Opinion: Don’t amend, prosecute vigorously


If government and the police really want to engender public respect and ensure that lives are not unnecessarily placed in danger, then they should look at implementing existing laws and prosecuting them vigorously.




The heat surrounding the proposed amendments to the notorious Section 49 of the Criminal Procedures Act and the reintroduction of a military style ranking system into the SA Police Service, beggars the question: “Is this just dangerous window dressing?”


Should the section be amended to make it easier for a policeman to shoot an armed suspect, or rather, a person whom he or she suspects of being an armed suspect succeeds, then the country will face a serious constitutional crisis as it clearly states that “Everyone has the right to life.”



Hammers and nails


If the use of deadly force becomes too easy, then it becomes the major tool to apprehend almost anyone for any reason, because, as the old saying goes: “If your only tool is a hammer, then all your problems look like nails.”


Almost any honest and conscientious policeman will tell you that if they can, they will avoid the use of deadly force. Simply put, using force against a suspect invites retaliation and with unpredictable results that can easily put a policeman’s life in serious danger within an instant.


There is also an old dictum that “no policeman has ever gone to jail for not shooting,” – and no policeman ever wants to go to jail.


Public respect for the police has been on the wane for sometime, and that is largely of the police’s own doing as an organization. There are many individual police officials who are performing heroically on a daily basis to ensure that crime is fought justly, but they are being let down by their own senior management and the justice system.


By this, I mean, when was the last time the SAPS senior management or their supposed partners, not rivals, the National Prosecuting Authority, actually pursued and managed to get any suspect convicted on such charges as failing to comply with a police official’s lawful instructions, failing to provide full name and address, for interfering with a police official in the conduct of his lawful duties and for arresting arrest?



Deletion dereliction


Senior police officers often delete such charges from a docket for the simple reason that it tidies up the paper work, and if the prosecutors do receive dockets with these as charges, the simply ignore them and then focus on the main criminal charges such as theft, etc.


For instance if a suspect is arrested on a charge of car theft and then resists the arrest and that is also laid in the docket, the latter charge is nul prosecuted, in other words dropped altogether. What is the point of having such charges on the statute books if the prosecutors do not pursue them?


Because of this situation, the feeling, at least among police officials, is the public believe it is quite alright to disrupt a police action or lawful arrest as there is no sanction that is enforced. This then places innocent members of the public and the police officials in potentially extra danger as then, as often is the case, the officials have to resort to force, which often means deadly force and the consequences thereof.


In other countries, especially Britain, Hong Kong, the US and Canada, the seemingly simple charge of failing to obey a police official’s instructions is often the primary charge and then the secondary charge of theft or whatever is then prosecuted.



Simple logic


The logic is simple if the state (or “the people” as used in parts of the US) cannot ensure that its direct representatives namely the police are not obeyed then the state is a joke and cannot be taken seriously. This leads to a situation of anarchy, which is just what the state is supposed to prevent.


Deadly force is a last resort and should only be used in terms of self-defense or in defense of another and not as a means to punish anyone. It is not the police’s role to punish, that is the role of the courts and the prosecution must prosecute such instances properly and not be allowed to just drop the charges. 


The sanctions such a fines and prison sentences should also be properly applied. If they are, then the argument goes, the need to use deadly force in many instances would diminish and so would the liability and resulting costs to the state and the taxpayer.



Allow firearm pointing


If the senior management really do want to make it easier for police to draw their firearms preemptively then they should look at changing the Firearms Control Act and relevant sections of the CPA that deal with “pointing a firearm” and this should be dropped as a charge that can be leveled at police officials.


The reasoning is that there are many instances of potentially such a serious nature that there is good reason for a police official to draw and point his or her firearm. These include stopping and searching vehicles late at night, searching premises that are located in known dangerous locations, searching for known or suspected armed suspects in fields or buildings.


Often suspects lay counter charges against police officials for a variety of reasons and one of the favourite is that of pointing a firearm as any defence lawyer will tell you the police are not exempt from this charge.


The reasoning for a police official to point a firearm is this: it allows him or her to adopt a ready stance in times of potential danger without breaking a law; it reinforces the message to a potentially dangerous suspect that to resist arrest is pointless and that the matter of is an extremely serious nature.


The risk of a negligent discharge (inadvertently shooting someone because of carelessness) is always a risk and can be prosecuted. However, police firearm training does emphasise safety procedures heavily and so I believe this risk will be mitigated to a large degree.



John Constable is someone who has an appreciation for fine policing.