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TRC Final Report
Page Number (Original) 88
Paragraph Numbers 144 to 149
Accountability and law enforcement: exercise of police powers
144 States normally enjoy a monopoly over the legitimate use of force. Certain bodies and officials, primarily the police services, are empowered to use force to uphold the rule of law and to maintain public order. As in the case of armed conflict, however, the authority to use force to uphold domestic order is not unlimited. Generally, members of the police services are authorised to use a reasonable amount of force in proportion to the threat being addressed or the legitimate ends being pursued. Lethal force should be used only when someone’s life is in imminent danger and there is no other reasonable way to control the situation.
145 These norms are captured in the Code of Conduct for Law Enforcement Officials, adopted by the United Nations General Assembly on 17 December 1979 (Resolution 34/169). For the purposes of this part of the Commission’s mandate, the most important articles are articles 1, 2, 3, 5 and 6 which state:
Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession. In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.
Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty. 28
No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.
Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.
146 These norms governing the use of legitimate state power are particularly difficult to apply to the period of South African history prescribed by the Commission’s mandate. The large majority of people inside and outside the country increasingly rejected the legitimacy of the state, and activists fighting against apartheid were defined as criminals through the enforcement of harsh, unjust and discriminatory laws.
147 However, individual police officers saw it as their duty to enforce laws that many of them did not, at the time, believe to be unjust. Indeed, in the South African context, the police were given very wide powers to use lethal force through, for example, the Criminal Procedure Act. In the overwhelming majority of inquests involving allegations of excessive force, the police members involved were cleared of any misconduct. These included cases arising out of Sharpville, Soweto 1976 and the ‘Trojan Horse’ incidents in Athlone and Despatch, where local and international human rights organisations condemned the laws which made these acquittals possible and their uncritical application by the judiciary (see submissions on the judicial system).
148 Since the Commission had to decide whether specific acts by the SAP or homeland police forces constituted human rights violations and not necessarily whether they were legal or illegal in terms of the relevant domestic laws, it employed the internationally accepted principle of unnecessary or excessive force (described above). In the light of these international norms, the Commission found that, although the applicable South African laws at that time might not have been broken, fundamental human rights were often clearly violated. In a number of cases, the Commission was also presented with new and compelling evidence (for example corroborated statements by victims or witnesses) which strengthened the basis upon which it reached conclusions that differed from those reached at most inquests and criminal proceedings regarding police misconduct.
149 In determining whether excessive force was used, the Commission determined that it should be guided by the following considerations. First, as a body working to assist in the establishment of a culture of human rights, the Commission followed the inclusive approach to protection found in international humanitarian law. It thus interpreted human rights protections broadly to ensure maximum protection against violations. Second, since the primary duty of the police is to uphold law and order through the apprehension and arrest of those who break the law, the use of lethal force is justified only in extreme situations.28 The Commentary on this Article states that “the use of firearms is considered an extreme measure. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardises the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender”.