The Following is from the Jackson Rogers’ Swazi Bill of Rights blogsite
Wednesday, February 9, 2011
A Licence to Kill?
It was shocking to read about another deadly arrest by the police in Swaziland (HERE). Anecdotally, the police in Swaziland have become a lot more aggressive lately.
‘Deadly force’ (aka lethal force) is legal in terms of international human rights law under a number of conditions. The two basic conditions are: (1) the use of force must be undertaken in response to an ‘imminent’ threat to the life of the officer or others in the vicinity; and (2) there must be no other options available to the officer. (See, for example, 'Use of Force and Firearms' in the UN's Human Rights & Law Enforcement: A Manual on Human Rights Training for the Police, pp 23-26, HERE.)
The 2005 Constitution does not seem to enshrine these principles. In terms of s 15 ‘protection of right to life’, deadly force that is “reasonably justifiable and proportionate in the circumstances of the case” may be used:
“(a) for the defence of any person from violence or for the defence of property;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) for the purposes of suppressing a riot, insurrection or mutiny; or
(d) in order to prevent the commission by that person of a serious criminal defence.”
At first blush, these circumstances are so far removed from good police practice as to be nearly laughable. Deadly force for the protection of property, for example, is completely unacceptable.
But it still may be possible for the courts and for potential claimants to read international good practice into the section through the proviso that the force must be “reasonably justifiable and proportionate in the circumstances of the case.” That is to say, if the police use deadly force for, say, the suppression of a riot (a clear violation of international law), such use could be found not to be "justifiable and proportionate" if the riot (1) was not an imminent threat to human life; or (2) there were options other than deadly force available to the officer. (Another problem with ss 15(4) if that it does not limit the use of force to ‘law enforcement officers’, so that deadly force could be used by a civilian in all these contexts, which violates international human rights practice. This, too, could be read in by a court.) The use of deadly force would then be unconstitutional.
But still the section on deadly force in the Swazi constitution is most unfortunate. Its tendency is to make police believe they have a licence to kill (HERE). This is confirmed by the apparent impunity of law enforcement officials. For that alone, the section should be repealed and replaced with something more in line with international good practice.