Constitution Watch 1/2019 Lethal Force and the Use of the Military to Maintain Order
17 January 2019
CONSTITUTION WATCH 1/2019
Lethal Force and the Use of the Military to Maintain Order
Once again soldiers have assisted the Police in maintaining law and order in our
cities. Once again – tragically – people have been shot and killed, though it is not
clear if soldiers or police officers fired the shots.
In this Constitution Watch we shall look at the degree of force that may be used to
maintain law and order, and at the circumstances in which military personnel may be
called upon to assist the police for that purpose.
Degree of Force that may be Used
In maintaining law and order, and in quelling riots and public disturbances, the
authorities are entitled to use whatever force is reasonably necessary for the
purpose, but no more than that. Excessive force is illegal. This is made clear by:
Section 208 of the Constitution, which states that members of the security
services [principally the army and the police] must not, in the exercise of their
functions, “violate the fundamental rights or freedoms of any person”
Section 29 of the Public Order and Security Act, which states that the degree of
force to be used in dispersing illegal gatherings “shall not be greater than is
necessary for dispersing the persons gathered and shall be proportionate to the
circumstances of the case and the object to be attained”
Section 42 of the Criminal Procedure and Evidence Act, which specifies the
degree of force that may be used to arrest someone who resists arrest: in such a
case the arresting officer may use “such force as may be reasonably justifiable
and proportionate in the circumstances to overcome the resistance or prevent the
person concerned from fleeing”.
Whatever violence is used, and whatever the provocation, people must not be killed.
The right to life is sacrosanct and cannot be taken away except by a court when it
sentences a criminal to death [section 86(3)(a) of the Constitution]. Hence, if police
officers or soldiers resort to the use of firearms they must do so with extreme
caution: if they shoot someone and kill them the killing will always be unlawful.
Purpose of Force
Not only must any force used by law enforcement authorities be reasonable, it must
also be used for a legitimate purpose, i.e. maintaining law and order and national
security. It must not amount to indiscriminate violence. People must not be beaten
up, and they must not be made to remove illegal barricades across roads if they
themselves played no part in erecting them.
And, importantly in the circumstances of a strike or stay-away, force cannot be
legally used to compel people to go to work. Whether the stay-away is legal or
illegal is immaterial. The authorities can [and should] stop any intimidation of
workers, and they can legitimately remove obstacles preventing workers from going
to work, but they cannot force or compel workers to go back to work.
When the Military can be Called Upon to Aid the Police
Section 213 of the Constitution states that only the President can authorise the