1 Throughout this article, the term “lethal force” means “such force as under normal circumstances poses a high risk of death or serious injury to its human target, regardless of whether or not death, serious injury, or any harm actually results in a given case. Firing a weapon is always [lethal] force.” See Finch, FR “Deadly force to arrest: Triggering constitutional review” (1976) Harvard Civil Rights – Civil Liberties Law Review 361 at 363Google Scholar.

2 F Phiri “Death toll rises to 18 in anti-Wa Mutharika protest” (21 July 2011) The Malawi Democrat, available at: <http://www.malawidemocrat.com/death-toll-rises-to-18-in-anti-wa-mutharika-protest/> (last accessed 10 June 2013).

3 D Chirwa “Malawi police used live bullets on 20/7 demo – MHRC inquiry” (15 August 2011) Nyasa Times, available at: <http://www.nyasatimes.com/2011/08/15/malawi-police-used-live-bullets-on-207-demo-mhrc-inquiry/> (last accessed 10 June 2013).

4 See B Sonani “Police officer kills Lilongwe street kid” (20 October 2010) The Nation (copy on file with the author).

5 L Masina “Human rights versus security in Malawi: Malawi President Bingu wa Mutharika issues shoot to kill orders for armed criminals” (21 January 2011) Think Africa Press, available at: <http://thinkafricapress.com/article/human-rights-versus-security-malawi> (last accessed 10 June 2013).

6 Kanyongolo “Shooting to kill?”, above at note *; M Nyondo “I agree with shoot-to-kill strategy ‘Mukhito Akukazingani’” (20 January 2011) Malawi Voice, available at: <http://www.malawivoice.com/latest-news/i-agree-with-shoot-to-kill-strategy-mukhito-akukazingani> (last accessed 10 June 2013).

7 Kanyongolo, ibid.

8 It has been argued that the phrase “shoot to kill policy” is misleading. The evidence of such a policy is found in unofficial practices whereby shootings are allegedly condoned, tolerated or even covertly encouraged, either directly by supervisory officers or, less directly, by politicians or “public opinion”. It is also construed from the manner in which police shootings are interpreted and dealt with by the police. Thus, secrecy surrounding the shootings and lack of prosecution of the officers responsible is crucial: see Squires, P and Kennison, PShooting to Kill? Policing, Firearms and Armed Response (2010, John Wiley & Sons) at 83–84CrossRefGoogle Scholar. These sentiments aptly describe the situation in Malawi. There have been rumours from within the police force that a shoot to kill order was actually issued: see F Mzumara “Malawi police ordered to ‘shoot-to-kill’” (30 November 2010) Nyasa Times (copy on file with the author). There is generally very little information available in the public domain as to the circumstances of police shootings; see G Gondwe “Police shielding trigger-happy officers” (25 October 2006) The Chronicle, available at: <http://allafrica.com/stories/200610250269.html> (last accessed 10 June 2013). There is direct political support for the implementation of a shoot to kill policy. In his speech, the president “praised [the] Inspector General of Police, Peter Mukhito, for having started implementing the shoot-to-kill policy some time back as a [crackdown] on armed criminals” describing him as “a no nonsense man”; see I Saiwa and F Banda “Mutharika orders police to ‘shoot-to-kill”’ (18 January 2011) Nyasa Times (copy on file with the author). Lastly, the prosecution of responsible officers is rare. For instance, police officers responsible for the deaths of Epiphania Bonjesi (aged ten) and Lucious Kamanga who were shot dead in the aftermath of the May 2004 general elections are yet to be prosecuted. Similarly, no criminal charges have been brought against perpetrators of the December 2001 killing of Fanikiso Phiri, a university student, who was shot in the chest during demonstrations at Chancellor College in Zomba; see B Sonani “Fanikiso compensation inadequate” (19 May 2005) The Nation, available at: <http://groups.yahoo.com/group/MALAWIANA/message/3176> (last accessed 11 June 2013).

9 See D Smith “South Africa considers ‘shoot to kill’ policing ahead of World Cup” (16 September 2009) available at: <http://www.guardian.co.uk/world/2009/sep/16/south-africa-police-world-cup> (last accessed 26 February 2012). President Zuma later refuted that he had encouraged the use of lethal force by the police; see Open Society Foundation for South Africa “Report on the OSF-SA roundtable discussion on the human rights and practical implications of the proposed amendments to section 49 of the Criminal Procedure Act” (28 April 2010) at 1–2.

10 See Open Society Foundation for South Africa, id at 1.

11 Act 57 of 1977.

12 The proposed changes sparked considerable debate. See, for instance, van der Walt, T “The use of force in effecting arrest in South Africa and the 2010 bill: A step in the right direction?” (2011) 14/1Potchefstroom Electronic Law Journal 138Google Scholar; D Bruce “Why we can't give police more firepower” (19 September 1999) Sunday Times (copy on file with the author).

13 The article focuses mainly on sec 44 of the Police Act. It does not discuss other provisions, such as sec 105(3) of the act which empowers the police to use force as may be reasonably necessary and appropriate in the circumstances to disperse an unlawful demonstration or assembly where there are reasonable grounds to believe that it poses a danger to person or property.

14 Chap 3:01 of the Laws of Malawi.

15 Criminal case no 73 of 2008 (unreported).

16 Act 20 of 1994.

17 R v Kamanga (1993) 16 (1) MLR 469.

18 Malawian criminal law maintains a distinction between felonies and misdemeanours, the latter being generally less serious offences, therefore carrying lesser penalties than the former. Sec 4 of the Penal Code, chap 7:01 of the Laws of Malawi, defines a felony as “an offence which is declared by law to be a felony, or if not declared to be a misdemeanour, is punishable without proof of previous convictions, or with death, or with imprisonment with hard labour for three years or more”. A misdemeanour is “any offence which is not a felony”. As discussed below, this distinction raises its own problems.

19 Chap 8:01 of the Laws of Malawi, as amended by Act 14 of 2010.

20 Criminal Procedure and Evidence Code, sec 20A(4).

21 In R v Kesten (1923–60) 1 ALR Mal 129, it was held that, in order to escape a murder or manslaughter conviction, a private person who shoots and kills a felony suspect must show that the felony was actually committed and that arrest would not otherwise have been possible. Although limits on the use of firearms by private persons are, as the court pointed out, necessary for the protection of the public, the onus to prove that the felony was in fact committed is inconsistent with sec 33 of the Criminal Procedure and Evidence Code, which only requires that the arrest must be made on reasonable suspicion.

22 Rhodes, MW “Constitutional law – Deadly force to arrest nonviolent fleeing felons: Mattis v Schnarr” (1977) 42 Missouri Law Review 452 at 453Google Scholar.

23 Finch “Deadly force to arrest”, above at note 1 at 365–66 (references omitted). See also Le Roux-Kemp, A and Horne, CS “An analysis of the wording, interpretation and development of the provisions dealing with the use of lethal force in effecting an arrest in South African criminal procedure” (2011) 24/3South African Journal of Criminal Justice 266 at 267Google Scholar.

24 Rhodes “Constitutional law”, above at note 22 at 453.

25 Finch “Deadly force to arrest”, above at note 1 at 366. In Malawi, for instance, the Penal Code as amended by Act 12 of 2010 creates at least 45 new felonies, 27 of which were previously punished as misdemeanours. Some of the changes were based on the perceived seriousness of the crime which warranted an increase in the severity of punishment (this was the case in ten offences). In 17 instances, the understanding was that misdemeanours must carry a maximum of two years imprisonment. Therefore, “the change from ‘misdemeanour’ to ‘offence’ [was] because the offence [was] not a misdemeanour, since it [was] not punishable by less than two years”; see Malawi Law Commission Report of the Law Commission on the Review of the Penal Code (2000, Government Printer) at 34. This latter reasoning, which is evident throughout the Law Commission's report, flows from sec 34 of the Penal Code which provides a general maximum punishment of two years imprisonment or a fine for all misdemeanours where no specific punishment is provided. However, sec 34 does not mean that only offences carrying two years imprisonment are misdemeanours; it is applicable only where no other punishment is provided. In fact, the definition of “felony” in sec 4 of the Penal Code indicates that an offence carrying a penalty of imprisonment for three years or more may be a misdemeanour if the law so provides. It is only in cases where the law is silent that a penalty can be used to classify an offence as a felony or misdemeanour (see note 18 above). The definition adopted by the Law Commission in recommending these changes further blurs the distinction between misdemeanours and felonies. For example, obtaining goods by false pretences (sec 319) and cheating (sec 321) are now felonies because they carry five years' and three years' imprisonment respectively, while obtaining credit by false pretences (sec 322) remains a misdemeanour as it attracts one year's imprisonment. It is perhaps time that the distinction is abolished.

26 Malawi has four capital offences: murder, rape, aggravated robbery and treason. Of these, it was only murder and treason that carried mandatory death sentences. The mandatory death penalty for murder was declared unconstitutional in Francis Kafantayeni and Others v Attorney General constitutional case no 25 of 2005 (unreported). By implication, its mandatory application for treason would be unlawful; see Nkhata, MJ “Bidding farewell to mandatory capital punishment: Francis Kafantayeni and Others v Attorney General” (2007) 1 Malawi Law Journal 10 at 109Google Scholar. The imposition of the death penalty in the other three offences is rare; see Chigawa, M “The death penalty under the laws of Malawi and the law of human rights” (2009) 3 Malawi Law Journal 70 at 83Google Scholar, who notes that the death penalty has been imposed at least once for rape in R v Msowoya confirmation case no 617 of 1989 (unreported).

27 2002 (4) SA 613 (CC) at para 42.

28 Finch “Deadly force to arrest”, above at note 1 at 369.

29 Burchell, J “Deadly force and fugitive justice in the balance: The old and new face of section 49 of the Criminal Procedure Act” (2000) 13 South African Journal of Criminal Justice 200 at 206Google Scholar (emphasis original).

30 Purmessur v R (1993) 16 (1) MLR 458 at 462.

31 Ngozo v R (1997) 1 MLR 192 at 194.

32 Ibid.

33 Kaipa v R (1964–66) 3 ALR Mal 142 at 155.

34 Attorney General v Jackson (1923–60) 1 ALR Mal 488.

35 Chitowe v R (1975–77) 8 ALR Mal 34 at 37–38.

36 The department was replaced with 990 City Patrol in October 2010.

37 Under sec 68(1) of the Forestry Act, chap 63:01 of the Laws of Malawi, it is an offence to receive, possess or traffic in forest produce without a permit / licence. This ordinarily includes the production and possession of charcoal. The offence is punishable by a fine or imprisonment for ten years.

38 R v Cheuka, above at note 15 at 50.

39 Id at 15 and 16.

40 Id at 36.

41 Ibid.

42 Id at 38–40.

43 Id at 50.

44 Id at 51.

45 Id at 55. At the time of judgment, the provision was in sec 30 of the Police Act.

46 Id at 53. Upon deciding that the deceased did not fall within sec 44, the court should have considered sec 20 of the Criminal Procedure and Evidence Code. This is discussed in detail below.

47 Id at 55.

48 Adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August – 7 September 1990.

49 1980, A/RES/34/169.

50 R v Cheuka, above at note 15 at 55.

51 Appln no 43326/05, judgment, 8 January 2009.

52 Appln nos 43577/98 and 43579/98, judgment of 16 December 2003.

53 R v Cheuka, above at note 15 at 57.

54 Id at 53.

55 Id at 55. See principle 9 of the UN Basic Principles.

56 Id at 55–56.

57 Id at 53–54.

58 Id at 54.

59 Ibid.

60 Ibid.

61 Id at 60. The maximum penalty for manslaughter is life imprisonment.

62 Constitutional case no 12 of 2007 (unreported).

63 Ex parte Institute for Security Studies: In re v Basson 2006 (6) SA 195 (SCA) at para 15. See also S v Zuma 2006 (2) SACR 257 (W) at 265. Compare with Thabane, T “‘Stacking the odds against the accused’: Appraising the curial attitude towards amici participation in criminal matters” (2011) 24/1South African Journal of Criminal Justice 19Google Scholar.

64 For instance, rape violates the dignity, privacy and physical integrity of the victim; property crimes affect the right to property.

65 Such as sec 20 of the Criminal Procedure and Evidence Code.

66 R v Cheuka, above at note 15 at 56.

67 Hansen, TT “Implementation of international human rights standards through the national courts in Malawi” (2001) 46/1Journal of African Law 31 at 37Google Scholar.

68 Nkhata “Bidding farewell to mandatory capital punishment”, above at note 26 at 110.

69 Chirwa, DM “A full loaf is better than half: The constitutional protection of economic, social and cultural rights in Malawi” (2005) 49/2Journal of African Law 207 at 235CrossRefGoogle Scholar.

70 Sec 11(2) reads: “In interpreting the provisions of this Constitution a court shall, where applicable, have regard to current norms of public international law.”

71 Narrowing the circumstances in which the police can shoot implies that a shooting which was a lawful shooting at the time it was done can amount to an unlawful act. This would be inconsistent with sec 42(2)(f)(vi) of the Constitution which prohibits the retrospective application of criminal laws. This section provides that an accused person shall “not to be convicted of an offence in respect of any act or omission which was not an offence at the time when the act was committed or omitted to be done”.

72 Sec 44 has remained substantially the same since its enactment in 1946. The only change effected by Act 12 of 2010 is the addition of sub-secs 3 and 4.

73 This was held to be unconstitutional by the United States Supreme Court of Appeal in Tennesse v Garner 471 US 1 (1985).

74 See Chirwa, DMHuman Rights Under the Malawian Constitution (2011, Juta) at 93–94Google Scholar.

75 Finch “Deadly force to arrest”, above at note 1 at 361.

76 See Tennesse v Garner, above at note 73 at 11–15; Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) at paras 16–21.

77 Incidentally, the court's finding that the accused intended to kill the deceased would have sustained a conviction of murder since the requisite criminal intent would have been established (the author is grateful to Prof Jonathan Burchell for this point). However, the court could not have entered a conviction for murder on a charge for manslaughter without the accused being given a chance to defend himself on a murder charge. In fact, the suspects were initially charged with murder; it is not clear from the judgment how this was changed to manslaughter.

78 R v Cheuka, above at note 15 at 8–9.

79 Id at 54.

80 Id at 54–55.

81 J Thompson “Policing in a violent democratic society: Lessons in the use of force from the United States” (section of report of the Workshop on Developing a Use-Of-Force Policy for the South African Police Service, Johannesburg, 21–22 July 2011) 7 at 9.

82 R v Cheuka, above at note 15 at 8.

83 Id at 7.

84 Id at 38.

85 Emphasis added.

86 Compare with R v Cheuka, above at note 15 at 53.

87 See the discussion on the accuracy of guns below.

88 Coroner's report in Jones v Marshall 383 F supp 358 (D Conn 1974), as quoted in Finch “Deadly force to arrest”, above at note 1 at 363. The police in Malawi use various types of guns which have different levels of accuracy.

89 Squires and Kennison Shooting to Kill?, above at note 8 at 87–88 (references omitted).

90 Above at note 76 at para 20.

91 Thompson “Policing in a violent democratic society”, above at note 81 at 8.

92 Finch “Deadly force to arrest”, above at note 1 at 457.

93 Ibid.

94 The wording of sec 44(1)(d) is also found in sec 19(4) of the Prison Act, chap 9:02 of the Laws of Malawi, which governs the use of force by prison officials. The 2003 Prison Bill proposes a complete rewording of the section, eliminating the latter section; see clause 31 as read with clause 29 of the bill.

95 See G Muheya and F Mzumara “Malawi police shoot 4 robbers dead, arrest 283” (22 December 2011) Nyasa Times, available at: <http://www.nyasatimes.com/2011/12/22/malawi-police-shoot-4-robbers-dead-arrest-283/> (last accessed 11 June 2013).

96 Ibid.

97 Ibid.

98 Bruce, D “Beyond section 49: Control of the use of lethal force” (2011) 36 South African Crime Quarterly 3 at 6Google Scholar.

99 Mpungula v Attorney General (1996) MLR 149 at 152.

100 Bruce “Beyond section 49”, above at note 98 at 7.

101 Squires and Kennison Shooting to Kill?, above at note 8 at 87–88.

102 R v Cheuka, above at note 15 at 53.

103 Bruce “Beyond section 49”, above note 98 at 6.

104 Mpungula v Attorney General, above at note 99 at 152.

105 R v Cheuka, above at note 15 at 50.

106 The proportionality inquiry in sec 20(4) of the code is not a result of the amendments under Act 14 of 2010. The inquiry existed as a proviso to sec 20 before the amendments, thus would have been applicable at the time of the judgment.

107 See Govender v Minister of Safety and Security, above at note 76 at para 21.

108 Smith, JC “The right to life and the right to kill in law enforcement” (1994) New Law Journal 354 at 356Google Scholar.

109 R v Cheuka, above at note 15 at 55.

110 See Evance Moyo v Attorney General, above at note 62 at 7–8.

111 R v Cheuka, above at note 15 at 55.

112 Ibid.

113 A Kasunda “Police should use minimum force” (21 January 2010) The Nation (copy on file with the author).

114 A reader's comment on Muheya and Mzumara “Malawi police shoot 4 robbers dead”, above at note 95, available at: <http://www.nyasatimes.com/malawi/2011/12/22/malawi-police-shoot-4-robbers-dead-arrest-283> (last accessed 2 February 2012).

115 U Mwakasungula as quoted in Kasunda “Police should use minimum force”, above at note 113.

116 See the commentary to article 3 of the UN Code of Conduct.

117 Bruce “Beyond section 49”, above note 98 at 9.

118 A Kasunda “Police gun down robbers” (13 November 2010) The Weekend Nation (copy on file with the author).

119 P de Vos “If we start killing our own people we all lose” (13 November 2009), available at: <http://constitutionallyspeaking.co.za/if-we-start-killing-our-own-people-we-all-lose/> (last accessed 9 March 2012).