Crime experts have differed widely on proposed amendments to “shoot-to-kill” legislation, published for comment this week, with some seeing the potential changes creating much-needed clarity for police and others branding them unconstitutional.
A major change in the draft of the Criminal Procedure Amendment Bill is the wording of the two provisions allowing police to shoot suspects with the intention of killing. Police would be allowed to use deadly force when the “suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm, and there are no other reasonable means of carrying out the arrest, whether at that time or later”.
The existing provision focuses on whether a suspect will cause harm in the future.
The Bill also removes the word “immediately” from the clause that currently allows lethal force when it is needed “for the purposes of protecting the arrester or any other person from imminent or future death or serious bodily harm”.
Gareth Newham, of the Institute for Security Studies, viewed the amendments as a change for the better. “The current legislation has been criticised for not providing enough guidance to police. The new legislation will make it clearer for police to understand,” he said.
However, Newham emphasised that “the main things going forward are proper training of police, and accountability — if they do shoot and kill people, there needs to be a proper investigation”.
David Bruce, senior researcher at the Centre for the Study of Violence and Reconciliation, differed strongly, describing the amendments as “inadequate”.
“There is an issue with the phrase ‘reasonable grounds’,” he said. “Is that a good enough standard to evaluate whether or not you are going to kill someone?”
Bruce cited the example of Olga Kekana, a civilian mistakenly killed by police in a moving vehicle near Pretoria late last year. “This case shows that there is massive room for error and for innocent people to be killed. That issue should be mentioned in the legislation.”
Pierre de Vos, professor of constitutional law at the University of Cape Town, was even more critical, arguing that the Bill in its current form violates a Constitutional Court judgment. “In the court judgment on the use of lethal force in 1998, Judge Johann Kriegler ruled that you always need to use the least amount of force necessary to make an arrest,” De Vos said.
“You must take into account a number of factors and what is reasonable in all circumstances.”
The new law, he said, violates this by removing the requirement of an “immediate” threat of death or serious bodily harm for the use of lethal force. “Even if the person making the arrest is not immediately threatened, he can shoot,” said De Vos. “This makes it easier for the police to shoot now and ask questions later.”
De Vos was deeply concerned about police being able to shoot someone who they think might have committed a violent offence in the past.
He said: “Imagine you are driving in Johannesburg late at night and the police think you might be an armed robbery suspect. If they pull up next to you in an unmarked car and start waving their guns at you, and you speed away, they can shoot and kill you.”
But Barbara Holtmann, safety and security expert at the Council for Scientific and Industrial Research, said that the proposed changes in the legislation are no more than semantic differences in the bigger picture.
“The significance is that police have always felt underprotected and vulnerable, and they are,” she said.
According to South African police records 109 police officers were killed in the course of duty between April 2008 and April 2009.
“I don’t think the amendment is that dramatic — the real issue is why this is so important to our police? Somewhere a balance needs to be struck so that everybody’s constitutional rights are respected, both those of the public and the police,” said Holtmann.