Constitutional Hill

If we start killing our own people we all lose

Politicians seldom admit to the existence of, or even embrace, complexity. Admitting that problems are complex (whether one is in government or sitting on the opposition benches) confuses people and can create a perception of indecision or even weakness (just ask Public Enterprises Minister, Barbara Hogan), so politicians often opt for easy sound bites (Julius, are you there?) and quick fix solutions.

They believe the public is stupid and will think the politicians are doing something about a problem when they announce a new initiative or an amendment to the law – even when the quick fix is going to change nothing or make things worse.

But surely voters are not stupid. (Well, some are suspiciously daft – More than one percent of voters did vote for the African Christian Democratic Party in April, but maybe they were so blinded by their hatred for homosexuals that they could not think straight.) That is why quick fix solutions will often backfire and at some point voters will turn against the politicians who have sold them a dud policy or programme or have promised them the world and delivered nothing.

Sadly, Fikile Mbalula, the Deputy Minister of Police, has not learnt this lesson. Yesterday he took time out from fighting with his Minister to tell us a lot of shocking nonsense, trying to convince us, as my grandmother would have said dat perdedrolle eintlik vye is (that horse turds are actually ripe figs).  

Firstly, defending plans to give officers greater licence to use lethal force, he said that it was unavoidable that innocent civilians will get shot in the crossfire between police and criminals. “In the course of any duty the innocent will be victimised,” Mbalula told reporters in Parliament. “In this particular situation where you are caught in combat with criminals, innocent people are going to die not deliberately but in the exchange of fire. They are going to be caught on the wrong side, not deliberately but unavoidably.”

Well, tough luck then. Those of us who are not important enough to be protected by VIP cops (at a staggering cost of R300 000 a month to us taxpayers), will just have to take our chances then. Instead of dodging criminals, we will now have to dodge both criminals and trigger happy police officers. We will also have to fork out millions to pay for all the civil claims from the family members of all the innocent civilians unlawfully executed by the police.

Second, Mbalula also said the promised amendments to section 49 of the Criminal Procedure Act would be tabled in Parliament next year, but would not amount to an overhaul of the act. In essence, lawmakers would change the act “in terms of emphasis on the word ‘necessary'” to remove ambiguity in the law, the deputy minister said. He gave no further details.

Section 49 states that if someone suspected to have committed a serious or violent crime resists arrest, the police may “use such force as may in the circumstances be reasonably necessary to overcome the resistance or prevent the person concerned from fleeing”. 

There does not seem to be any ambiguity there, but some have suggested that the Minister plans to change the law in such a way that individual police officers will not easily be held accountable when they shoot and kill civilians. Talk is that the amendment will aim to limit the necessity of individual police officers to use their discretion when they start shooting. There will be a rule that can be mechanically applied and as long as the police officer sticks to the rule everything will be fine – even if a few hundred civilians are murdered in the process.

The problem is that the Ministry cannot easily broaden the scope of section 49(2) in this manner as the exercise of a discretion is inherently required by our Constitution. In the Walters case, Kriegler J set out in admirably clear language what the Bill of Rights require from any such section, and I quote:

(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.

(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only.

(h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or 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.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.

The problem for the police (and for the Minister) seems to be that this approach requires police officers to do that rather difficult think, namely to think and to use judgement in stressful situations where the wrong decision could have fatal consequences. The ethos of a human rights culture – as the Kriegler judgment makes clear – will always require police officers to exercise a discretion, as it requires them to weigh various factors and make  a decision (in a split second) about whether it is allowed to shoot and kill a person believed to be a suspect.

No matter how the Ministry tweaks the word “necessary”, it will not be able to remove this burden from police officers without changing the Constitution. The suggestions by the Ministry that it would be able to change the wording of section 49(2) to “clarify” section 49(2) and to provide clear rules not requiring the exercise of a discretion, is just plane daft.

The way to help the Police is NOT to change section 49(2) – which will give police officers a false sense of security and will lead to more Police Officers being charged with murder or culpable homicide – but rather to train police officers. A police captain was quoted in the paper this week as saying that you cannot teach police officers how to exercise this discretion and that it is all about having the right instincts. Bollocks.

In the same way that one can train a rugby team to improve its attacking and defensive abilities, one can train police officers to help them make better judgements in cases where they find themselves in stressful and potentially dangerous situations. This kind of training should include both a theoretical and a practical component. Police officers must actually be trained to understand what the law requires (not very difficult, but obviously something that bamboozle many in the police force as well as in the Ministry). Then they must be trained to sharpen their skills to apply the law in practical situations.

This kind of training, of course, requires, human and financial resources and may take time. It is a complex issue.  So, instead of doing something that will be difficult but will really make a difference, the Ministry wants to change the law. In the end this will not help us or the police. We will all become more frightened of the police while police officers themselves will wrongly think they can now act like cowboys – until they find themselves in the dock for murder.

  • Sne

    Prof.

    You have really summed up the position nicely. It does not get clearer than this. It is amazing how many police members who are ignorant of the law that one finds out there. The reasons are obvious. Law is a very specialised field in South Africa and elsewhere. It requires very high levels of training and thinking (which you admitted the police are not very encouraged to do). The fact that there are a lot of hardly literate police officials within the police force is a major contributing factor to this problem. This illiteracy is one of the reasons there are very few convictions (especially for rape) whereby a statement is taken from the complainant in one language and has to be reduced to writing in another language (most English). This causes contradictions when the complainant and/or witnesses give oral evidence in court and raises doubts in the evidence of the relevant parties and their credibility things which are very crucial for a conviction of the accused. I wish the politicians were interested in fixing the problem not just in making us believe they are attending to it.

  • Maggs Naidu

    @ Sne.

    “The shooting of civilians by the police started at least three years ago and cannot be attributed to recent “sensational” media reports, Jenny Irish-Quobosheane, the public’s representative in the police department, said in Cape Town on Friday.”

    http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=nw20091113121154168C186703

    If Brett and Paul are not looking here’s an interesting paper.

    http://www.garymauser.net/pdf/KatesMauserHJPP.pdf

  • Mike Atkins

    Pierre,

    Your ship is slowing (aka “your slip is showing”). I feel that you have violated a couple of your own standards and values in this post.

    ” (Well, some are suspiciously daft – More than one percent of voters did vote for the African Christian Democratic Party in April, but maybe they were so blinded by their hatred for homosexuals that they could not think straight)”

    So let’s see: People who vote ACDP are stupid; ACDP supporters “hate” homosecuals – to the point of being blinded and not being able to think straight.

    Have you not done some or all of the following:

    (1) hate speech – defining ACDP supporters, Christians or anyone else who opposes the promotion of homosexuality as “stupid”. OK, you are inciting harm, and so I won’t take you to the Equality Court.

    (2) display an anti-democratic intolerance to a particular political party,

    (3) displaying an unfair intolerance towards a particular religious perspective.

    (4) sloppy, sloppy thinking. Sweeping generalisations, crude assumptions (in the statistical sense), etc etc

    There are two issues in play here. Firstly, I acknowledge that some of my fellow Christians are simply nasty on a personal level to homosexuals. This is not acceptable, but then this is not exactly confined to Christians. However, I would argue that the majority of Christians (and also supporters of the ACDP) have a more nuanced and principled position on homosexuality, and do not display animosity or “hatred” on a personal level.

    You are not admitting the possibility that people can have a principled objection to a particular lifetyle (and particularly to the promotion of that lifestyle), and yet not hate the people. It does not seem to fit your paradigm. And I suggest that your paradigm in this respect is faulty, both logically and morally (and legally, I might add).

    There are some fairly profound reasons for holding the “Christian” position on homosexuality. Of course it is difficult to hold the principles and the people in tension, but the old, “hate the sin, but love the sinner” perspective is too easily brushed aside. And, I do know tha there is more than one so-called “Christian” position, but at the risk of oversimplifying things, the Bible is fairly plain on this. Where Christians do accept homosexuality, one can admire the intention of love, but it is also not difficult to predict views about the reliability of Scripture among them that differ from the mainstream, historical positions (but this is a separate debate).

    On a more personal level, I would be surprised if the Prof had not experienced unpleasantness, and a lack of acceptance on a personal level by Christians who were too threatened by something that they did not understand. This should cause all Christians regret and contrition, but it should not cause them to abandon their view of truth. Humility is appropriate when confronting another, and this quality is all too often lacking.

    Love and truth are not incompatible, however hard it is to hold them in tension. Another helpful view is that we should not judge people, but we can and should judge truth.

  • Bryan

    I have been at divergent angles to Pierre on numerous occassions
    please forgive this cut and past of a response I did to the article in the Business Day

    Mr Dep Minister with all due respect and as a retired member of the SAPS maybe I have a little experience in law enforcement The problem is not with the current law but rather the abysmall training that members of the service recieve Do you know that almost 80% of them think that minimal force is law and not what it really is SAPS policy, do you know that most cannot even define proportional and reasonableness which are the ACTUAL paramters of the law as stated in sect 49 Sir I applaud your political determination but possibly t would be better spent in revamping the training so that when we send our young men and women into these dangerous situations we are sending them with the best training, best equipment, best support and not the current minimum standards, cheapest option malarky. Once you have imporved the training of the members then and only then will you notice the improvement in officer safety and increased and effective arrests. You do not need to change the law just teach the people on how to enforce it correctly!

    let me also add as that same ex police member Servamus et Servimus its the police’s sworn duty to protect that innocent life not disregard it as some unavoidable collateral damage, that is the defacto reason they are there! the application of force within the realms of civil law is not impossible! thats why we should carfeully select and train our police members and cherish them and make that calling a worthy career! not some second rate oh this is the only job I can get occupation! They need to start realizing that there are huge repositories of knowledge in private companies that can assist the police there are people and organizations reaching out the SAPS needs to distance themselves from their own institutional arrogance and extend towards the hands being held out to them!

  • Tatera

    “But surely voters are not stupid. (Well, some are suspiciously daft – More than one percent of voters did vote for the African Christian Democratic Party…”

    Yes, and even a bigger % for Julias Malema’s party!

  • PM

    Part of the problem is that effective policing requires that the police have the support of the public. When the police start shooting the public, I find it hard to imagine the public supporting the police. Of course, it doesn’t seem as if the public supports the police much now–indeed, the “new” SAPS doens’t seem all that different from the old SAPS.

  • sirjay jonson

    I would like to make a suggestion that the change to section 49 of the Criminal Procedure Act being punted by the Ministry of Force is actually not just planning on removing the term ‘necessary’. This spin quite possibly could be a red herring within all their talk of intent. What I think they will try to change is the financial liability aspect of police action related to the taking of innocent lives, or damaging citizens sufficiently to create expensive medical costs, both producing significant loss of employment income for a family. Its been admitted and has been discussed a great deal recently about the cost of litigation decisions against the Ministry for police failures and abuse.

    Example: A young wife with two children loses her professional husband already making 1/4 million a year and advancing rapidly. What’s’ 40 lost employable years with all the factors like inflation, future monetary growth, and expectant professional advancement worth. There’s nothing like a nasty lawsuit to dampen the mood, right? Without such a change in s49, Government has a nasty and likely inevitable financial nightmare on their hands.

    Is it much more difficult to add a new clause, than to change or eliminate a word in the Constitution? Doesn’t either require the same level of support?

    May the Force be with you… safely.

  • Pierre De Vos

    Mike Atkins, thanks for your response. I will try and answer as honestly as possible.

    (1) There is no hate speech. Hate speech requires incitement to cause harm to a group based on their race, sex, gender etc or intention to hurt based on race, sex, gender etc. I had no such intention and there was no incitement to harm or hurt anyone – merely a statement of my personal opinion as protected by the freedom of expression clause.

    (2) Criticising – even vehemently – a political party is not anti-democratic. In fact that is what democracy is all about. How else can we argue and debate and contest ideas. If I think party X stands for thinks I find abhorent, I surely have a democratic right – no duty! – to say so. That is what democracy is about.

    (3) I took a dig at the ACDP, not all Christians so no, I disagree. In any case the Christian religion is the majority religion in SA and is all pervasive. Many Christians believe homosexuality is a sin and that a person who does not suppress their love and emotional and sexual attraction for a member of the same sex acts in an abominable manner. As a gay man I think this is inhumane and even perverse (like supporting the death penalty, the public flogging of adulterers or stealing taxpayers money). This is my view. We can agree to disagree and we are both allowed to express our views because we live in a democracy. A religious group cannot claim special rights vis-a-vis the rest of us so that they are exempt from criticism. That is in violation of the right to freedom of religion and conscience and profoundly ant-democratic. You can say same-sex love is bad. I can say those who believe this are bigots. Ce-la-vie.

    (4) I am unclear about this point.

    It seems to me at the heart of your complaint are two faulty assumptions. First, that criticism of a political party equates criticism of all Christians and second, that Christians have a special right that protects them from criticism and ridicule. The latter is not to be squared with democracy and a system of human rights.

  • sirjay jonson

    Prof: I cannot imagine that you are free on a Friday evg to respond as you have to Mike above. And I, regardless, applaud your defense of human gay rights. Such a pity more hetersexual men like myself do not, and I’m speaking (writing) in general, here.

    However, its important not to be too sensitive on the issue. My call on responses to your comments which reflect your understandably gay bias, is that really, you have nothing to defend. Like the turks who prowl so many blogs with their hatred and juvenile racisim, such comments questioning belliefs of yours, which may be influenced by the experience of being gay, but pertaining to others’ gay-phopia, should well be ignored. At least, that’s my approach. And Mike, your comments were absolutely reasonable.

    We need you Prof to be ‘right on’ with the law, with the Constitution, with the truth of the act, the clause, the sub clause. It may require that you renounce personal issues. My apologies, no offense intented.

  • Brett Nortje

    Gun bans make for strange bedfellows. My ouma het altyd gese se my wie jou vriende is dan se ek jou wie jy is! And, you gun prohibitionists want to disarm us and give the SAPS and Metro PDs a monopoly on gun ownership?

    Maggs, you are showing dangerous tendencies that will soon see you kicked out of the gun-prohibitionist fold.

    Why did you not post the story? What a bunch of dumbasses….

    Proud ACDP supporter.

    ‘We’ve been shooting civilians for years’

    2009-11-13 13:02

    Cape Town – The shooting of civilians by the police started at least three
    years ago and cannot be attributed to recent “sensational” media reports,
    the secretary of police said in Cape Town on Friday.

    Jenny Irish-Quobosheane, the public’s representative in the police
    department, told journalists in Parliament the ministry had noticed an
    increased number of shootings of civilians by police officers in the past
    three years.

    “Those shooting haven’t just started in last couple of months,” she said.

    “Over the last three years the ministry has noticed an increased number of
    shootings of civilians by police officers. So I don’t think you can
    attribute those to what is being printed quite sensationally in the media.”

    Reports of civilians being shot dead increased sharply since government
    ministers told the police they should take a tougher line on criminals. In a
    recent case, a police constable was arrested for allegedly shooting dead a
    three-year-old Atlegang Aphane in Midrand. The constable had apparently
    mistaken a metal pipe the child was holding for a gun.

    In a speech on Thursday, Deputy Police Minister Fikile Mbalula said it was
    unavoidable for civilians to die in the crossfire between police and
    criminals.

    “In the course of any duty the innocent will be victimised,” Mbalula told
    reporters in Parliament.

    “In this particular situation where you are caught in combat with criminals,
    innocent people are going to die not deliberately, but in the exchange of
    fire. They are going to be caught on the wrong side, not deliberately, but
    unavoidably.

    “Yes. Shoot the bastards. Hard-nut to crack, incorrigible criminals.”

    – SAPA

  • sirjay jonson

    Brett: its all absurd… “We’ve been killing civiliams long before these new police directives, it’s all ok…. collateral damage regardless, we’re protecting you from crime”, or words to that effect, etc, and all according to our trusted authorities… absurd. Just wait untill the international community gets this… absurd, absurd, absurd… madness really.

    And SA folks think Huntley’s application will be overturned.

    see: http://politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=150911&sn=Detail

    … says it all. We are here now… what next?

  • http://charlesscheepers.wordpress.com/ Charles Scheepers

    But surely voters are not stupid….

    65.9% for the ANC on their new set of empty promises and this after several previous sets of unfulfilled promises. Come on, in spite of our vast potential, we remain a pretty stupid nation. We allow these types into office time and time again. Are we really expecting anything different?

  • AN Leigh

    Hi Mike – et al, sorry I have picked this up so late!

    At the risk of taking us off the subject (btw Prof you’r spot on with it) I do wish to register a sharp disagreement with your cavalier assumption that most (if not all) Christians are instinctually against the acceptance of the Gay issue. Hand in glove with this is the ‘appropriation’ of truth to your cause and likewise the uncritical expropriation of the Bible as ‘automatically’ sustaining all of this.

    There is a significant number of well read and trained theologians and Christians who do not support or agree with your uncritical assumptions and have stood up to the viciforous rather rightwing franchise that casts all other opinions into hell

  • Herman Lategan

    Oh for God’s sake, Mike Atkins. Just go to hell. You boring twat.

  • Maggs Naidu

    Pierre De Vos says:
    November 13, 2009 at 17:20 pm

    “(3) I took a dig at the ACDP, not all Christians so no, I disagree. In any case the Christian religion is the majority religion in SA and is all pervasive. Many Christians believe homosexuality is a sin and that a person who does not suppress their love and emotional and sexual attraction for a member of the same sex acts in an abominable manner. As a gay man I think this is inhumane and even perverse (like supporting the death penalty, the public flogging of adulterers or stealing taxpayers money). This is my view. We can agree to disagree and we are both allowed to express our views because we live in a democracy. A religious group cannot claim special rights vis-a-vis the rest of us so that they are exempt from criticism. That is in violation of the right to freedom of religion and conscience and profoundly ant-democratic. You can say same-sex love is bad. I can say those who believe this are bigots. Ce-la-vie.”

    Eish!

    Somewhere in your blogs, some months back, a comment was posted on Zackie Achmat’s rather shocking views towards heterosexuality. If that is true, then it’s as bad as those who think that raping lesbians is a way to “correcting” there sexuality.

    george says:September 23, 2009 at 2:53 am –
    http://constitutionallyspeaking.co.za/no-place-for-judge-who-has-contempt-for-gay-men-lesbians-and-hiv-positive-south-africans-zackie-achmat/

    The point is that there are diverse views towards sexuality across the board – in my view it cannot be correct to correlate that with religion.

    I dunno much about ACDP, but I cannot accept that all their members and supporters are such bigots – nor can I accept that all gay people hold the same views as Achmat.

    Indeed there are extremes which need to be curtailed, but it cannot be much good generally to demonise people by some obtuse association.

  • Anonymouse

    My earlier responses to postings in this regard refer. I must again make the point that the current s 49 does not reflect what the CC had said in the Walters judgment as quoted above. Only the first part of para (h) above is reflected in the current s 49. The second part of para (h) reads, I quote: “…or 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.”

    What is currently in s 49 is that the “crime involving the infliction or threatened infliction of serious bodily harm” must either be “in progress” or the fleeing suspect must on reasonable grounds be suspected (“believed”) to pose a future threat of violence. This qualification does not appear in the Walters judgment and, so it is submitted, if s 49 is changed verbatim to read like para (h) above, the amendment will pass muster constitutional scrutiny. It will broaden the powers of the police in arrest situations so that they are not limited to the common law defences of private defence or putative private defence; but, at the same time, the powers of the police will not be broadened to the extent that the police are authorized to shoot and kill someone suspected of having committed a petty (or even grand) theft of a mealie (or a motorvehicle), against which the Walters judgment and subsequent amendment of s 49 was aimed.

    So, I think there is room for a broadening amendment of the current s 49, but that it can still be balanced so that we do not revert back to a police state, which we were pre-1994. The current Constitution is all about balance; and, where violent offenders are on reasonable grounds suspected of having committed serious human rights infringements (like murder, rape, robbery, assault with intent to do grievious bodily harm – or an attempt to commit any such crime), it will certainly not be unconstitutional if the police are allowed to shoot and kill where the syspect is fleeing and “there are no other reasonable means of carrying out the arrest, whether at that time or later”.

  • Mikhail Dworkin Fassbinder

    @ Pierre insists.

    “But surely voters are not stupid.”

    Of course voters are not stupid.

    Yes, some would argue that any electorate that continued to vote in larger numbers for a party whose leader announced that a virus does not cause a syndrome is, indeed, and not to mince words, “stupid.”

    But I would reject any such argument.

  • Anonymouse

    The following reflects my sentiments exactly:

    “Eyewitness news online 2009/11/16

    Section 49 amendments exaggerated – Radebe

    Justice Minister Jeff Radebe says the expected changes to Section 49 of the Criminal Procedures Act are being exaggerated.

    The amendments are aimed at giving police a stronger hand when dealing with armed criminals.

    Radebe, who chairs the justice, crime prevention and security cluster, briefed the media at Parliament on Friday.

    He said the changes were aimed at giving effect to a 2002 Constitutional Court judgment.

    The ruling sets out clear guidelines on when police are entitled to open fire on a suspect.

    Radebe said state law advisors would look at proposed amendments before it was published.

    “I think that will be the real yardstick and guideline that will indicate to the police how to behave under trying circumstances,” he said.

    Radebe insisted the proposed law change was not a wholesale instruction to shoot.

    http://www.eyewitnessnews.co.za/articleprog.aspx?id=26274

  • Maggs Naidu

    @Dworky

    “Yes, some would argue that any electorate that continued to vote in larger numbers for a party whose leader announced that a virus does not cause a syndrome is, indeed, and not to mince words, ‘stupid.'”.

    Did you mean former leader, one who was voted out of organisational office then recalled from Government?

    *Note to self* Dworky must have a point – it has to be better to jump ship than to take corrective organisational action.

  • tekanyo ngwako

    i think our government is making the same mistake that the aparthied government did making laws that are oppresive to the civilians, their new amendment is vague and embarrasing, i dnt knw wat are thy tryn 2 prove

  • bill g.

    I am tired of living there are no jobs we need to start banding together and kick some as_ against the esablishment and change the policies ourselves to benifit the poor so we can get a leg up to stand up f__k the laws the dont benifit us any more we need to start kicking some as_ NOW band together the millions of us they cant do anyrhing to us if we out number them we will prevail.