Restricting the Right to Shoot
Human Rights Dialogue 2.8 (Fall 2002): "Public Security and Human Rights"
December 31, 2002
Unsurprisingly, respect for the rights of criminals in the country is low. In 1998 a parliamentary move to restrict the right of police to shoot at fleeing crime suspects (Judicial Matters Second Amendment Act no. 122) was condemned by the public and blocked by the Ministry of Justice. Three-and-a-half years after that move, and with a record of nearly 2,000 suspects having died at the hands of the police, the Constitutional Court limited the right to shoot this past May.
In its 2000 annual report, the Independent Complaints Directorate (ICD)––a statutory body with the responsibility for investigating police conduct and offenses committed by members of the police service––described a “dramatic” hardening of public attitudes toward the rights of criminals. “There seems to be a growing popular perception that the constitutional rights of criminals are being protected above those of their victims,” the directorate reported. It is not uncommon that crime suspects are killed by members of the public, as a result of either vigilante activity or citizen action to bring about an arrest.
There are no available figures on the extent of such killings, but ICD does record the number of crime suspects killed by members of the South African Police Service (SAPS), and it is worryingly high. According to ICD, between April 1997 and March 2001, 1,980 people were killed as a result of police action in South Africa—an average of 500 per year. Of these, almost 90 percent died from gunshot wounds, half of which were inflicted in the course of an arrest. The numbers are comparable to the Brazilian city of São Paulo, where police killed 481 civilians in 2001. By comparison, some thirty to forty civilians are fatally shot every year by members of the New York Police Department––down from more than sixty in the 1970s. The high fatality figures in South Africa drew the attention of human rights organizations to the laws that permitted the use of force to bring about an arrest.
According to the original “right to shoot” law (Section 49, Criminal Procedure Act no. 51 of 1977), if a police officer is unable to effect an arrest or prevent a suspect from fleeing by means other than killing, the killing is “justifiable homicide” in either of two situations: if a person is being arrested for a listed offense, or if an arrestor has reasonable grounds to suspect that such an offense had been committed. Listed offenses include serious violent crimes, but also cover malicious damage to property, fraud, and theft. This means, for example, that a police officer is legally entitled to kill a shoplifting suspect who could outrun him or her.
When in 1998 the Department of Safety and Security within the Ministry of Justice opposed the amendment passed by parliament to limit the right of the police to use lethal force to arrest a suspect, then–Safety and Security Minister Steve Tshwete commented,
We are dealing with criminals who are motivated by the understanding that human rights laws are tilted in their favor. If you say to the police they must not take their guns from their holsters until they’re threatened, by that time, in some instances, they are already down.
The national police commissioner concurred that high crime levels, considerations of public safety, and the many police officers killed––some 200 a year––warranted the retention of the pre-1998 law that gave officers the right to shoot. He further argued that the violent nature of South African criminal activity undeniably brings police officers into situations in which lethal force is necessary.
In blocking the amendment, the Department of Safety and Security also argued that 25 percent of SAPS officers are “functionally illiterate” and are therefore unable to determine whether a suspect poses danger. SAPS, an amalgamation of the former South African Police and the police forces of the apartheid-created black homelands, inherited the under-qualified officers in its ranks. As a matter of policy, SAPS is supposed to administer training courses in human rights to new recruits. Since 1994, however, there has been a hiring freeze within SAPS that was only recently lifted. Thus, in reality there has been almost no human rights training.
In response, two Johannesburg-based NGOs––the Centre for the Study of Violence and Reconciliation (CSVR) and the Institute for Human Rights and Criminal Justice Studies (which is affiliated with Technikon South Africa, a college that offers training to police officers)––are assisting SAPS in providing human rights training for police officers. Yet it is not easy to reach these officers. According to David Bruce, a senior CSVR researcher, CSVR’s emphasis on human rights and its criticism of the high number of fatalities at the hands of the police have not always endeared it to street-level officers.
In February of this year, the parliament announced that the amendment to the “right to shoot” law would finally come into effect. However, this decision was once again overruled—this time by President Thabo Mbeki, who asserted that further debate was needed. The impasse was resolved by the Constitutional Court, which decided unanimously in favor of the parliament and the amendment.
The court ruled that the use of potentially deadly force to bring about an arrest should be limited to cases in which a suspect either poses a violent threat to persons at the scene of the arrest or is reasonably suspected of having committed a crime involving the infliction or the threat of infliction of serious bodily harm. The court agreed with the Department of Safety and Security argument that it is unfair to expect police officers to determine whether a suspect poses a serious future physical threat, but interpreted this as proof of the need to limit, rather than to extend, the right to shoot to under-trained and overtaxed police officers. Further, the court argued that the rights to life, human dignity, and bodily integrity are essential to the value system prescribed by the constitution. “Any significant limitation of any of these rights would for its justification demand a very compelling countervailing public interest,” the court concluded.
The court stressed that its ruling did not limit the right to self-defense. Nevertheless, the front-page headline of the Citizen, one of the country’s largest circulating dailies, announced: “Police Blast Shooting Ban.” The article quoted an unnamed senior police officer: “Why are they [the Constitutional Court justices] protecting the rights of criminals? I think the court has no idea what it is doing. Maybe they should come and work as policemen for a while––then they will sing a different tune.” The same report quoted the official opposition Democratic Alliance stating that the safety and security minister “must not allow the Constitution to be a suicide note for the SAPS.”
Six months after the Constitutional Court’s ruling, much public misunderstanding persists. SAPS is developing an internal campaign to inform its officers of their rights and obligations when using force to apprehend crime suspects. And for its part, CSVR and Technikon South Africa are planning similar public education campaigns that will serve the private security industry. These steps cannot assuage the public’s fear of violent crime, which still urgently needs to be addressed. But they are at least steps in the right direction.
Makubetse Sekhonyane on the Police in Post-Apartheid South Africa
In May 1996 the Constitution of South Africa was enshrined as the highest law of the land, guaranteeing human rights to all people of South Africa for the first time. Since then one of the barriers to the realization of those rights has been the police.
Under apartheid millions of South Africans experienced violence at the hands of the police; brutality, detention without trial, and forcibly extracted confessions were characteristic practices. With the ushering in of the new era, South Africans wanted police reform. The 1998 amendment of the Criminal Procedure Act limiting the police’s right to shoot represented a significant step forward in the transition of the South African Police Service (SAPS) from an occupational army to a democratic police organization. Unfortunately, with the rampant rise in crime the public did not view the amendment in this light; instead, it was fearful that it would mean a less effective police force to protect it.
What is needed is a balanced policy approach to criminal justice that addresses public calls for greater security and that avoids draconian measures that infringe upon civil liberties and human rights in general. To provide the government with the information to achieve this, during 2001–2002 the Institute for Security Studies, in collaboration with SAPS, initiated a study at selected sentinel sites around Johannesburg. The study clearly shows that members of the police service are vulnerable to violence, and their legitimate fear goes a long way in explaining why South Africa has such high rates of police killings.
Martin Schönteich explains that the police lack training in a number of areas, particularly in conducting searches, entering premises, and stopping vehicles. The study also finds that police have few alternatives to lethal force at their disposal, making their jobs even more dangerous. In the period before the transition to democracy, South African police had access to sufficient nonlethal equipment, including nightsticks, tear gas canisters, and back-up guns. Today they carry only their work-issued pistol—a change that reflects, in part, the desire to project an image of a shift from a military-type police force to a civilian-type one in which the police are part of the community.
Police also lack proper protective equipment. The vests they are given are outdated, designed to stop bullets from AK-47s, not close-range 9mm pistols that a criminal would typically use. They are also heavy and uncomfortable, especially in hot weather—as a result, officers tend not to wear them. Members of the police told us they were reluctant to investigate crimes in progress in which firearms were used and that they often do not have handcuffs or the hand-held radios needed to call for back-up.
The problem is further exacerbated by the absence of clear policy guidelines regarding the use of force. As part of the study, we interviewed a number of police officers in the Crime Prevention Unit. They complained that new laws are not adequately explained to them. Moreover, they do not have a working knowledge of the constitution nor, most critically, Section 49 on the use of force. The officers worried about how they would carry out their duties if the law restricted their right to shoot.
In the face of escalating crime, citizens, like the police, are beginning to see human rights standards as impeding police work and protecting criminals. There is a disjuncture between what the law says and what the police do. To prevent the undermining of a rights culture, SAPS needs training in matters of human rights. Officers should know the new legislation and receive instructions on how to adhere to it.
For more information on this study and the Institute for Security Studies’ work with the police, visit the Criminal Justice Monitor Web site.