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The Constitutionality of Article the Constitution of Namibia which is the

49 of the Criminal Procedure supreme law of the country, specifically

the following articles found in chapter 3
Act 51 of 1977 (as applicable in
of the Constitution:
Namibia).
Article 6: the Right to life
Are all the laws that go against the
Constitution entirely unconstitutional or Article 8: the right to human dignity

is there some sort of exception to laws

Article 21: fundamental freedoms
that are meant to protect specific
specifically sub article (1) (g) to move
individuals that carry out the
freely throughout Namibia.
responsibilities they have. In this article I
will look at the constitutionality of However Article 22 places a limitation

Section 49, what it aims to protect and upon fundamental rights and freedoms

the reasons for it. which are found in chapter 3 of the

Constitution.
Section 49 is divided into two
subsections. Section 49 (1) regulates all Article 115 establishes a police force

situations where force was used for with prescribed powers, duties and

purposes of arrest except where a procedures in order to secure the

person was killed. This hereby includes internal security of Namibia and to

situations where a person is injured or maintain law and order. The Police Act

disabled as a result of the use of a 19 of 1990 confers specific functions,

firearm or other lethal force. Section 49 powers and duties to the members of

(2) expressly refers to situations where a the police force.

person is killed. Before we discuss the constitutionality of

The Criminal Procedure Act 51 of 1977 Section 49 it is important to establish the

is still applicable in Namibia and no aim of the section and the intention of

amendments were made specifically to the legislation. Section 49 aims on

Section 49. If we are to look at the protecting a police officer who is doing

constitutionality of the section in its strict his duty of protecting the nation against

sense, it is very evident that it violates dangerous suspected or accused


criminals who can possibly cause harm
to other people if they are not arrested; if
police officers are not granted some sort
of protection when they are carrying out
their duties they will not do them
effectively as they will try by all means to
avoid prosecution and subsequently
many criminals will flee from criminal
scenes etc. that is why it is very
important that police officers are
protected by the law for killing someone
when they are simply performing the
duty they have towards the society at
large.
However the core values of the
Namibian Constitution grants everyone
rights and freedoms under chapter 3
which are to be abided by every citizen,
if this is not the case a person will face
consequences by the Courts and could
subsequently be imprisoned if found
guilty. The question that arises is
whether Section 49 violates the core
constitutional values such as the right to
life found in Article 6. Article 12 (d)
states that every accused is guilty until
proven guilty and they have the right to
a fair trial, when a police officer kills a
suspect he subsequently takes away
this right afforded to them by the
Constitution.
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Article 5 states that the fundamental
freedoms in chapter 3 shall be
respected and upheld by the Namibian
nation at large. So the whole Nation has
a responsibility to respect the others
rights found in the Constitution.
In my opinion, Section 49 is not
unconstitutional in any manner because
as a nation we should look at the safety
of the nation at large, if someone is
fleeing from the scene of the crime and
they have been warned to stop by
means of a warning shot in the air but
continue to flee and a police shoots and
they die because of this shot, one
cannot entirely blame the police officer,
reason being, this police officer did not
have the intention of killing this person,
rather he/she wanted to bring them to
justice. However the police officer
should not aim at killing the suspect but
rather at stopping them from fleeing, the
courts need to apply the reasonable
mans test as to whether a reasonable
police officer would have used the type
of force that he used to stop the suspect
from fleeing.
Lethal force against a fleeing person can
only be justified where there are no
other means of preventing the suspect
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from running away and where the The right afforded to the police officers
suspect has committed a Schedule 1 to kill a suspect in order to arrest him
crime (this includes crimes such as may be necessary to preserve law and
rape, murder, robbery, breaking and order.
entering to commit an offence, theft,
The state however bears the
escaping from lawful custody, bestiality,
responsibility to prove beyond a
kidnapping etc these can be found in the
reasonable doubt that the police officer
Criminal Procedure Act).
had the intention of killing the suspect
For a police officer to shoot a suspect and was therefore not negligent in his
there has to be some sort of emergency. action and the police officer has to prove
Where the suspect poses no immediate to the court that he acted in accordance
threat to the officer or to the public the with the requirements of Section 49 (2).
harm resulting from trying to stop him
It is necessary to consider the interests
does not justify the use of deadly force
of society when courts are making
to do so. Where the officer has reason
decisions of such a nature. A police
to believe that the suspect poses a
officer who kills a fleeing suspect should
serious threat of serious physical harm
not be treated as an ordinary criminal
either to himself or the public, it is not
who committed an offence of murder.
constitutionally unreasonable to prevent
escape by using deadly force. In conclusion, Section 49 is
constitutional and upholds the values of
In South Africa, Section 49 (2) was
the constitution as police officers have a
declared unconstitutional in 2002. One
responsibility to uphold the constitution
of the main reasons for this was to
and to protect the society from
prevent police officers from using deadly
perpetrators. However it is only in
force and killing suspects under the
extreme circumstances that it will be
protection of this section however recent
deemed justifiable homicide; not every
media reports in South Africa reflect that
police officer gets away with killing a
the police and government are
suspect, although he did not have the
considering to bring the provision back
intention, if he was negligent he will be
in respect of certain serious offences.
liable for culpable homicide.
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Bibliography

Bruce, D. 2003. “Killing and the Constitution- arrest and the use of lethal fo rce”. South
African Journal on Human Rights. Volume 19, Part 3

Criminal Procedure Act 51 of 1977

Du Toit, et al. 1996. Commentary on the Criminal Procedure Act. Juta & Co

Horn, N. The independence of the prosecutorial authority of South Africa and Namibia:
A comparative study

Johannes v The State Case No: CA 20/2009

Kruger, A. 2008. Hiemsras Criminal Procedure. LexisNexis

Police Act 19 of 1990