Use of force and firearms
AIM:
To supplement participants' working knowledge on the use of force and firearms
SCOPE:
Legal Frame Work
Use Of Force
Use Of Fire Arms
Disappearance
Extrajudicial Execution
Accountability
Summary
Conclusion
OBJECTIVES
By the end of this session, participants should be able to:
Outline the legal Framework for the use of Force and Firearms.
State circumstances when Law enforcement officials may use force and Firearms.
Explain the procedure before and after the use of Firearms.
INTRODUCTION
The need to strictly control the actions of the police in this area is inherent in the
delicate and difficult nature of the task of policing.
In carrying out the duties of policing, law enforcement officials have the obligation of
protecting essential human rights such as the right to life, liberty and security of
persons.
However, simultaneously, it becomes necessary to balance this obligation with the
need to maintain law and order.
Whilst performing these duties, there lies the additional responsibility of protecting
the lives of law enforcement officials.
NB. In deciding to use force or firearms, the police must bear the principles of
necessity, proportionality and legality in mind.
LEGAL FRAMEWORK
Law enforcements officials shall at all times fulfill the duty imposed upon them by law,
by serving community and by protecting all persons against illegal acts, consistent with
the high degree of responsibility required by their profession.
However law enforcement officials have conflicting powers with regard to human rights.
While their principal role is to promote and protect human rights and freedom, at the
same time they are potential violators of the very rights they are called upon to maintain
and uphold.
Abuse and misuse often occurs in all parts of the world. Unlawful and arbitrary arrest
and detention, fabrication of evidence, excessive use of force, ill-treatment of detainees
and torture are some of the many known contemporary examples of illegal and
unacceptable law enforcement practices.
The use of force and firearms will only have legal sanction if it is strictly necessary for
law enforcement and maintaining Public Order. Officers must bear in mind the
International Covenant of Civil Political Rights (ICCPR) which states that:-
Every human being has the inherent right to life. (ICCPR Art. 6.1)
No one shall be arbitrarily deprived of his/her life. (ICCPR Art. 6.1)
No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment. (ICCPR Art. 7)
DISAPPEARANCE
Guard against disappearance. Disappearance is a situation whereby people who
have been taken into custody by agents of the state, yet whose whereabouts and
their fate are concealed, and whose custody is denied.
EXTRAJUDICIAL EXECUTION
Extrajudicial executions are unlawful and deliberate killings, carried out by order
of a government or with its complicity or acquiescence. These are legally
unacceptable.
PROPORTIONALITY
The use of force must be proportional and justifiable to the offence being
committed
The use of use must be proportional and justifiable to the objective that the police
officer hopes to achieve.
The use of firearms to only be adopted in extreme and threatening
circumstances.
Peaceful means of resolving the dispute should have been attempted and failed.
Law enforcement officials must guard against the use of excessive force,
restraint is to be exercised.
USE OF FORCE
Force and Firearms Principles.
Force to be used only when strictly necessary.
Use of force to be always proportional to lawful objectives.
Non-violent means to be attempted first.
Force is to be used only for lawful law enforcement purposes.
There are no exceptions or excuses for unlawful use of force.
USE OF FIREARMS
Permissible Circumstances as per use of Force and Firearms.
Self-defense or defence of others against imminent threat of death or serious
injury
To prevent a particularly serious crime that involves a grave threat to life
To arrest or prevent the escape of a person posing such a threat and who is
resisting efforts to stop the threat
Only when less extreme means are insufficient to achieve the objective.
Intentional lethal use of force and firearms shall be permitted only when strictly
unavoidable in order to protect human life.
Regarding the use of force and firearms in policing persons in custody, the same
principles apply and should only be used in the following situations;
o Only when the safety and security of the institution are in danger;
o In self-defence or in defence of others;
o To prevent the escape of the detainee in custody who is presenting the
threat.
PROCEDURE BEFORE USING FIREARMS:
Officer to identify him/herself as a police officer.
Officer to give a clear warning the intent to use firearm.
Officer to allow adequate time for warning to be obeyed.
EXCEPTIONAL CASES
The above procedure shall not be required:
If the delay would result in death or serious injury to the police officer or others.
It is clearly pointless or inappropriate in the circumstances to do so. (Principle
No. 10 of Use of Force and Firearms)
AFTER THE USE OF FIREARMS
Medical aid
Notify relatives
Allow for investigation
Report writing
ACCOUNTABILITY
Report and review of superior
Superior shall be held responsible
Refuse unlawful orders - immunity
Following unlawful orders does not excuse for responsibility
OBEDIENCE TO SUPERIOR ORDERS
The use of force or firearms by police officials in response to an order from a superior
officer would, in the past constitute a defence for the police officer who auctioned the
order.
However, in terms of the principles on the effective prevention and investigation of
extra-legal, arbitrary and summary executions, such orders by superior officers were
prohibited.
This instrument made it mandatory for police officers to defy such orders, and to receive
sufficient training in this area. Furthermore, should a killing occur under these
circumstances, all persons involved are to be brought to justice.
It is hence incumbent upon the state to ensure that no disciplinary or criminal sanction is
brought to bear on an officer who:
I. Refuses to carry out an order to use force or firearms or
II. Reports the unlawful use of force and firearms by other officers;
The international standard of circumstances when police officials exercise their
judgement in refusing to carry out certain orders is enshrined in Articles 25 and 26 of
the basic principles on the use of force and firearms by law enforcement officials:
Article 25
“Governments and Law Enforcement agencies shall ensure that no criminal or
disciplinary sanction is imposed on Law Enforcement officials who, in compliance with
the Code of Conduct for Law Enforcement officials and these basic principles, refuse to
carry out an order to use force and firearms, or who report such use by other officials.”
Article 26
“Obedience to superior orders shall be no defence if Law Enforcement officials knew
that an order to use force and firearms resulting in the death or serious injury of a
person was manifestly unlawful and had a reasonable opportunity to refuse to follow it.
In any case, responsibility also rests on the superiors who gave the unlawful orders.”
Where the police officer utilizes force and firearms in response to a superior order,
he/she shall not be allowed to raise the defence of obedience to superior orders if:
The order was clearly unlawful
The officer had ample and reasonable opportunity to refuse to comply with
the order.
CONCLUSION
Intentional lethal use of force and firearms shall be permitted only when strictly
unavoidable in order to protect human life. Police officials may only use force when
strictly necessary and to the extent required for the performance of their duties adhering
to national legislation practices. In the performance of their duties, police officials shall
respect and protect human dignity and maintain and uphold all human rights for all
persons.
