Shoot to Kill: A Camouflaged Revival of the Death Penalty and Reversal of the Bill of Rights? - Sangonet

The level of crime in South Africa has evidently sent government into emotional bewilderment. This is more so as a result of the violent crimes whose perpetrators are apparently merciless and recognise no boundary. Everyone, excluding the perpetrators and those with whom they act in cahoots, is under siege. Obviously any responsible government would want to do something to curb or rid its population of such a scourge. Taking the fight to the criminals! The question is how?

It would seem from the repeated and currently famous utterances by government officials, that the immediate option at hand is that of introducing further amendments to sections 26 and 49 of the Criminal Procedure Act (CPA) 51 of 1977 (as amended by the 1998 Act), so as to afford police officers the clear power to ‘shoot to kill’ criminal suspects who pose imminent threat to them or to other members of the public. A reason given for the proposed amendment was that the Act deprives police of the necessary powers to execute their job. Lately, however, the argument has shifted to say that the Act is not clear to the police and therefore it requires clarification and simplicity. The latter was echoed by Advocate Tseliso Thipanyane, chief executive officer of the South African Human Rights Commission and another panellist during the recent South African Broadcasting Corporation (SABC) discussion and debate programme, Asikhulume.

The killing of Captain Charl Scheepers by a thug, whom he allegedly warned three times to drop his gun; portrayed evidence of the police’s misunderstanding of the provisions targeted for amendment.

Coincidentally and ironically, on the day of the Asikhulume programme, members of public travelling in a motor car fell prey to reckless lethal use of force (shoot to kill) by members of police in Mabopane, near Pretoria. Olga Kekana unnecessarily lost her life in this tragedy.

Given these two incidences, it is evident that there was no threat to neither the police nor the victims. Based on this, one could innocently believe in the claim that the Act is unclear to members of the police. I totally disagree.

Prior to its amendment after being ruled by the Cape High Court and affirmed by the Constitutional Court to be unconstitutional in State v Walters, the Act allowed police and members of the public to use lethal force against criminal suspects. This applied regardless of whether it meant killing the suspect for pinching, for example, a loaf of bread or an apple from a store. What mattered was whether the suspect ran from the alleged crime scene and refused to stop when ordered or warned to do so. The effect of such an open-ended authority to the use of lethal force, was that it deprived suspects their human rights guaranteed in the Bill of Rights, which inter alia, includes the right to the due process of law and the right to life which the Bill of Rights guaranteed and still does. The amendment was applauded by civil society groups and generally by the larger population of the previously oppressed which had been the main victims of the open-ended provisions.

In its amended form, the new provision curtailed the use of lethal force and introduced a requirement of reasonableness and proportionality. This required that other alternative measures be considered and employed before using such force and reserving its use to worst kind situations. An apple or loaf thief would consequently no longer, by mere theft alone, face a possible or imminent threat to life or limb by police or members of the public. This would be so even if the perpetrator ran from a crime scene.

If the suspect produced a lethal weapon and despite being warned to drop it persists and threatens the arrestor, the latter may use the force that is proportionate to the threat. He may have stolen an apple or a loaf of bread, but the act of producing and directing a lethal weapon (e.g. a gun) against the arrestor would warrant an immediate countering. This is so even if it later turns out that the gun was not loaded with ammunition. The same would be the case if the weapon clearly looked like a legitimate gun but later turns out to be only a toy gun. 
However, if for example, the suspect produces a knife and is a safe distance away from the arrestor and does not in so doing charge towards the arrestor or does not keep anyone hostage or pose imminent threat to anyone, there would be no need to employ lethal force. The same applies if the running suspect can be later traced through investigative procedures.

To the extent that members of police may not understand the amended provisions, that could in my view be attributed to lack of education and training of police (especially of those who are not-office bound and are patrolling the streets) about its provisions and not as such ambiguities in the Act. Therefore, if it is true that Captain Charl Scheepers gave his murderer three warnings before he was himself shot and because he did not understand when he should apply the necessary force, then that leaves the Police Ministry’s education and training processes wanting rather than alleged defects in the Act. For that, I would implore government to invest more resources in achieving that objective.

The history of the ‘formal’ criminal justice system in this country has shown that no amount of force has ever deterred violent crimes. During the reign of the Apartheid regime, for example, police had all the powers to shoot to kill actual and sometimes imaginative criminal suspects, at times willy-nilly. I am tempted to claim that the government of the time invested more resources in creating an emotive and provocative police force that was meant to counter, then so-called ‘black terrorism’. The police then did not belong to the entire population but to the minority government and for the preservation of interests of a designated minority population. Such police was inevitably bound to gain neither legitimacy nor support from the marginalised part of the population.

The post 1994 police authority is by virtue of the democratic Constitution meant to belong to the country’s population as a whole and to therefore legitimately expect and get its support in crime prevention, investigation and curbing. But does it get such support and if not, why?

What immediately springs to mind as a probable cause is the lack of effective and reliable or trusted witness protection mechanisms. If arrested criminals walk out of courts because witnesses were unavailable or unwilling to testify that should be a serious cause for concern to police authorities, and demoralising to the arresting and investigating officers. Furthermore, since suspects of criminal offences at times include elements within the police service itself, how safe and trusting is it for witnesses to cooperate with the investigators? To assume witnesses’ unsuspecting and unqualified cooperation with investigators would be reckless and tantamount to undermining their intelligence.

Then there are still the language and attitude factors to take into consideration. In my personal experience, I have witnessed police officers who come from communities which seem to consider their languages to be superior above others, even against the clear provisions of the democratic Constitution. In other sectors (e.g. security), members of such communities would foolishly and unashamedly tell you that they do not hear you and that you should explain yourself in their ‘human’ language, as if yours is that of an ape. Come on, come out of the closet and get civil!

In the police sector, however, there are those who would say it indirectly and a few who would openly say that they can’t hear your language – thereby suggesting that you speak theirs. Fortunately for me and knowing my rights and neither feeling inferior nor superior to any language group for that matter, I always persist speaking in my language to the police. The question is how do you entice local community members to work with police whom they consider alien and ‘too superior’ linguistically?

The approach, mannerism and attitude of some police officers only widen their alienation from community members. Imagine walking with your wife and children in the street and all of a sudden a police van pulls up in front of you and a police officer starts fondling you – while also smelling of a fermented substance. This would leave one feeling feel humiliated and degraded. Some of us do not shun committing crimes out of fear of police. We just don’t commit the filths because of the nature of our cultural and religious upbringings. We therefore do not need policing to be our good selves! As a husband and father, how does one wipe the humiliation and degradation by such a police from my own, my wife’s and children’s disturbed memories? In my case, my recipe would be to disown police generally and not come to their aid in the investigation and prevention of crime - by the same measure that I would disown criminals and not come to their aid in their commission and perpetuation of crime. The moral of this is that police must treat law abiding citizens with sensitivity and dignity.

There should also be better control of ports of entry and documentation of all people within the South African borders – these are self-explanatory and in fact, much been said about it before. Lack of all of the latter is probably the reason why some bank or business robbers would look and laugh at the surveillance cameras. One cannot help but assume that they do so because they know that they will not be easily identified.

Returning to the subject, my view is that in the absence of any ambiguity in the CPA above (which as I said there is no substance to such a claim) and the failure of the government to provide serious education and training to police about their entitlement and limitations in terms of the Act, any further public and populist uttering and threats on the use of lethal force, would create a state of uncertainty and tension in the society. Police and members of the public would be isolated from each other. As it is usually said, ‘the more things are changed, the more they remain the same’.

Considering some opposition parties and some members of civil society have always and persistently been calling for a referendum on the return of the death penalty into South Africa’s criminal justice system, with mixed reactions from the ruling party, one cannot help but wonder whether current attempts on amending the Act are not directed towards indirectly reviving the death penalty through blooding the hands of the police and not those of the would be hang man. President Jacob Zuma stated prior to his election that a referendum into the death penalty would not be a problem if South Africans wanted it.

While one understands the frustrations and responsibilities of government to protect law abiding citizens that must not however, come at any cost. Emotional and populist uttering are certainly not a way to go in solving this scourge – in contrast, this may put the lives of the intended beneficiaries (law abiding police and the public) at serious risk even more. Government must more than before, extend more partnerships with some not so formal crime busting civil society structures, who may prove more experienced in detecting and spotting crimes. It is not a sign of weakness to do so – it is making everyone feel relevant and part of the bigger picture.

Alternatively become clearer and tell us that government wants (at any cost) to revive the death penalty; render the Constitution and the Bill of Rights redundant; and multiply police roles further into court orderlies, prosecutors, judges and hang men. So far government has only achieved ‘raising its voice’ and still has to ‘develop its argument’ to persuade right thinking South Africans as to what informs the proposed further amendment of the Criminal Procedure Act.

Lesirela Letsebe, Attorney and Project Manager: Refugee and Migrant Rights Project, Lawyers for Human Rights (Pretoria Office).