You know that there is something fundamentally wrong with society when politicians are roundly applauded when they call on police officers ? those entrusted to protect the community ? to 'shoot the bastards'. When they brush aside the death of a three-year-old child as collateral damage in the war on crime.

When seemingly law-abiding citizens bay for blood, it is an indication that the violence inherent in South African society has indeed permeated the national psyche. It is an indication that South Africans favour vigilante justice over the rule of law; that we care little for the rights enshrined in our Constitution; and that we accept the notion that the means justify the end.

Until the collateral damage is your mother, your child or your loved one. Replacing one set of criminals with another more legitimate set is hardly a viable solution.

Letter of the law

The debate surrounding the issue of the rights afforded to police in the Criminal Procedure Act is not a new one. In fact, in 1998 Parliament voted to amend the Apartheid-era Act, dating back to 1977, because it was found to be unconstitutional.

Although Parliament voted in favour of the amendment, it took a Constitutional Court ruling before the legislation was actually amended. The previous act allowed police officers to use lethal force in order to effect an arrest or prevent a suspect from fleeing, if the officer had reasonable grounds to suspect that the suspect had committed a schedule one offence (anything from treason to robbery to murder).

As our Constitution states that we all have a right to life, bodily integrity and to be presumed innocent until proven guilty, this Act was clearly not in accordance with the Constitution.

The Act was thus amended to ensure that police were only able to use lethal force under specific circumstances. As it stands now, Section 49 (2) of the Criminal Procedure Act (the section currently under debate) states that lethal force may only be used if the officer has reasonable grounds to believe that:

  • Force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor, or any other person from imminent or future death or grievous bodily harm.

  • That there is substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed.

  • That the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life-threatening violence or a strong likelihood that it will cause grievous bodily harm.

As it currently stands, the law permits the officer ? as it does any other South African citizen ? to shoot to kill in self-defence (your life or the life of a third party must actually be in danger). It also provides some leeway if the suspect is engaged in a violent crime or if there is a strong likelihood that failing to carry out the arrest will lead to more death or grievous bodily harm in the near future.

It does not allow police officers to shoot at three-year-olds, or petty criminals fleeing the police, or citizens driving innocently in a car which may or may not look a bit like another car.

The right to wear the uniform

It is hard to image how the Police Ministry hopes to amend Section 49 without infringing on the rights enshrined in the Constitution. The problem, it would seem, lies not with the letter of the law (which provides police with sufficient rights for self-protection), but rather in the interpretation.

And this, regardless of how the law is amended, is always going to be a problem. There will always be a point at which the officer in question needs to assess the situation and make a judgment call. The solution, therefore, is not to tweak perfectly acceptable laws to accommodate inadequacy, but rather to train police officers better so that when faced with the inevitable judgment call, they make the right one.

Under no circumstances does a three-year-old wielding a pipe pose a lethal threat. And if, as a police officer, you cannot discern this, you have no right to wear a police uniform or carry a gun.

It is not the duty of the Police to administer justice; we have a justice system for this. In their war against crime, the Police Ministry would do well to remember that it is the duty of the Police to serve and protect all of South Africa's citizens.

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