Shoot-to-kill policy outside armed conflict violates right to life

By Sylvie Namwase

In a quite interesting development this week, the Uganda Police announced that it had reintroduced a method of operation which allows its security personnel to shoot to kill suspected robbers on sight.

The move was further justified on the basis that the Police is mandated by law to “put people who are found with guns out of action”.

Indeed the Police Act mandates the Uganda Police Force to put all suspected offenders “out of action” using its powers of search, seizure, arrest or detention. In restricted circumstances, it may resort to the ‘use of arms’, for instance where a person, through force, prevents the lawful arrest of herself or himself or another person. 

However, even where such is the case, officer s must use only such force as is reasonable in the circumstances.  Nowhere does the Act define ‘use of arms’ as power to “shoot to kill” suspected criminals.

Such an interpretation runs manifestly counter to restrictive powers granted by the Act and offends the Constitutional guarantees to life and fair trial.

It undermines the presumption of innocence and reverses the cycle of the criminal justice system, which begins with Police investigations and arrest and ends with an acquittal or conviction and sentencing by the court. 

By shooting to death persons who have not gone through the full judicial process, the Police would be acting as accuser, adjudicator and executioner, undermining the separation of powers, which is a fundamental principal of the rule of law.

Moreover, under Uganda’s Constitution, one’s life may only be taken away intentionally in execution of a sentence passed in a fair trial and confirmed by the highest appellate court. 

A policy to shoot to kill suspects would certainly be an intentional killing executed without prior court hearing and sentencing, and would be a violation of the right to life.

Indeed, this provision on the right to life under the Constitution further affirms that shoot to kill powers for Police cannot be read into the Police Act without rendering the relevant section unconstitutional, and as such, null and void. 

Lastly, but also very importantly, to ply the shoot to kill policy within the Police Forces would be akin to introducing into a purely law enforcement context, standards of use of force which apply during armed conflict situations.

As already illustrated above, human rights law clearly presents a very high threshold of protection for the right to life. Indeed this right is one of those that cannot be derogated from by a state even during times of emergency.

However, during situations of armed conflict, a different set of rules known as International Humanitarian Law (IHL), sometimes referred to as the laws of war, delineates categories of persons who are protected from attacks, and outlines their fundamental guarantees. 

Under IHL, persons who are directly participating in an armed conflict may be targeted and killed as “lawful military targets.” Members of the military armed forces or members of armed groups may fall under this category.

The background of the “shoot to kill” move against suspected robbers in Uganda, clearly presents a law enforcement dilemma and not an armed conflict situation in which the suspected robbers can be marked out as lawful military targets.

They remain civilians suspected of breaking the law.

The Uganda Police should, therefore, play its law enforcement role within the parameters of the Constitution and the Police Act, and avoid stretching into other legal regimes such as IHL that could water down the fundamental guarantees that apply to the country’s current context. 

The writer is an independent researcher of International Human Rights and International Humanitarian Law