INTRODUCTION
[1] Katiba Institute, a constitutional research, policy and litigation institute and Africa Centre for Open Governance (AfriCOG), a non-profit organization with the mission to promote good governance and the implementation of the Constitution, (being the 1st and 2nd petitioners herein respectively) instituted the petition dated July 31, 2017.
[2] The petition was supported by the affidavit of Yash Pal Ghai deposed to on an even date.
[3] The petitioners challenged the constitutionality of paragraph 1(c), (d) and (e) of part B of the sixth schedule to the National Police Service Act, No 11 of 2014 as amended by section 54 of the National Police Service (Amendment Act) No 11 of 2014 (hereinafter referred to as ‘the impugned amendments’).
[4] The petition was opposed.
THE PETITION
[5] The petitioners contended that the introduction of the impugned amendments was a claw back from the gains made by the 2010 Constitution as far as the protection of the right to life, dignity and fair hearing is concerned under articles 23, 28 and 50 of the Constitution.
[6] The petitioners averred that the impugned amendments set out the conditions for the use of firearms being to save and to protect life, self-defence, protection of property, preventing a person charged with felony from escaping lawful custody and preventing a person who attempts to rescue a person charged with a felony from escaping lawful custody.
[7] The petitioners based their case on the basis of articles 2(1), (4), 10, 20(3), 21(1), 24, 24(1), 26, 26(3), 28, 29, 50(1)(2) of the Constitution.
[8] They pleaded that while the Constitution permits the right to life to be limited by written law under article 26(3), that law must pass the tests set under article 24(1) of the Constitution.
[9] They asserted that the impugned amendments were not reasonable and justifiable in an open democratic society based on human dignity.
[10] It was their case that the impugned amendments did not indicate the intention to limit the right, the nature and extent of that limitation, which were cardinal requirements under article 24(2) of the Constitution.
[11] In tracing the history of the right to life, the petitioner pleaded that the 1969 Constitution (now repealed) provided for deprivation of life in certain circumstances as were provided in section 71 of the said Constitution a position which was reflected in section 84 of the repealed Police Act.
[12] It was their case that the 2010 Constitution did away with the exceptions under section 71 of the old Constitution and section 28 of the Police Act by defining the right to life as one that could not be deprived intentionally except as provided for under article 26(3).
[13] The petitioners maintained that the whereas written law may authorize deprivation of life, it must be tested against the requirements of article 24(1) and (2) of the Constitution so as to be cleared as being justifiable and reasonable.
[14] In respect to international instruments, the petitioners impugned the amendments hinging their arguments on provisions of article 4 of the African Charter on Human and Peoples Rights, article 6(1) of International Covenant on Civil and Political Rights, article 3 of Universal Declaration of Human Rights, article 3 of the Code of Conduct for Law Enforcement Officials and paragraph 9 of the United Nations Basic Principles of on the Use of Force and Firearms by Law Enforcement Officials.
[15] The petitioners claimed that the impugned amendments were unconstitutional for failing to provide for the necessary safeguards as articulated under article 24(2) of the Constitution and for failing to provide justification of the of the limitation that meets the requirements of article 24(1) of the Constitution.
[16] They reiterated that the impugned amendment was unconstitutional for authorizing shooting and potential killing of non-violent persons who pose no threat.
[17] The petitioners posited that absent risk to life or serious injury, shooting and possibly killing a non-violent person in order to protect, prevent escape or to prevent a person from assisting in an escape is inherently arbitrary an incompatible with the right to life, dignity, freedom and security of a person as provided for in article 26, 28 and 29 of the Constitution respectively and incompatible with article 24 on the limitation of rights.
[18] It was their case that the authority created by the impugned amendments empower the police to replace the criminal justice system with their own determination of guilt, passing judgment and imposing punishment instead of arresting the suspect and bringing them before court to face the law.