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Use of Force by Law Enforcement Officials in Namibia

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Use of force by law enforcement officials in Namibia Legal Assistance Centre November 2019 1. Introduction .......................................................................................................................... 2 2. Operation Hornkranz and Operation Kalahari Desert ................................................... 3 3. International guidelines ....................................................................................................... 8 3.1 Peel’s Nine Principles, 1829 ..................................................................................................... 9 3.2 United Nations Code of Conduct for Law Enforcement Officials, 1979 ................................ 10 3.3 Basic Principles on the Use of Force and Firearms for Law Enforcement Officials (BPUFF), 1990 ....................................................................................................................... 11 3.4 United Nations Standard Minimum Rules for the Treatment of Prisoners (“Nelson Mandela Rules”), 2015 ............................................................................................ 16 3.5 SARPCCO Code of Conduct for Police Officials .................................................................. 19 3.6 Practical guidelines ................................................................................................................. 21 4. Current Namibian law ....................................................................................................... 29 4.1 Namibian Constitution ............................................................................................................ 29 4.2 Namibia’s armed forces .......................................................................................................... 30 4.3 Police Act 19 of 1990 ............................................................................................................. 35 4.3 Criminal Procedure Act 51 of 1977 ........................................................................................ 36 4.5 Defence Act 1 of 2002 ............................................................................................................ 43 4.6 Correctional Service Act 9 of 2012 ........................................................................................ 43 4.8 Other statutory authority for use of force ............................................................................... 45 4.9 Nampol Standing Orders and Operational Manual ................................................................. 47 5. Comparative law ................................................................................................................ 50 5.1 South Africa ............................................................................................................................ 50 5.2 New Zealand ........................................................................................................................... 58 5.3 Canada .................................................................................................................................... 65 5.4 European jurisprudence .......................................................................................................... 69 5.5 US jurisprudence .................................................................................................................... 71 6. Analysis ............................................................................................................................... 73 7. Recommendations .............................................................................................................. 75 Acknowledgements: This report was drafted by Dianne Hubbard with input from Hannah Van Dijcke, M’Mah Touré, Andrew Cooper and Yolande Engelbrecht. Administrative support was provided by Celine Engelbrecht. The research was funded by Hanns Seidel Foundation. We would like to thank the Namibian Police for providing us with a copy of their Operational Manual. 1 1. Introduction This paper looks at the legal framework for use of force by law enforcement officials when they are carrying out their duties. “Law enforcement officials” refers to all personnel who exercise police powers, especially the powers of arrest or detention.1 “Use of force” in the law enforcement context refers to “the amount of effort required by police to compel compliance by an unwilling subject”.2 This paper considers in particular unlawful, excessive or arbitrary use of force. “Unlawful” use of force means force that violates the principle of legality, because it has an insufficient legal basis or because it is used for a reason that is not a legitimate law enforcement objective. “Excessive” use of force is where the use of force was lawful, but the type and level of force was unnecessary or disproportionate. “Arbitrary” use of force means a use of force characterized by an element of injustice, discrimination, unreasonableness, abuse of power, or exercise of unwarranted discretion.3 However, this paper does not address torture, which is when somebody in an official capacity inflicts mental or physical pain on someone for a specific purpose – such as to extract a confession, to get information or to serve as a punishment in order to spread fear in society.4 The study was triggered by the recent increase in reports of abuse of force by the Namibian Police (Nampol) and the Namibian Defence Force (NDF). As of November 2019, the Legal Assistance Centre is handling 32 cases of such incidents, 11 of which are related to Operation Hornkranz or Operation Kalahari Desert. This paper will look at the key international standards, the guidance provided by current Namibian law, and some comparative law models to consider if Namibian laws on this issue might be improved. It concludes with recommendations for reform to the relevant legislation, but does not propose changes to operational guidance – which would need to be predicated on any future legislative changes. 1 See Code of Conduct for Law Enforcement Officials, adopted by UN General Assembly resolution 34/169 of 17 December 1979, commentary to Article 1, para (a). 2 This often-quoted definition is usually attributed to the International Association of the Chiefs of Police. See, for example, International Association of the Chiefs of Police, Police Use of Force in America, 2001. 3 Resource book on the use of force and firearms in law enforcement, United Nations Office on Drugs and Crime, 2017 at 2. 4 See “Torture“, Amnesty International, 2019. The Convention against Torture defines “torture” in Article 1(1) as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2 African Commission on Human and Peoples’ Rights Noah Kazingachire, John Chitsenga, Elias Chemvura & Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, Communication 295/04, 18 April to 2 May 2012 “There are several reasons why the use of lethal force by the police, also in the context of arrest, should be viewed as a matter of the utmost gravity, and be based on a solid ethical and legal framework. These include the fundamental nature of the right to life; the irreversible nature of death; the potential of errors of fact and judgement; the effect on the legitimacy of the police and the State; and the trauma suffered by everyone involved when a life is ended through violence. However, in some cases of urgency, law enforcement officials are given the power by law to use coercive measures and even in exceptional cases to take life-and-death decisions on the spot. […] It should be kept in mind that law enforcement officials have a legal duty to perform their functions. Not giving the police the proper scope to protect the public and themselves could compromise the safety of the public as well as members of the police force. A system that is seen as too protective of the rights of suspects is unlikely to be effective in practice. The challenge clearly is to find the right balance between overly permissive and overly restrictive. The starting point is that life should not be taken by the State, and any action that seeks to fall in the narrow confines of exceptions to this rule requires strong motivation.” paragraphs 108-109 (footnotes omitted) 2. Operation Hornkranz and Operation Kalahari Desert Operation Hornkranz was launched by the President in December 2018. It brought together members of the Namibian Police, the Namibian Defence Force, the Namibian Correctional Service and the City Police to fight the increase in crime in Windhoek and other major towns more effectively.5 In May 2019, Operation Hornkranz was replaced by Operation Kalahari Desert.6 Its first phase ran from 11 May to 30 June 2019, with a second phase being launched on 12 August 2019.7 Police indicated that it would run in intervals until December 2019, with another operation being introduced in January
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