David Bruce This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
In 1985 in its judgment in Tennessee v Garner the United States Supreme Court stated that the killing by the police of unarmed non-violent fleeing suspects was contrary to the US Constitution.
In the ten year period following the Garner judgment 708 police officers were feloniously killed, as compared to 971 in the ten year period prior to Garner, a decline of 27%.
Restrictions on the use by the police of lethal force therefore do not necessarily have negative consequences for their safety.
In November 1998 our parliament passed an amendment to Section 49 of the Criminal Procedure Act – the law which regulates the use of lethal force for purposes of arrest.
The amendment largely restricts the use of lethal force to situations where the use of force is necessary to prevent threats to life or threats of grievous bodily harm or where there is a danger of future death or grievous bodily harm.
Soon after he was appointed to office in June 1999 Minister of Safety and Security Steve Tshwete obstructed the implementation of the amendment ostensibly on the basis that it places police safety in jeopardy.
Now, with the old section 49 the subject of a Constitutional Court case, and after renewed efforts to have the 1998 amendment implemented, State President Thabo Mbeki has once again obstructed its implementation, on the basis of complaints by the police that the law endangers the safety of the police and hampers them from executing their duties.
Is there any substance to claims that the 1998 amendment places police members in jeopardy?
The amended legislation is somewhat confusing partly because it duplicates existing common law on private defence which allows for the use of force in defence of one's own life, or the life of another person. Thus, both under the 1998 amendment and under the common law, police and other persons retain the right to use force where their own lives or others would be endangered.
As has been the case in the US where changes in the legal situation have not negatively impacted on the right to self defence the broad impact of the 1998 amendment therefore should not be that it negatively impacts on police safety.
But this is not to say that there are not several other flaws in the amendment. Perhaps the most important of these is the wording of the amended section 49(2)(a) and (b) to the effect that lethal force may be used to prevent the flight of a person who poses a risk of 'future death or grievous bodily harm'.
These provisions place a responsibility on the person using lethal force, to make a judgment as to whether or not the fleeing person is likely to cause death or serious bodily harm in the future.
But as two US experts on police use of lethal force, William Geller and Michael Scott, have observed 'as is well known within the criminal justice policy community, nobody – forensic psychologists, psychiatrists, parole boards, seasoned police officers – has yet demonstrated an ability to predict a given individual's future dangerousness with anything approaching even 50 percent accuracy'.
The principle that the law should make provision for the use of lethal force for purposes of arrest against fleeing persons, who are believed on clear grounds to pose a threat of future death or grievous bodily harm, is essentially a sound principle and should be central to South African law on the use of lethal force.
But a mere statement of the principle is not sufficient particularly in current day South Africa, with high levels of gun ownership and major levels of violent crime. The law therefore needs to go beyond stating the principle and provide more concrete guidance on how such a principle needs to be understood by police and others who are authorised to act in terms of section 49.
With one or two qualifications, the provision in the June 2001 Supreme Court of Appeal Govender judgment, that lethal force is justified 'where the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm' may be seen as a preferable more concrete formulation which, in effect, gives expression to this principle.
While there are uncertainties with regard to the interpretation of most laws, the need for the law to provide a high degree of clarity applies particularly to laws dealing with lethal force as they authorise the taking of human life and are irreversible in their consequences.
Clarity is also necessary because Section 49 is not only confined to police officers, but also authorises the use of lethal force, for purposes of arrest, by members of the public.
As it stands the major weakness of the 1998 amendment is not that it puts the police in danger. But the law's lack of clarity may create a risk to the police, through confusion as to whether the law is applicable in situations of danger where decisive action and not hesitancy is called for.
It is important that the current impasse regarding the use of lethal force be urgently resolved. While the current discussions between the SAPS and department of justice may conclude in an agreement to make do with the 1998 amendment it may be preferable that a revised amendment be urgently formulated, passed by parliament, and implemented.
By obstructing implementation of this amendment for more that three years, while failing to address its flaws, government is acting in breach of its own authority as well as undermining the authority of parliament, and thus of the Constitution and the rule of law.
In so doing it can hardly claim to be serving the interests of police, or of civilian, safety.
David Bruce is a Senior Researcher in the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
In Business Day, 22 February 2002.
© Centre for the Study of Violence and Reconciliation
CSVR is a multi-disciplinary institute that seeks to understand and prevent violence, heal its effects and build sustainable peace at the community, national and regional levels.
