Deadly force for police use only, MPs told

Parliament hears proposed changes to the law governing the use of lethal force under section 49 of the Criminal Procedure Act should apply only to police officers making an arrest and not to private individuals acting in self-defence.

Proposed changes to the law governing the use of lethal force under section 49 of the Criminal Procedure Act should apply only to police officers making an arrest and not to private individuals acting in self-defence, Parliament’s justice committee was told yesterday. Police shootings and the use of lethal force have been in the headlines of late. Both were particularly pertinent at yesterday’s committee deliberations following last week’s shooting of a youth, allegedly by a student policeman. Public hearings in the justice committee last August contained a wide variety of responses ranging from outright rejection of the new proposed section 49 to it being a welcome clarification of how and when police could use their firearms. At issue is when police can use deadly force to prevent a dangerous suspect from escaping. During last year’s hearings, University of Cape Town law professor Pierre de Vos warned : "Legislation that provides a blanket power to arrestors to use deadly force against anyone suspected of committing a crime involving serious threat of bodily harm, where suspects flee or resist arrest, would not pass constitutional muster."

Gen Tertius Geldenhuys, commenting on the public submissions, said yesterday that he was concerned some of the submissions wanted the law to apply to both police and private individuals. He explained that the way it was drafted, it applied to a specific purpose, and that was a police officer making an arrest to secure an appearance in court. The rules governing how private people could apply lethal force were covered by the common law. He said the amendment was an important measure which defines the "threshold that must be crossed before force can be used". He described the case of a young officer who had decided that an armed, fleeing suspect could not be shot in the back and ran after him, only to have the suspect turn and fatally wound him. Gen Geldenhuys agreed with submissions that stressed the importance of training in the matter of using deadly force, and also supported calls for a "use of force policy" to be developed. But sceptical MPs were unconvinced. Democratic Alliance MP Debbie Schafer said the first obligation was to ensure that police shootings did not occur, and then to define the conditions under which force could be used. She asked Gen Geldenhuys to explain how the police were trained in the use of force "because we have heard that the training is simply not happening".

African Christian Democratic Party MP Steve Swart said there was concern about the dangerous and stressful conditions in which police operated, "but there is also concern about the powers which police enjoy and how they are abused". Mr Swart took issue with the clause that said force could be used where the suspect could commit violent crimes in the future. "How can a police officer make a decision based on whether an arrest could be made later? That is asking them to be prophetic," he said.

Committee chairman Luwellyn Landers (ANC) questioned Gen Geldenhuys’s statement that training in the use of force would be reviewed once the new section 49 had been approved by Parliament. This sounded like an admission that police training was inadequate. Gen Geldenhuys said that whenever a police officer used his or her firearm, the matter should be investigated by the Independent Police Investigating Directorate, which will soon replace the current Independent Complaints Directorate.

Source: Business Day

Cabinet Approves Changes to Lethal Force Law

The long-awaited changes to the law governing the use of lethal force have at last been approved by the Cabinet and will shortly be made public, chief government spokesman Themba Maseko said yesterday. The government announced more than a year ago its intention to revise section 49 of the Criminal Procedure Act in the middle of a welter of intemperate statements from members of the executive that police should shoot to kill and fight fire with fire.

It is understood that the substance of the provisions for when and how police may use lethal force will remain unchanged as there is a Constitutional Court ruling on this. The changes are apparently mainly the language in the Criminal Procedure Act.

At present, the law provides that lethal force may be used in defence of one's life or the lives of others but not to stop a fleeing suspect unless there is a probability that the individual has committed violent crimes or is likely to commit such crimes.

Mr Maseko said: "The bill aims to amend section 49 of the Criminal Procedure Act, that regulates the use of force when effecting the arrest of a suspect in a criminal matter, in order to bring the section in line with the judgment of the Constitutional Court in the Walters case. "The court stated, among other things, that shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances. The bill strives to provide greater legal certainty to police regarding circumstances under which force may be applied when attempting to make an arrest, and the nature of the force that may lawfully be used in the process."

Mr Maseko said the Cabinet had welcomed the crime statistics that were released last week by Police Minister Nathi Mthethwa. The crime statistics for 2009-10 showed a drop in the murder rate but also that house and business robberies had continued to rise. "The statistics highlighted the progress the country was making in the fight against crime and were a tangible indication of government's commitment to create a safe society," he said. "Government will continue to work tirelessly to ensure the safety of our citizens. Government acknowledges and welcomes the role played by communities, civil society and the business community in the fight against crime."

The collaboration between the police and the various partners in the fight against crime, Mr Maseko said, should be strengthened in order to achieve the target of reducing the crime rate by 7% a year.

Source: All Africa