Self defence and why it’s a knotty issue in criminal law

The verdicts in two criminal cases in the United States of America, which came within the last fortnight, have gripped the world, and especially, civil rights activist and persons interested in general criminal law on the scope of self defence as a defence to murder.

The first of those cases was the trial of 19-year-old Kyle Rittenhouse for murder. He killed two men and seriously injured a third in 2020 during the Black Lives Matters protests in Kenosha County in Wisconsin. 

The incident arose during protests following the two separate killings of George Floyd and Breonna Taylor by police under circumstances that indicated that the victims were killed mainly due both having been black. When protests arose from this, another black man was shot several times, and more protests arose in Wisconsin.

Kyle Rittenhouse, who lived in Illinois, crossed states and armed himself with an AR-15 rifle supposedly to protect property by preventing the protesters form vandalising property and looting. On that day, the victims came near where he had stationed himself and in a confrontation with them, Rittenhouse shot three people, killing two of them. Despite the fact that the two victims who were fatally shot were unarmed, Rittenhouse claimed in court that he acted in self-defence after fearing for his life. The jury believed him and on November 19, 2021, Rittenhouse was acquitted.

The other case was the trial of three people for the murder of Ahmaud Arbery on February 23, 2020. Gregory McMichael, his son Travis McMichael and their neighbour William Bryan were charged with the murder. On the date of his death, Ahmaud was jogging when he passed by the home of the McMichaels who decided that the jogger must be the burglar who had been breaking into homes in the neighbourhood.

They armed themselves with guns and jumped into a pickup truck to pursue him. As Ahmaud continued to run while being pursued by the two, he passed by the house of William Bryan who joined the pursuit while recording it on his cellphone. The video shows Travis McMichael blasting his shotgun as Ahmaud threw punches and reached to grab the weapon. Ahmaud was shot three times and died.

Criminal charges

The three were charged with murder and aggravated assault among other charges. They all denied the charges. Travis, the shooter, testified that he shot out of self-defence because Ahmaud turned and attacked him with fists while running. Their argument was that fists are a weapon capable of causing serious harm and the use of the gun was precipitated by that. The jury did not find this persuasive and convicted all the three of murder. They will be sentenced later.

Lay public sentiment would think that it is just that any person who causes the death of another should face criminal charges and retribution for the death. The issue many have been debating is the extent to which a person can use force to kill another in self-defence and get away with it, as lay public view would look at it.

The answer lies in a decision in the legal reasoning that it is both good law and good sense that a man who is attacked should defend himself in a reasonably necessary way to repel the attack. Put simply, the law permits a person to respond with force to repel an attack to the body or to property of another party who intends to or seemingly intends to use violence on the property or physical body of another. In these circumstances, any injury or even loss of life of the attacker cannot attract any criminal liability on the part of the person defending himself if their response was on the whole reasonable in the circumstances.

Where self-defence was considered a defence was in the South African case of Sarah Mugwena against the Minister of Safety and Security. Even though this was not a criminal case, the Supreme Court of Appeal of South Africa had to consider the essence and scope of a plea of self-defence by a police officer who fatally shot another during a patrol.

In that case, Charles Mugwena was shot and killed outside his house when a number of police officers knocked on his door at night. The police claimed that before opening the door, they heard a click that implied the opening of a briefcase. When the door was opened, the homeowner had drawn his firearm and pointed it at one of the police officers. One of the police officers charged and grabbed the man from behind but the latter, who was much stronger, broke free and hit the police officer with his fist before the police officer shot him four times, killing him.

The court, in considering whether this constituted self-defence as to prevent the government from having to compensate the deceased’s family for unlawful killing, said it was not convinced that the deceased, even though armed, but alone, would have constituted danger to the police officers, and specifically, the one who shot him. The court was of the view that none of the police officers’ lives was in imminent danger to justify the fatal response.

Much cited case

In Kenya, the much cited case is that of Andrew Omwenga, a police officer who was charged with killing a man and woman, one of whom had just been elected as a member of the National Assembly. The judge found in that case that faced with two persons who both had guns, the accused was reasonable in the belief that they wanted to kill him and that he was therefore in imminent danger of death or serious physical harm as to justify the action of killing the two as having been in self-defence.

However, the finding was that the accused may have used excessive force in the circumstances and resulted in the judge taking the view that the force was disproportionate and justified the conviction for manslaughter.

Even then, the issue of what is reasonable in any case can be troublesome. This is because the courts have themselves held on the one hand that a person acting in self-defence is not expected to weigh to a nicety on the exact measure of force to use. So that it is possible that even evidently excessive force such as responding with a gun to an attack by a stick would be deemed reasonable if the accused genuinely believed that the stick could harm him seriously.

However, the important issue must be that it must be in defence, meaning that the violence is a response to an attack by another. This means that even though a person does not need to wait to be struck first in order to be acting in self-defence, a person who provokes a confrontation which results in an attack may not be allowed to claim self-defence for a scuffle he ignited. Therefore, an aggressor who starts a fight may not plead self-defence in aid of a charge for causing death or serious harm to another person. It must in the literal sense be in defence of someone who attacked another.

This is why self-defence is a knotty point in law and difficult in criminal trials as it can be literal and simple in word but complex in application.

The author is the head of Legal at Nation Media Group. [email protected]