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The attempt by the Zimbabwe Passenger Association to stop the police using strips of road spikes as a way of backing up their instruction to a driver to halt deserved to fail and the High Court judge hearing the application spelt out carefully why he thought an interdict would be a bad idea.
“To grant the application would be tantamount to legalising the actions of these errant motorists as the police would be incapacitated to deal with them,” noted the judge.
The test for all police action, of course, is that it must be appropriate, it must be proportionate, that is bear some relationship to the seriousness of the offence, it must involve the minimum force required to effect an arrest or institute an inquiry, and it should not place bystanders or others not involved in danger.
In many cases spikes provide a good answer. Most people, for example, approaching a roadblock are far happier to see the police backing up their rather weak barrier with a line of shortish spikes rather than relying on an officer with a high-powered rifle at the other end of the block.
If the car next to theirs refuses to stop all that is going to happen is that it will come to a sudden halt as all four tyres deflate and they do not have to worry that the armed officer will open fire and either hit the innocent vehicle or have ricochets hitting the innocent pedestrians. As many of those drivers reluctant to stop are carrying passengers some sort of passive non-lethal method of enforcing a halt order is even more critical.
Most of us remember that a couple of years ago an armed officer at a roadblock fired at a kombi that declined to stop and hit and injured a passenger. Fortunately she recovered but she took the police to court for damages. The court, in that dry legalistic way of courts, made it clear that it thought the action was neither appropriate, nor proportionate, nor involved minimum force and had exposed the innocent to unacceptable risks.
Opening fire on a kombi to see if it is licensed and if it has the required permits was obviously a wrong action. But if the kombi had driven over a line of spikes after refusing to stop, most people would just shrug their shoulders and the passengers would be able to disembark and wait for a better bus to finish their journey.
Of course opening fire on a vehicle might well be the proper action. One extreme example would be dealing with a car holding a gang of armed robbers firing out of the windows. Just the other week we had a police patrol south of the Bvumba faced with two nine-tonne trucks carrying smuggled bales of clothes that refused to stop. The tyres were shot out, but in that case there were negligible risks to the innocent or even to the drivers, so it passed the tests.
As the judge made clear, and he referred to the police instruction manual that was presented to the court, the police need to be able to use a range of equipment to deal with law breakers.
But it also needs to be stressed that not every use of passive or active force Is legal or appropriate in every set of circumstances. Even spikes, an example of passive force that is generally acceptable in almost every case, could be the wrong solution in certain circumstances. If the Zimbabwe Passenger Association wants to assist its members in exploring the limits of law enforcement it cannot seek to ban useful and reasonable methods but it can look at individual instances.
Sometimes police do take excessive action or wrong action. And those at the receiving end have the right to complain, and have the right to seek legal redress and damages.
The association could easily find a set of test cases if it felt that the police were acting wrongly or unfairly and assist members in making complaints and, if that did not work, assist with civil suits. Successful complaints would generate changes in procedures, and the police are already modifying and enforcing their own standards, and successful civil suits on the particular action in a particular set of circumstances, would give court backing to the rejection of poor police decisions.
One example is the smashing of windscreens, and even of the windows of a passenger compartment, by an office free with a baton. Here the police have been on more dubious ground, and know they have. It cannot be banned, since it might be appropriate in certain circumstances and is certainly far more acceptable than using firearms or other more lethal methods. But there have certainly been cases witnessed where it was wrongly used and done more to punish drivers than arrest them. That is where complaints and court actions could have a result.
Using the complaints and court systems properly does work. There were occasions in the later 1980s and the 1990s when a group of public-spirited lawyers took on a number of carefully-selected cases and sued individual police officers, as well as their superiors, over what were seen as inappropriate, unreasonable, disproportionate and in some cases downright illegal actions.
This worked and we even had Home Affairs Ministers lecturing police officers to follow the rules as the ministers were tired of signing off out-of-court settlements based on the test cases brought to court.
The police are not some monolithic machine. The force is a large group of tens of thousands of officers who generally operate in small groups or alone and expected to make the right decision every time and are supposed to take action against law breakers.
They need to backed by good training and good standard procedures, and they need to be backed by their superiors with good advice and supported even if in retrospect the decision was not the greatest but made in good faith and adhered to the rules and the law. It is a difficult job and society needs to be supportive when it is done right, be willing to praise when it is done well, be understanding about good-faith decisions that in retrospect turned out wrong and be willing to work with the police force as a whole to root out unacceptable procedures and officers who break their own oaths.
The police have put in far better complaints procedures to open themselves to society oversight, and that needs to be used for everyone’s benefit, with the courts as a final resort when there is still doubt.
Online Reporter