Balancing self-defence, shoot to kill

Recently, the current Inspector General of Police, Lexten Kachama, was quoted in the media as having said that the police would not and shall not introduce the shoot to kill policy. He maintained that all what the police would do in cases of violent crimes was to use reasonable force to prevent crimes being committed or to effect arrests.

He stated that the police subscribe to the principle of sanctity of life. On the other hand, in the wake of the increase of crimes involving violence particularly robbery, burglary and house breaking and perhaps because of anger and understandably so, the public is of the view that the police should introduce the shoot to kill policy.

The bottom line is that the public would want an ultimate end to these violent crimes. Human rights defenders are on the other hand against the introduction of shoot to kill policy as a tool to fight violent crimes. Mr Timothy Mtambo of Centre for Human Rights and Rehabilitation (CHRR) is quoted as saying that the United Nations Basic Principles on Use of Force and Firearms by Law Enforcement Officials (1990) (Principle 9) dictates that intentional use of firearms may only be made when strictly unavoidable to protect life.

What Mtambo stated is not different from what the Inspector General of Police has been saying in cases involving use of force by the police. When executing their duties, the police are guided by the Republic of Malawi Constitution on the right to life and right to dignity, the Police Act on use of reasonable force and the Criminal Procedure & Evidence Code on how to effect arrests and using reasonable force to effect arrests.

I have no doubt that the police are also aware about the United Nations Basic Principles on Use of Force and Firearms by Law Enforcement Officials (1990) (Principle 9, he might have meant Principle 10).  The principle states that law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives.

In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. Please note the use of the phrases ‘except in self-defence’ or ‘defence of others against imminent threat of death or serious injury’.

Then, there is a rider to Principle 9, that is, Principle 10, which states  that in the circumstances provided for under Principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.

The Inspector General of Police was legally right when he said that the police would not resort to the shoot to kill policy in order to fight violent crimes which have currently bedevilled the country. He is legally right because there is no law that allows the police to shoot at suspects with the aim of killing them. He is also right because the law allows the police to use reasonable force to prevent crime and to effect arrests.

The police would not be justified to shoot a suspected criminal who is not armed or to shoot an armed suspected criminal who has surrendered himself. If the police do that, they will also have committed an offence of causing grievous bodily harm if the suspect is merely injured or manslaughter and indeed murder if the suspect dies.

There might also be lawsuits against the Government which would in turn result into loss of resources if the police were to act unlawfully in executing their duties of curbing crime. The underlying issue is that crime cannot be curbed by committing another crime. Shoot to kill would be classical incident of fighting crime with crime.

The basic rule is that if a person misjudges the degree of force permissible and uses excessive force, he is deprived of self-defence. When the police shoots at an unarmed person who although uses force to resist his arrest using bare hands that force would be unreasonable. The same may in circumstances apply to use of firearm on a criminal who is armed with a less dangerous weapon such as a panga unless he is actually attacking the police with it.  The police would themselves be criminal. A warning of the intention to shoot in that regard would suffice and if the warning is not heeded then the shooting should only aim at disabling the attacker.

Whatever angle from which one looks at recent incidents, both the call for shoot to kill and the emergence of mob justice both of which merely serve to hamper investigations and invariably justice might be a symptom of loss of judicial confidence which might eventually lead to lawlessness in the country. The public must therefore have confidence in the judicial system. A dead person would not feel the punishment; a live person would. The best way of punishing is long term imprisonment.

The author is president of the Malawi Law Society, Lilongwe Chapter