act? Writing in the African National Congress`s weekly newsletter, and in the context of the Scheepers murder, President Jacob Zuma acknowledged that "[a]s it stands, section 49 does allow the police to use even deadly force in order to effect an arrest or to prevent the commission of a crime.”1He went on further: “ In practice, however, the lack of a clear directive compels policemen to err on the side of caution...Given the violent nature of crime in our country we need the law to err on the side of the police and not criminals.”2 The issue at hand therefore is not about whether or not the police can use lethal force, or when they can do so. That is clearly endorsed by the current benchmarks of proportionality and reasonableness within section 49, as acknowledged by the president. The media, through whom public opinion is expressed, may be to blame for admittedly focussing more on comments about amending section 49, while paying little or no attention to the government’s comments to strengthen the Independent Complaints Directorate, the police watchdog, to ensure that the proposed changes to section 49 are not abused. As a result, ‘shoot to kill’ is becoming a policy essentially formulated by the media for sensational purposes, considering that the executive acknowledges and respects the requirements of section 49.

‘Shoot to kill’ can therefore be viewed as the media’s fascination with reporting only one perspective of events and political opinions, combined with negligent political utterances of the past that lacked an accurate appreciation of the current criminal procedure laws of South Africa.

The executive is however not blameless and the President’s comments above were probably made after much careful consideration. In the run-up to the 2009 South African general elections, Susan Shabangu, former deputy Safety and Security Minister, stated: "You must kill the bastards if they threaten you or the community. You must not worry about the regulations - that is my responsibility...Your responsibility is to serve and protect...I want no warning shots. You have one shot and it must be a kill shot."

One would have to wait and see the proposed amendments to section 49, combined with the oversight mechanisms to prevent abuses of such amendments. In the meantime, thou shall not just shoot to kill.

Notes