'Allow people to kill in self defence'

The police want the new Constitution to be amended to allow "justifiable homicide" which involves killing of criminals in self defence or while protecting other people.

They say the law as it stands, gives offenders more rights compared to the victims.

Justifiable homicide was provided for in the old Constitution, but the new supreme law only allows the courts to sentence someone to death.

The police also want a host of other changes to the supreme law to make their policing efficient.

Appearing before the Parliamentary Thematic Committee on Human Rights yesterday, police Deputy Director, Legal Services (Civil Process), Assistant Commissioner Takawira Nzombe said Section 48 of the new Constitution should be urgently amended.

He was representing Police Commissioner-General Augustine Chihuri who could not attend the hearing.

Section 48 of the new Constitution says that every person has the right to life, adding that a law may permit the death penalty to be imposed on a person convicted of murder committed in aggravating circumstances.

Asst Comm Nzombe said the way the section was crafted outlawed killing in self defence or protecting family and only gave the courts the right to allow killing of an individual. "As citizens are we allowing ourselves as a country to say those who do not obey the law are given more rights than the law-abiding citizens?" queried Asst Comm Nzombe.

"So, in our view, Section 48, the way it is couched, gives those who commit offences more rights than the citizens. The previous provisions of Section 48 allowed justifiable homicide where you were in defence of life of a third party or in defence of your own life or property. If a person comes to you ,you were then allowed to kill.

"So, we are saying in terms of this new Constitution we are appealing to you, you may have a look at it and see whether we may amend it so that we are allowed to defend our children, to defend our properties because if we don't all of us will be accused of murder for defending our properties or ourselves."

But legal practitioners said in interviews that there was no need to amend the Constitution.

Jonathan Samkange of Venturas and Samkange law firm said the Constitution could not be amended to allow exceptions to kill.

"The drafters of the Constitution did the right thing," he said. "How can you ask to be allowed to kill? What the Constitution says is that only the courts are allowed to discipline people.

"Teachers have accepted it and us as parents we have also accepted it. So, why shouldn't the police also accept it? All these arguments were raised during the constitutional outreach, but were not adopted. People said no to killing another person. When faced with a situation where you are attacked you should at most disable the person than aim to kill them."

Samkange said in the event of a killing, it was up to the courts to determine whether the person had done it in self defence or aggravating circumstances.

University of Zimbabwe law lecturer Professor Lovemore Madhuku said the Constitution recognised justifiable homicide.

"They (police) have a narrow and simplistic view of killing because a person who kills in self defence has not killed," he said. "The issue is that the police cannot pursue robbers and just kill them. But they can kill in preserving their own lives.

"For instance, killing in defence of the life of a police officer is not outlawed. The difference with the previous Constitution is that it allowed killing in defence of property. But now no one can use killing as a way of dealing with a situation."

Speaking on other issues before the parliamentary committee, Asst Comm Nzombe said Section 50 on the rights of arrested and detained persons made it difficult for them to carry out their policing roles.

He said the new Constitution demanded that an arrested person should be brought before the courts within 48 hours after their arrest, including during holidays and weekends.

Asst Comm Nzombe said there were remote areas where they only had circuit courts that sit twice a week, making it difficult for the accused to be brought before the same courts within the 48-hour period.