‘Shoot to kill’ violates Constitution, say MPs

via ‘Shoot to kill’ violates Constitution, say MPs | The Herald October 13, 2015

The proposed Criminal Procedure and Evidence Amendment Bill will allow law enforcement agents to shoot to kill suspects which is in contravention of the new Constitution, parliamentarians have said. According to the new Constitution, every human being has a right to life with the exception of people convicted of murder committed in aggravating circumstances.

As such, the Parliamentary Portfolio Committee on Justice, Legal and Parliamentary Affairs said allowing law enforcements agents to use lethal force in certain specified conditions breached the Constitution. “Your committee took exception and was concerned gravely with what appears to be a reintroduction of the death penalty by the Bill,” committee chairperson Jessie Majome reported in the National Assembly last week.

“Section 48 (2) of the Constitution effectively outlaws the death penalty and provides that Parliament itself may enact a law to permit the death penalty. This means that the Constitution outlaws the death penalty.

“Madam Speaker, your committee found that Clause 15 sets out the circumstances in which force may be used to arrest people. However, it unconstitutionally goes on to permit the use of lethal force in certain specified conditions.

“This is despite the fact that Section 86 (3) of the Constitution provides that the right to life is sacrosanct. As such, no law may limit it except the execution of criminals who would have been sentenced to death in accordance with Section 48 of the Constitution. All people, even a police officer, may violate that right.”

The committee recommended Government to repeal Section 42 (2) of the Criminal Procedure and Evidence Act that allows the use of lethal force to reflect the sacrosanct status of the right to life under the Constitution. The section permits the killing of persons who resist arrest or attempt to escape arrest.

But responding to the report, Vice President Emmerson Mnangagwa, who is in charge of the Ministry of Justice, Legal and Parliamentary Affairs, said the Constitution did not abolish the death penalty.

“It has been restricted in application, that is what is there and we have no intention of tampering with the current restrictions. Personally, I am against the death penalty and that is a different issue altogether. The law is what we are articulating and not my personal views,” he said.

The committee also raised concern with Clause 12 of the Bill that it said empowered the police to restrain people who they think are drunk or insane and detain them in a police station for up to 24 hours without charging them. “Your committee feels that this particular provision has no business being in the Criminal Procedure and Evidence Amendment Act because it has nothing to do with criminality.

“Seriously, your committee found that this provision to detain people who are suspected to be drunk or whom the police suspect to be insane, unlawfully discriminates against persons with mental disabilities as it would allow for their detention in facilities that are not appropriate for their condition.

“There are also circumstances where the police are not qualified psychiatrists or psychologists and are incapable of determining a person’s state of mind and this would prejudice the people,” said the committee. VP Mnangagwa said some of the recommendations would be looked at during the committee stage where amendments may be effected.