Prof Bheki Mngomezulu

Chapter 2 of the Constitution of the Republic of South Africa focuses on human rights. This chapter has been in the limelight recently in the case involving the exclusion of former president Jacob Zuma from the list of candidates to contest the May 29 general election.

Section 7(1) states that the Bill of Rights “enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality, and freedom”. Implicit in this section is that everyone is entitled to having his or her rights protected.

Among the many rights contemplated in this part of the Constitution is the right to life. Section 11 clearly states that “everyone has the right to life”.

If this is the case, it goes without saying that no life is more important than the other. In the same vein, no one is entitled to take away another person’s life.

Against this backdrop, the incident which happened in Mariannhill, in KwaZulu-Natal, bears relevance to the synopsis presented above. In this incident, nine suspects were gunned down by members of the SAPS.

After this incident, there were mixed reactions from different sections of the community. Many of the residents of Desai applauded the SAPS for eliminating the people they said had been terrorising them.

Others (including some family relatives) cried foul. They regretted the action by the SAPS, arguing that they should have arrested the suspects instead of gunning them down. Those who advanced this argument tacitly invoked the Constitution (especially the Bill of Rights) by stating that the suspects had rights. Included in those rights was the right to life.

On their part, SAPS members argued that their decision to open fire on the suspects was not premeditated. Instead, it was a prompt response to the prevailing situation created by the suspects.

SAPS members defended their action in three ways. Firstly, they argued that the suspects opened fire first and the SAPS had to retaliate in self-defence. Secondly, in their view, the suspects were wanted for other criminal activities. As such, they had to be dealt with before they could escape like two of them did. Thirdly, many police officers have lost their lives at the hands of suspects. These SAPS members did not want to become another statistic.

Each of the arguments advanced above is plausible. The question which begs for attention is: “Whose rights should be protected by the police when dealing with suspects?”

In addressing this question, we must pose another question: “What is the job of a police officer in South Africa?”

The duties of police officers are wide. Among other things, their job is to prevent, investigate, and combat crime; maintain public order; protect and secure the inhabitants of South Africa and their property; and uphold and enforce the law.

Now, if this is the case, what informs the police’s decision on which life to protect and which one to take away?

The answer to this question is simple. As the protectors of society, the police have the responsibility to protect the lives of the citizenry. While it is true that suspects are also citizens, they unwittingly forfeit their right to life in two ways. Firstly, by terrorising other people and threatening their lives. Secondly, by waging war against the police who are saddled with the responsibility to protect members of society.

In terms of the Constitution, everyone deserves to live. However, the moment one decides to take other people’s lives, the right to life of that person is forfeited. The narrative changes to whether you kill or get killed.

This happens in instances where communities defend themselves against the would-be killers. But because the responsibility to protect applies to the police, communities are discouraged from taking the law into their own hands. Instead, they are advised to inform the police.

The challenge is that complying with this rule is sometimes difficult. One cannot call the police when already faced with a life-and-death situation. In that case, the right to life is replaced by the struggle for survival.

In cases where it is the police who face suspects, the law dictates that they try to calm the situation and reason with the suspects to avoid a bloodbath or any loss of life. If the suspects comply, lives are saved. However, in instances where the suspects open fire, SAPS members have two options: to run for cover and leave communities vulnerable or return fire which results in the loss of life.

These scenarios lead to one conclusion – each incident is different. Some incidents make it possible to save lives while others rule out this possibility. In the case of the Mariannhill incident, establishing who was right and who was wrong, or finding out if the lives of the nine suspects could have been saved depends on who one talks to.

SAPS members argue that they had no choice because their lives were already in danger. Relatives of the deceased suspects argue that the suspects should have been arrested and their lives spared.

In a country where murders are a daily occurrence, and where the police are killed by suspects, incidents like this one are unavoidable. Therefore, any analysis of this fatal shooting incident should be based on context, not emotions. Objectivity must supersede partisanship.

*Prof Mngomezulu is Director of the Centre for the Advancement of Non-Racialism and Democracy at the Nelson Mandela University

**The views expressed do not necessarily reflect the views of Independent Media or IOL

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Criminals ‘forfeit right to life’ when waging war on police