A glaring lacuna in the judgment of Justice Bosire in the reservist case was the failure to consider the conduct of Arvinderjit Singh during the fatal incident. It is a largely held view in the legal circles that if the judge had done so, he would have found Arvinderjit liable for manslaughter.
During the meeting of the council of the Law Society of Kenya held on March 20, 1995 at the Professional Center at 10:00 a.m. under the chairmanship of Paul M. Wamae, the new LSK chairman, the council reviewed this case and came to the conclusion that: “…Mr. Justice Bosire’s judgment was wrong that there was not sufficient evidence for the conviction for manslaughter.”
If one looks at the fatal incidence from the very beginning, one sees a definite unreasonable and excessive reaction on the part of Arvinderjit. He was in his car and he saw three boys trying to pry out the signal light from Mr. Githigia’s car.
He then decided to make an arrest. He had not seen any knife and therefore when he began his chase it was to his mind against an unarmed street boy. The presumption that he thought Kanambiu to be unarmed is based on the fact that he was “badly shaken” when Kanambiu turned against him and he saw the knife in his hands.
That being so, Arvinderjit armed himself with a sub-machine gun with a firing range of 200 metres and chased Kanambiu with it. While he chased, he fired into the air warning Kanambiu that he intended to shoot him. This reaction suggests very strongly that Arvinderjit intended to shoot Kanambiu from the very beginning.
Or is it reasonable? Is it reasonable for a trained policeman to find it necessary to use a sub-machine gun to arrest an unarmed boy? Wasn’t the danger of using a rapid-fire option gun in the circumstances apparent to Arvinderjit as a trained police officer, or is it that he didn’t care or was reckless whether the danger existed or not.
What was the point of firing into the air? Isn’t that an indication of intention to use the fire arm? If it was for the purposes of scaring Kanambiu to stop, then isn’t it an unreasonable and excessive action in the circumstances.
If we look at this course of action in the light of the Police Act, it still emerges as an unreasonable and excessive one. At the time that Arvinderjit was shooting in the air, Kanambiu was lawful custody charged with a felony and was not by force resisting arrest.
Only when the person escaping is in lawful custody charged with a felony can the police officer fired warning shots alerting the convict of the intention to use the firearm. On what basis and in reliance of which right did Arvinderjit shoot into the air? S.28 of the Police Act does not grant any general powers to police officers to shoot into the air to scare persons defying stop orders.
It only gives those powers that were mentioned in Part 1 of this article. There is therefore only one reasonable presumption about Arvinderjit’s behavior that evening: He was trigger-happy.
The events then developed to the point where Kanambiu drew a knife. Arvinderjit shot twice and missed. Kanambiu then ran again. Arvinderjit followed. Again, Arvinderjit’s reaction cannot be justified.
He says he was “badly shaken” when he saw the knife. That is why he shot. But why did he pursue the boy beyond this point. To effect the arrest? If so, we again must judge the reasonableness of his behavior we must ask the first question whether it was necessary to shoot to effect the arrest.
In the light of the evidence that Kanambiu was armed, we must come to the conclusion that it was. The second question is whether the evil that would have followed from failure to arrest Kanambiu was so great that it was justified to take away Kanambiu’s life to avert that evil.
Which was the greater of the two evils; obviously, whatever evil Kanambiu represented to society at that time, it did not justify taking away his life. It was therefore not justified, and in fact a use of excessive force, for Arvinderjit to pursue Kanambiu to the point where he had to shoot him.
Having realized that it may become necessary to shoot the boy, and having already attempted to do so, Arvinderjit should not have pursued the boy beyond this point. Allowing him to escape was clearly the lesser evil.
But that position was further complicated by the plea of self defence. As stated earlier, the counsels for Arvinderjit were relying on the right to shoot as policeman and the right to protect himself. Judged together, one cannot get a fair answer because the rules governing the two defenses are different.
Self-defence carries with it a duty to retreat. Arvinderjit did not retreat. Even after he had seen the danger he was in, he jumped into it. He saw the knife and escaped an attempt to stab him.
Yet he went after the boy, pushing the fight, putting his life more in danger. Could he then later be allowed to say that he killed to save his life? Why didn’t he save it in the first place by leaving the fight as the law required of him?
But the two defenses were pleaded in such a way that one came to fill in the gaps of the other. The duty of a policeman came to fill in the gap of his failure to retreat and the right of private defence came to fill in the gap of his failure to arrest with reasonable force.
It was therefore imperative that the judge should have required the defence to elect which of the two defenses it was relying on. And whichever of the two defenses, Arvinderjit would have elected; it standing alone should have failed.
There was a lot more evidence at the trial that would have helped the courts determine the guilt of Arvinderjit but the prosecution witnesses were found not to be reliable. There was evidence that Kanambiu was shot while in the gutter. There was evidence that the accused spat on Kanambiu and, according to his friends, said “you stupid African”. But the judge said that all that evidence was unreliable.
The acquittal of Arvinderjit Singh Chadha should be understood in this sense. For there are judges who would have had little problem convicting him for murder. And that would still be justice.