Self-defence by police officers: ought there to be guiding principles?

By Newton Arori

Self-defence is a legal doctrine to the effect that a person may use reasonable force to defend himself, another person, or property. It justifies the use of force in those instances with the result that if successfully argued, the doctrine says that the person’s actions (the use of force) were not criminal. But does the question of what constitutes ‘reasonable force’ – on the use of firearms by the police – depend on an objective test or a subjective test? Put differently, is the court to be guided by a set of rules, the peculiar circumstances of the accused officer, of a blend of both? That is the question this piece seeks to address. It will do so by an analysis of two Court of Appeal cases with a similar set of facts but which gave rise to different decisions.

First is the case of Republic v Ahmed Mohammed Omar& 5 others (2012) eKLR. It involved police officers who had been jointly convicted of murder. The background facts were that on the material night, when the officers were on patrol duty in Kawangware, a dispute arose nearby between motor cycle operators and taxi operators. Apparently the feud was because of the relatively low fares that were being charged by the former. After the two groups failed to resolve their differences, the taxi operators attacked the motorcycle operators who in turn raised an alarm. In reaction, the police officers identified themselves and fired twice in the air-as a warning. But the attackers did not disperse; they instead confronted the officers. The taxi drivers were not armed with any lethal weapons, only a wooden toy pistol which the officers allegedly mistook for a gun. At this point, the police officers opened fire at the taxi drivers, injuring them fatally.

The officers were charged with murder at the High Court, where they were convicted of the offence and accordingly sentenced to death. The trial judge (Justice Ochieng) held that the accused had not shown that the killing of the taxi drivers was the only way of preventing harm. The officers appealed.  There, they argued that they were empowered by law (after giving due warning) to use firearms when they had no alternative ways to prevent crime. In this particular case, the officers contended that they gave two warnings by firing into the air, hoping to disperse the mob. However, the mob did not disperse but continued to approach the officers, leading them to conclude that their lives were in danger.

The appellants further justified the use of their firearms by the fact that, at the time, there was a person crying out, pleading with the mob (of taxi drivers) not to kill him and therefore in need of protection. They also needed to act to prevent the destruction of motorcycles and protect the boda boda operators whose lives were evidently in danger.

The appellants insisted that they only used such force as was necessary for self-defence and could not therefore, in the circumstances, be guilty of murder.

The Court of Appeal mainly addressed itself to the question of whether the accused officers, in the circumstances, were justified in the use of firearms.

The learned judges of the Court of Appeal cited Section 17 of the Penal Code which, regarding defence of person or property, provides as follows: “Subject to any express provisions in this code or any other law in operation in Kenya, criminal responsibility for the use of force in defence of person or property shall be determined according to the principles of English common law.”

The court then went on to expound on the current common law position regarding the defence of self-defence. In this regard, the court cited the classic English case of DPP v Morgan (1975)2 ALL ER 374 in which the English House of Lords held: “If the [accused] might have been labouring under a mistake as to the facts, he was to be judged according to his mistaken view of facts, whether or not that mistake was, on an objective view, reasonable or not.”

On that basis, the Court of Appeal held that the accused persons had been wrongly convicted by the High Court. This was because of the circumstances in which the accused officers found themselves in. “The shoot-out occurred at night when there was no proper visibility,” the judges held. “In recent days when so many police officers are being killed in the line of duty by armed criminals, the appellants could have reasonably believed that their lives were in danger and decided to open fire.”  The court continued: “The appellants were on patrol duties at night in an area that is famous for criminal notoriety at night. They fired twice in the air…undeterred by the warning shots, the deceased confronted the appellants. We believe that in the circumstances, the appellants reasonably believed that their lives were in danger.”

For the foregoing reasons, the court quashed the conviction of the accused persons and set them free. The judges established that self-defence depends on a subjective test, not an objective one. Since the accused reasonably believed they were in danger, (whether or not they were actually in danger) they were justified in using their firearms.

The above case is strikingly similar to the case of IP Veronica Gitahi &Another v Republic (2017) eKLR.  Here the accused were also police officers accused of murder. They had been convicted accordingly and sentenced at the High Court and appealed to the Court of Appeal.

The officers tried to justify the shooting of the deceased on grounds that they believed they were under attack. The area they were patrolling is notorious for murders, it was a dark and rainy night and previously, a police officer had been attacked in the area and robbed of her firearm, the appellants argued. They further submitted that the defence in self-defence is subjective rather than objective and that in this case, the appellants believed they were in danger, thus the use of force was justified.

But unlike the case in Ahmed Mohammed Omar, the court rejected that line of defence outright. The judges stated, “As is patently clear, the application of the principles of common law regarding the defence of self-defence in Kenya is subject to any express provision in the Penal Code or any other law in operation in Kenya.”

Thus, it was the court’s finding that where there are express laws in Kenya regarding self-defence, and that those laws will apply instead of the common law. Further, the court held that both the Constitution and the National Police Service Act are relevant laws in this regard.

Under Article 238 (2) (b) of the Constitution, national security is to be pursued in compliance with utmost respect for human rights.

On the use of firearms, the National Police Service Act stipulates that firearms may only be used when less extreme means are inadequate for self-defence. The Act also requires a police officer to make every effort to avoid the use of firearms.

Regarding the above statutory provisions the judges stated, “In our view, in light of the provisions of the National Police Service Act regarding the use of firearms by the police in self-defence, there is no room for invoking Section 17 of the Penal Code and applying the principles of common law on self-defence. The provisions of the Act are a complete and exhaustive code.”

The court further noted, “To determine whether a police officer has used force or a firearm as required by the Act therefore cannot be a subjective issue. The court must evaluate all the circumstances surrounding the use of firearm so as to determine, for example, whether the force was used as a last option, whether it was proportionate to the threat that confronted the police officer…”

In sum, the Judges of Appeal dismissed the appellant’s appeal and upheld the conviction and sentencing of the High Court.

Which of the two verdicts – Ahmed Mohammed Omar and Veronica Gitahi – is legally sound?

The answer to this question lies in Section 3 of the Judicature Act. It states, “The jurisdiction of the High Court, the Court of Appeal and all subordinate courts shall be exercised in conformity with (a) the Constitution (b) subject thereto, all other written laws (c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law…”

In hierarchy therefore, written laws (statutes) are a rung above the principles of English common law. English common law is subject to statutes, not the other way round.

The approach in Veronica Gitahi must therefore be the correct approach. With respect, the decision in Ahmed Mohammed Omar was misguided, as, at the time, the National Police Service Act was in force.

The idea that statutes should take precedence over English common law are sound philosophy. First, statutes are enacted by members of parliament, who are the direct representatives of the people – the sovereign. Second, since statuses are home-grown or enacted locally, they are better suited to address Kenya’s unique situations.  .^