Well-defined private defense and its contribution to security

By Zechariah Manyok Biar

January 12, 2011 — In the first part of this article entitled, “Security for citizens: Will it be better in the independent South Sudan?” I argued that the threat to police from those who use violence to defend their illegal activities and the wrong application of law by judges have rendered our police fearful and powerless. In order for security to be better for citizens in the independent South Sudan, private or self-defence must be clearly defined and taught to judges, citizens, and the organized forces.

Right to self-defence is provided in Article 40 of “The Penal Code Act 2008.” Not only does this Article give the right to self-defence to individual under attack, it also extends it to the defence of another person under threat as well as properties.

It seems that Cpl. Majok mentioned in the first part of this article was used as a sacrificial lamb to calm the relatives and friends of the deceased from taking the law into their own hands. Even if Cpl. Majok and his men were doing their legal duties when they unintentionally killed an innocent civilian far away from the scene of the robbery, the judge reasoned that it would be better to sacrifice three and save unknown number of people that would be killed as the result of Cpl. Majok’s unintended action.

This kind of reasoning is faulty even though it is widely practiced in Southern Sudan. It violates the principles of justice. Cpl. Majok was doing his official duty even though his defence for property resulted in the death of an innocent person. It is unjust to sentence him to death without considering the intention of the act. Not every tragic action constitutes a crime. Philosophers differentiate a harm done as an end to a particular goal from that of the side effect of an action. The death of the civilian was a mere side effect of Majok’s action, not an end to a particular goal. Our legal system must put these differences into consideration if our police are to provide security without fear in the independent South Sudan.

In my argument above, however, I have not mentioned that Article 42 of “The Penal Code Act 2008” stipulates that “The right to private defence shall, in no case, extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence.” That means Cpl. Majok’s right to private defence exceeded its lawful limit because it not only caused harm but also death to an innocent civilian.

That argument is true of the individual defending himself or herself in a situation where there is a “time to have recourse to the protection of the public authorities” as mentioned in Article 43 of the same law. But police is the public authority. So they are entitled to the protection of themselves and others under any condition. Therefore, Cpl. Majok is not guilty.

Article 46 of “The Penal Code Act 2008” clearly shows that Cpl. Majok is not guilty of causing death even if the killing was intentional, and it was not intentional. In this Article, private defence extends to causing death if the act to be repulsed includes robbery, house-breaking, among others. Cpl. Majok and his men fired warning shots to scare away robbers. Why were they sentenced to death for having caused death? The possible answer is: lack of legal expertise from the judge.

To avoid the above situation from repeating itself, the above mentioned Articles of “The Penal Code Act 2008” must be made known to our judges so that public authorities like the police are protected in their official duties. In the United States, for example, general public is taught that when anybody is stopped by the police, he or she should not put his or her hands in his or her pockets. Doing so would tell the police that you are a threat to them and they can act in self-defence to the point of causing death. Most of the states in the US have a law that allows the police to kill a person who just scares them.

We can agree that the shooting of a person based on fear of the police cop is taken to extreme. But the US Government believes that the protection of police is important for the improvement of security in the country.

I think we, in the independent South Sudan, need to give our police the right to shoot whoever threatens them. However, Articles like Article 46 mentioned above should be taught to general public so that they know when they commit crimes and try to resist arrest, the police would beat or kill them in self-defence.

The police should also be taught to know when to beat or shoot for self-defence. A person lifting a spear to spear the police personnel is a threat under the law and the police have the right to defend themselves. But the evidence must be clear that the civilian was really trying to harm the police or those who were with the police.

Similarly, when a person points a gun at the police, that person is a threat regardless of whether or not the gun is loaded. The police in this situation should have the right to self-defence. But it should be clear that the person is trying to cock the gun before the police shoot for self-defence.

The police can respond to a situation according to the level of threat. For example, when a person is trying to shoot the police and the police have the ability to break the arm of that person so that he cannot hold the gun and shoot, that would be a better choice for self-defence than killing the person. If the person has decided to surrender after threatening the police, the police do not have the right to torture him or her. Arrested person must be innocent until proven guilty.

If the Articles about private defence in “The Penal Code Act 2008” are clearly defined and taught to judges who do not understand them and also taught to our police and the general public, then security for citizens would be better in the independent South Sudan. If not taught, then police would still be threatened, making them fear for their lives and compromise security. A weak security, then, would be a sign of bad governance in the independent South Sudan.

Zechariah Manyok Biar, BA. Edu., MACM, MSSW. He can be reached at [email protected]