As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The video published by the Sunday Times this weekend showing a police officer killing Khulekani Mpanza, has elicited the most shocking and bloodthirsty responses from many people calling in to radio talk shows and commenting on Twitter. Far too many South Africans seem to have no regard for the life of a (black?) person branded a “criminal”, while cheering on the police officer for taking the law into his own hands and imposing the death penalty on a person without that person having been convicted of any crime by an impartial and independent court.
It is unimaginable (I would hope) that any person would argue it is acceptable for a police officer to walk up to a politician accused of corruption and to pump a bullet into the back of his head because that politician is a “criminal” who deserves to be “taught a lesson” by the police.
It is also unimaginable (I would hope) that any person would argue that it is acceptable for a police officer to walk up to an unarmed politician suspected of having shot at somebody at a previous occasion and to pump a bullet into the back of the politician’s head because the politician is a “criminal” posing a threat to the life and safety of police officers and members of the public.
Moreover, it is also unimaginable (I hope again) that any person would argue that it is perfectly acceptable for police officer called to the scene of an armed robbery to walk up to the (now unarmed) owner of the house where the armed robbery took place and to and pump a bullet into the back of the owner’s head because the owner of the house had minutes or hours ago shot at an armed robber breaking into his house.
These things are unimaginable because we are supposed to live in a society in which police officers enforce the law, not break it; one in which police protects us, not murder us. We are supposed to live in a society in which police officers are prohibited from taking the law into their own hands by acting as an all powerful prosecutor, judge and executioner. Police officers are prohibited from taking the law into their own hands exactly to protect every one of us against police lawlessness and brutality.
Because only a court can definitively say whether any one of us is guilty of a crime (after hearing all the evidence), and because it is so easy to assume somebody is a criminal without having all the facts at hand, it is unconscionable that police officers, acting on the spur of the moment, could be empowered to decide that a person is guilty of a crime and then to execute that person for a crime which he or she may or may not have committed.
I understand that many South Africans are fearful of crime and that they believe those accused of crime should be harshly punished. What is difficult to understand is that some get so bloodthirsty and irrational that they cheer on a police officer committing cold blooded murder, not thinking for a moment that they could easily have been the victim murdered by the police.
They forget that when police officers unlawfully deploy extreme violence and in effect act as vigilantes, it brutalises us all and contributes to the atmosphere of violence and lawlessness in society. Many South Africans do not understand that it is very much in their own interest to insist that police officers obey the law and that they do not become vigilantes who arbitrarily arrogate for themselves the right to use extreme violence against people who have not been convicted of any crime.
Today such people cheer on a police officer who executes an unarmed person who might have been involved in criminal activity. Next week, when that same police officer shoots and kills their husband or wife, or their son or daughter – execution style – they will be the first to complain about the lawlessness and brutality of the police.
Because so many people do not understand that lawlessness and extra-judicial killing by the police cannot be opened and closed like a water tap, to be unleashed against alleged “criminals” but not against innocent citizens, they approve of murder as long as the murder is committed by a police officer and as long as the victim is perceived to be a “criminal”.
But as a society, we do not (and should never) trust police officers to convict and punish criminal suspects, because we know from experience that such trust is misplaced and will have tragic consequences for many innocent persons.
The fact that many people are nevertheless prepared to entrust police officers with the power to kill some citizens as they see fit, speaks to a lack of respect for the dignity and rights of fellow South Africans. (In other words, it speaks to a lack of humanity on the part of those cheering on the killings.)
I would not be surprised if this lack of respect is in many cases also linked to the race and the class of the victim murdered by the police. Would everyone cheering on the police officer who had killed Khulekani Mpanza have done so if the victim was a blond woman from Sandton driving home from her work at a law firm with a gun on her lap? I doubt it.
It is exactly because we all need protection from the potentially deadly lawless action of those who are paid to protect us that our Constitution and our law place limits on what any police officer can and cannot do.
A police officer does have the right to arrest a person suspected of committing a crime. In terms of the common law and section 49 of the Criminal Procedure Act a police officer also has the right to defend him or herself if his or her life is under immediate threat by a suspect. Where a person takes out a gun and starts shooting at a police officer, the officer is entitled to shoot back and, if this is necessary to defend himself and others, to kill the shooter. What the police officer cannot do is to shoot and kill a person who no longer poses any immediate threat to anyone.
The Constitution is often said to “protect criminals”. This is completely misguided. The Constitution protects every single person, including criminal suspects and those accused of committing crimes. In terms of section 35(3)(h) of the Constitution every accused person has the right to a fair trial, which includes the right to be presumed innocent. This means that a police officer does not have the power to decide that a criminal suspect is guilty of a crime. Neither does the police officer have the right to punish the suspect for allegedly having committed a crime.
Moreover, section 11 of the Constitution guarantees for everyone the right to life and section 12(1)(e) states that everyone has the right to freedom and security of the person, which includes the right not to be treated or punished in a cruel, inhuman or degrading way. In S v Makwanyane the Constitutional Court held that these rights (amongst others) precluded the state from imposing the death penalty – even in cases where a person is convicted of a violent crime like murder by an impartial court.
When police officers execute criminals they in effect impose the death penalty on that person and executes the sentence – something prohibited by our Constitution.
When a police officer walks up to a suspect who is no longer armed and executes that person (because he is perceived to be a “criminal”), the police officer is thus committing cold blooded murder. It matters not that the suspect may previously have fired shots at the police. Neither does it matter that the suspect may later have been convicted of armed robbery and attempted murder by an impartial court.
What matters is that the law prohibits the police from taking the law into their own hands and to terrorise the public. In some cases, this may protect persons who later will be convicted of a crime. In many other cases it will protect those of use who have not committed a crime and who could easily end up murdered by the police – unless we end the culture of lawlessness within the police service.
Those who express support for the police officer who killed Khulekani Mpanza are not only short-sighted. They are also contributing to the creation of a society in which life is cheapened and in which arbitrary state violence becomes valorised. They are playing with fire. And when one of their loved ones is murdered by a lawless police officer, it will be too late to do anything about it.BACK TO TOP