CONSTITUTION WATCH 11/2016
[7th July 2016]
The Role of the Police and Army and the Use of Force in the Suppression of Riots
Section 59 of the Constitution guarantees everyone the right to demonstrate and to present petitions, but says “these rights must be exercised peacefully”. So long as the demonstrations are peaceful, therefore, demonstrators are entitled to express their views publicly and the Police must respect this. When demonstrations turn violent, however, they may have to be dispersed forcibly.
In this Constitution Watch we shall look at the degree of force that may be used to disperse them and who – Police or Army – may exercise that force. We start with the Constitution, which sets out the functions of the Police and Army, and imposes limits on the degree of force they may use.
The Constitutional Role of the Police and Army in Maintaining Public Order
Police: The functions of the Police are set out in section 219 of the Constitution and include:
preserving the internal security of Zimbabwe,
protecting and securing the lives and property of the people, and
maintaining law and order.
Army: According to section 212 of the Constitution, the function of the Defence Forces [of which the Army forms a part] is to protect Zimbabwe and its people, security and territorial integrity. The Defence Forces may be deployed in support of the Police in the maintenance of public order [section 213(2)].
Hence primary responsibility for maintaining order is vested in the Police, though the Army may be deployed to support them.
Constitutional Limits to Their Powers
The Constitution does not give police officers and army personnel free reign in carrying out this responsibility: they must show the utmost respect for “the fundamental rights and freedoms and the democratic values and principles enshrined in [the] Constitution” [section 206(3)(a) of the Constitution].
Among the fundamental rights and freedoms that must be respected by the Police and Army are:
the right to life – which is inviolable and cannot be taken away except through the imposition of the death sentence by a court of law [sections 48 and 86(3)(a) of the Constitution],
the right to human dignity – which is likewise inviolable [sections 51 and 86(3)(b) of the Constitution],
the right to personal liberty, including the right not to be detained without trial [section 49 of the Constitution], and
the right to personal security, including freedom from all forms of violence from public or private sources [section 52 of the Constitution].
The last two rights can be limited by law only to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on human dignity and freedom, taking into account such factors as the interests of public safety and public order [section 86(2) of the Constitution].
This brings us to the questions:
1. What laws are there on the country’s statute book that authorise the Police and Army to use force in upholding public safety and public order?
2. Are those laws constitutional?
1. Statutes Authorising the Use of Force
The Public Order and Security Act [POSA] has surprisingly little to say about the suppression of riots. Section 29 provides that if a participant in a gathering kills or seriously injures anyone else or destroys or seriously damages any valuable property, or shows a clear intention of doing so, police officers may use force to prevent the person doing so if other methods of prevention are found to be ineffective or inappropriate. The force may extend to the use of firearms and other weapons, but should be no greater than is necessary to prevent the killing, injury, destruction or damage, and must be “moderated and … proportionate to the circumstances of the case and the object to be attained.”
When it comes to arresting rioters, the recently-amended section 42 of the Criminal Procedure and Evidence Act [CP&E Act] gives police officers power to use “such force as may be reasonably justifiable and proportionate in the circumstances” to overcome resistance or to prevent the rioters from escaping arrest. The use of force is only justifiable, however, if the police officers believe on reasonable grounds that:
the force is needed to protect the police officers from death or grievous bodily harm, or
there is a substantial risk that the rioters will cause death or grievous bodily harm if their arrest is delayed, or
the riot is in progress and involves the use of life-threatening violence or a strong likelihood of causing grievous bodily harm.
These conditions are very stringent indeed and they apply to the use of any force, not just the use of firearms.
Under section 37 of POSA, army personnel who assist the Police in maintaining order have the same powers, functions and authority as police officers. Hence they are subject to the same limitations on the use of force in suppressing riots as apply to police officers.
2. Constitutionality of use of force
Use of force generally
The Constitution does not deal specifically with the use of force by police officers and army personnel when maintaining law and order, but as already noted it requires them to show the utmost respect for fundamental human rights and freedoms. This does not mean the Constitution forbids the use of force altogether: some degree of force may need to be used to dispel riots and restore order, and the constitution-makers must have been aware of this. Hence the statutes we have mentioned, in so far as they allow the use of moderated, proportional and reasonably justifiable force, are probably constitutional – but they must be construed strictly to take into account the need for police officers and army personnel to show the utmost respect for human rights.
Use of firearms
When it comes to the use of firearms the statutes are constitutional only so long as they are interpreted as not allowing police and security force personnel to kill rioters or wrongdoers because, as pointed out above, the constitutional right to life is inviolable and cannot be taken away by any law. The statutes are ambiguous, however. Although section 29 of POSA authorises the use of firearms it does not mention using them to kill people. Section 42 of the CP&E Act states that the use of “lethal force” [i.e. force that is likely to cause death or serious bodily injury] can be used only in certain circumstances. Neither statute expressly authorises the police or security force personnel to kill people
The ambiguity in the statutes leaves the Police and Army unclear about using firearms to shoot to kill. This is illustrated by the ZRP Human Rights Pocketbook, which advises police officers that the golden rules when using firearms are: first to fire warning shots, then if that fails to shoot to injure, disable or maim, and only if that fails to shoot to kill “if necessary or justifiable in the circumstances”. This amounts to an authorisation to shoot to kill in certain circumstances, whereas any killing in any circumstances is unconstitutional and therefore illegal.
Also almost any use of firearms to subdue a riot is likely to kill someone or cause them serious injury. Even if police officers or army personnel fire warning shots into the air they may cause injury or death.
The statutes must be amended to exclude any ambiguity so that both security forces and the public are aware of their rights and responsibilities.
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