/ 4 July 2003

Controversial Act is imminent

President Thabo Mbeki is likely to sign controversial legislation this month to outlaw the use of lethal force against fleeing suspects who do not pose an immediate threat.

Minister of Justice and Constitutional Development Penuell Maduna said last week that it was almost certain that Mbeki would sign the revised Section 49 of the Criminal Procedures Act into law.

The proposed Act has been gathering dust since October 1998 after police National Commissioner Jackie Selebi and the late Steve Tshwete argued that it was vague.

They said the revised Act was unclear about when it was justifiable to shoot at an escaping suspect and that the current Act is less restrictive about when police and the public could use lethal force.

In terms of the revised Act, deadly force may only be used if it is necessary to protect the person making the arrest or anyone else from being killed or grievously harmed, or if it was apparent that this would happen if the arrest was delayed.

Chief Justice and President of the Constitutional Court Arthur Chaskalson is happy with the proposed revision and dismissed the notion that it was vague.

”What the [revised] Act will say is that you must not use lethal force to deal with someone who is attempting to escape, and who is not a threat to life. If you engage with … [armed criminals] who are making an escape then of course you can use lethal force and there is nothing to suggest that you cannot.”

Last month the Minister of Safety and Security, Charles Nqakula, urged members of Parliament’s safety and security committee to ensure that the Act is amended to avoid ambiguity, but he appears to have backed down on his request.

Maduna said Nqakula had agreed that the Act should be submitted to Mbeki to sign it into law. The police, who also initially expressed concern about the revision, have also backed down.

The South African Police Services legal advisor, Assistant Commissioner Tertius Geldenhuys, said: ”It is not for the SAPS to decide whether they are happy or unhappy with the law. We simply enforce it. In this case we requested clarity because there were some uncertainties as to how the section had to be interpreted”.

David Bruce, a researcher attached to the Centre for the Study of Violence and Reconciliation, said it was untrue that the police had not been unhappy with the amendment as their concerns were the main reason why the Act had not been implemented yet.

”Their objections are, however, not without justification because, while the amendment is clear on self-defence, it is very vague on when lethal force can be used … ,” said Bruce.

He said the 1998 amendment relied too much on a Canadian principle that stipulated that the fleeing suspects could only be shot when there was a possibility that the suspect posed a ”future danger”. This, said Bruce, could potentially confuse police.