fingers
Aaron Nicodemus
Although the law that allows police to shoot unarmed suspects was changed six months ago, its implementation has been delayed by a lack of commitment by the South African Police Service (SAPS) to train its officers.
Section 49 (2) of the Criminal Procedure Act sets down the circumstances under which a police officer, private citizen or security officer may use force to arrest a criminal suspect.
The section is “notorious for granting largely unlimited powers to the police to use deadly force when affecting arrests and was widely used as an instrument of oppression by the police and private citizens under apartheid,” says the Human Rights Committee (HRC).
The amendment is part of a larger effort to strike apartheid-era laws from the books. Section 49 (2) was challenged legally in 1995, after an unarmed 10-year-old boy was killed in the Northern Cape.
His mother says the boy, Kerneels Roeloff, was hunting doves in a factory. After a short chase, police shot him in the forehead when he peeked out of a factory window.
At the inquest the magistrate ruled that the shooting was justified under Section 49 (2), which allows police officers to use force to prevent a suspect from leaving the scene of a crime. In effect, the law allows a police officer to shoot a suspect, even a child, merely because the suspect ran when the officer said “stop”.
Section 49 (2) has been ruled to be unconstitutional. It was amended by Parliament and subsequently signed into law in November last year.
But while the debate over its implementation continues, the old Section 49 stands, and can still be used to shield police officers who shoot unarmed suspects from criminal prosecution or civil damages.
Scheduled for enactment on April 1, police management and legal services have consistently stalled the enactment of the amendment, citing lack of time, resources and adequate training. The date for implementation has now been set for the end of June, but human rights activists and legal experts are skeptical that the date will hold.
“Any attempt to delay it is not in the best interest of the Constitution,” says HRC national dirctor Venetia Govender. “It’s going to force police officers not to be trigger-happy, and it’s going to force them to do more thorough investigating.”
The amended Section 49 (2) mirrors Canadian law. It allows the use of force only to prevent the death of, or bocily harm to, a police officer or private citizen, and prohibits the use of deadly force merely to stop a suspect from running away.
It does not prevent a police officer from using force in making an arrest if the suspect is armed. Police officers still hold the right to defend themselves in the face of danger.
The law has had deadly consequences in the past. Documents provided by the police at the inquest into Roeloff’s death showed 1 591 people were killed by police during arrests from 1991 to 1995, and 5 328 were injured. These statistics were compiled by police and are considered by human rights organisations to be unreliable.
According to the HRC, 252 people were killed last year during arrests.
Riaz Saloojee, director of the Inedependent Complaints Directorate in the Western Cape, says there is still a mindset among police officers against the use of minimal force on suspected criminals.
“It cannot be disputed that a lot of people [who are arrested] by police are coming out killed or seriously injured,” Saloojee says. “Police cannot pass death sentences. There has to be a respect for human life and human dignity. Discretionary use of force is not sufficiently discussed within the police rank and file.”
The police fear that the amended Section 49 (2) will render them powerless in the face of criminals who are “better armed, run faster and drive faster cars”, says the HRC.
Pieter Cronje, head of the police human rights unit, says it has proved difficult but not impossible for his unit to teach officers to respect human rights and human dignity.
“There’s a lot of pressure because officers feel their hands are bound, plus a huge pressure from the community to act against crime,” he says. “People are frustrated, and some believe they can’t do their jobs properly. What we’re trying to teach them is that police are not judge and jury. It’s for the courts to decide about [a suspect’s] guilt.”