Overhaul and Align Laws on use of Force

The Mail & Guardian
By Sean Tait

On April 10, Collins Khosa was allegedly assaulted by members of the South African National Defence Force and the Johannesburg Metropolitan Police Department. Khosa died as a result of what appears to have been grossly overzealous enforcement of the Covid-19 state of national disaster regulations.

According to the court papers, he died of a blunt trauma to the head. At that point, he became the latest of many victims of excessive use of force by law enforcement officers that have punctuated  the past decades. The May 15 decision of Judge Hans Fabricius in the high court in Pretoria was scathing of the security forces’ actions, and called for guidelines on the use of force during the lockdown to be issued urgently by the ministers of police and defence.

As with the Marikana massacre eight years ago, the repetition of history is chilling as the government’s use of force again comes under scrutiny. Once again, the limitations of section 49 of the Criminal Procedure Act, and its inability to guide the appropriate use of force by law enforcement officers, is exposed. It is questionable whether mere guidelines can have any effect on their own. Ultimately, it is the law that guides. It is this law that must be clear, and hold the security forces to account.

The thuggery of far too many members of the security forces aside, a human rights-compliant approach to the use of force is notoriously difficult to implement, even for the most ethical of officers. In split seconds, law enforcement officers need to make complex judgments on the need and proportionality of the force to use.

Guidelines and proper training are essential, but if there is to be accountability and we are to rein in impunity, it is to the law and not to guidelines that the courts will turn.

There is an obligation on South Africa, emphasised in the Khosa decision, to provide consistent national legislation in line with international law and, in this case, that clearly defines the circumstances in which armed law enforcement officials are permitted to use lethal force.

Unfortunately, this is not the case. Domestic legislation dealing with the use of force by law enforcement officials is dispersed across several pieces of legislation including the South African Police Services Act, the Criminal Procedure Act, the Regulations of Gatherings Act and the Correctional Services Act.

Few of these provisions are fully aligned to international law and all are woefully inadequate in providing the needed clarity regarding how to understand whether force is necessary, urgent and proportionate to the harm it can cause, and whether everything has been done to avoid force being necessary in the first place.

The current legislative, policy and regulatory framework for the use of force by law enforcement officials in South Africa requires urgent reform. The Regulation of Gatherings Act, for example, does not comply with applicable international law insofar as it permits the use of lethal force against persons who pose a threat only to property. This is contrary to international standards, which limit the use of firearms to instances where there is a grave threat of serious injury, and only where use is strictly unavoidable, to protect life.Section 49 of the Criminal Procedure Act falls short of relevant international law. In particular, it fails to state the circumstances that would justify the use of lethal force. The current construction of section 49(2)(b) also allows the use of potentially lethal force simply because there is a suspicion of the commission of a crime involving the infliction of, or the threatened infliction of serious bodily harm at some time in the past.

The threat posed by the person sought for arrest is not required to be present at the time the potentially lethal force is used by an officer. Additionally, section 49(2) does not require the arresting officer using potentially lethal force to have regard to the risk of his or her conduct to third parties, which poses a significant risk to bystanders.

Since the various iterations of use of force law in South Africa were promulgated, there have also been several new guidelines issued, including our own (but yet to be made public) Falaram Team of Experts recommendations and the UN Human Rights Guidance on Less Lethal Weapons in Law Enforcement.

These shortcomings cannot be fixed by guidelines ordered in the Khosa decision, which, no matter how good, will end up being subordinate to bad law.

Given the piecemeal way in which South African law regulates the use of force, and the lack of alignment between those provisions and relevant international and regional law standards, it is unsurprising that the courts are critical of the use of force by law enforcement officials.

A new and dedicated law on the use of force needs to be drafted to guide the use of force in a manner consistent with our Constitution, and with international and regional law. It is only with this foundation that we can begin to build on guidelines and training that will hopefully prevent future tragedies such as that of Collins Khosa.

Sean Tait is the executive director of the African Policing Civilian Oversight Forum (APCOF)

4 August, 2020

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