THE most important difference between our constitutional democracy and the apartheid regime is the value system that underpinned the respective regimes.

THE most important difference between our constitutional democracy and the apartheid regime is the value system that underpinned the respective regimes.

Unlike the apartheid regime that demeaned human dignity, the value system contemplated in the Constitution is one founded on the inestimable value of human dignity.

The proposals by Police Minister Nathi Mthethwa that police should be given enhanced power to shoot; the encouragement of the National Police Commissioner Bheki Cele, not to shout to suspects to drop their guns, but to rather "shoot to kill"; and the support of President Jacob Zuma to legitimise increased use of force by amending section 49 of the Criminal Procedure Act, should be viewed with caution.

Section 49 currently provides for the use of force by an arrester in effecting an arrest in order to overcome the suspect's resistance against arrest or flight from being arrested.

Although details of the proposed amendment are still unknown, any change to the existing limitations on the use of force is unlikely to pass constitutional muster.

The constitutionality of the use of force and in particular deadly force in effecting an arrest, have already been considered by the Supreme Court of Appeal and the Constitutional Court.

In considering the constitutionality of sub-section 49 (1) in Govender v Minister of Safety and Security, the SCA concluded that the proportionality of force to be permitted in arresting a fugitive had to be determined not only by the seriousness of the relevant offence, but also by the threat or danger posed by the fugitive to the arrester and to society.

This interpretation was subsequently endorsed by the Constitutional Court in ex parte Minister of Safety and Security and others in the State v Walters and Another where the court found that the use of deadly force against fleeing persons suspected of having committed a wide range of crimes in order to overcome resistance or to prevent flight violated their rights to life, human dignity and bodily integrity.

It found that the limitation to those rights was neither reasonable nor justifiable.

The court firstly emphasised the centrality of the right to life, to human dignity and to bodily integrity to the very existence of our society stating that those rights "are individually essential and collectively foundational to the value system prescribed by the Constitution. Compromise them and the society to which we aspire becomes illusory."

The court also emphasised that to arrest was not an objective in itself, but merely an optional means of bringing a suspected criminal before court.

It correctly pointed out that given our history of violence - personal, political and institutional and the present levels of violence - the State should set an example and d demonstrate that it was serious about the human rights the Constitution guaranteed for everyone, including suspected criminals.

Accordingly, the court concluded that an Act authorising police to use force "in the performance of their public duties where it may not be necessary or reasonably proportionate, was both socially undesirable and constitutionally impermissible".

Much of the "shoot to kill" rhetoric has been fuelled by the mistaken belief that the section deals with the right of police to defend themselves against armed criminals.

The arguments that the current section 49 endangers the lives of police in the line of duty are equally flawed.

While South Africa's rate of police killings is unacceptably high (on average 235 killed a year between 1994 and 1999), about 64percent of these officials were in fact killed off-duty.

In contrast is the high number of people who are injured or killed by the members of the SAPS. According to the Independent Complaints Directorate police shot dead more suspects since last year to April this year than in any other year over the past decade.

Figures tabled in Parliament in June reveal that 556 suspects, including 32 innocent bystanders, were shot and killed by police between April last year and March 31 this year.

This means that any encouragement of a violent response will not necessarily afford the police added protection against suspected criminals, but will in fact greatly increase the risk to innocent bystanders. International research shows that violence begets violence, and more importantly the converse that "where the police have cut back in the use of firearms, criminals have tended to follow suit in their interaction with the police."

The solution is not thus to encourage more violence or to amend section 49. The Constitutional imperative contained in section 205(3) that "the objects of the police are to prevent, combat and investigate crime ." places a corresponding duty on the State to ensure that the police are equipped with the necessary skills and infrastructure.

If our leaders are serious about beating crime, they should set a non-violent example by rather ensuring that our police are properly trained and equipped.

lDe Havilland is the director of the Centre for Constitutional Rights