In view of the ongoing investigation into the recent incident, it would be inappropriate to draw conclusions on the facts or the conduct of any person involved. Such matters must be left to the competent investigating authorities for an independent, impartial and thorough examination. The sole objective of this analysis is to promote public awareness of the applicable law, the limits of police powers and the fundamental principles of accountability and the rule of law, without in any way prejudicing the ongoing investigation.

1. Fundamental legal principles

The use of firearms by members of the Mauritius Police Force is governed by the Constitution, the Police Act, the Criminal Code and the Police Standing Orders, particularly Standing Order No. 108, entitled Use of Arms by Police. The fundamental principle is that police officers do not enjoy an unrestricted right to discharge firearms against citizens. Every use of potentially lethal force must have a lawful justification, and its necessity and proportionality must be examined in light of the circumstances. Equally important is the institutional independence of an investigation into allegedly unlawful police conduct.

There is a particularly significant statutory provision supporting your concern. Section 10(2)(c) of the Independent Police Complaints Commission (IPCC) Act 2016 provides that, where a written complaint against a police officer is made to another police officer in respect of conduct in the discharge of police functions, it must be forwarded to the Commissioner of Police, who must transmit it to the Commission within two days and must not investigate further into the complaint.

It offers a strong foundation for arguing that a complaint about police use of firearms should not simply be left for internal police investigation, particularly where investigating officers could themselves become witnesses, suspects or otherwise implicated parties.

2. Constitution and Criminal Code: when may police use potentially lethal force?

A. Section 4 of the Constitution

Section 4(1) protects the right to life. Section 4(2) recognises limited circumstances in which a death resulting from the use of force may not constitute a constitutional violation, provided that the force was permitted by law and reasonably justifiable.

These circumstances are:

1. Defence of a person against violence, or defence of property.

2. Effecting a lawful arrest or preventing the escape of a lawfully detained person.

3. Suppressing a riot, insurrection or mutiny.

4. Preventing a person from committing a criminal offence.

These are qualified grounds, not automatic authorisations to shoot. The legality and degree of force must be assessed in every case.

B. Section 245 of the Criminal Code as amended

The Criminal Code (Amendment) Act 2025, Act No. 11 of 2025, replaced section 245 with effect from 12 May 2025. The amended provision, entitled Homicide and wounds and blows under lawful authority, substantially reflects the permitted grounds under section 4(2) of the Constitution. It provides a possible defence to criminal liability only where force is used to an extent and in circumstances permitted by law, and is reasonably justifiable for the specified purposes.

This is particularly important: the police cannot justify a shooting merely by establishing that they were attempting an arrest, preventing an escape or performing an official duty. The prosecution or investigating authority must also examine whether the degree of force used was legally justified.

C. Sections 246 and 247 – self-defence

Section 246 deals with homicide, wounds and blows committed out of an actual necessity of lawful self-defence or defence of another person. Section 247 identifies particular circumstances that may constitute such necessity, including violent robbery and certain nighttime attacks upon inhabited premises. For a police officer invoking self-defence, the crucial issues would include the nature and immediacy of the threat, the available alternatives, and whether the force was excessive.

3. Police Act and Standing Order 108

The Police Act 1974 Section 13F gives power to use necessary force; it should not be construed as a blanket authority to use firearms.

Standing Order 108 – Use of arms by police

The order should be read together with the constitutional and criminal-law limitations, rather than as an independent source of immunity from liability. An investigation should therefore establish the instructions in force at the time of the incident, including the applicable authorisation, warning, command, reporting and firearm-handling requirements.

4. How should the legality of a police shooting be determined?

Even where a police officer relies on a lawful ground, the following questions become central:

• Necessity: Was the discharge of the firearm genuinely necessary, or could the danger have been addressed through less harmful means?

• Proportionality: Was the degree of force proportionate to the threat reasonably perceived?

• Immediacy: Was there an imminent danger to the officer or another person?

• Warning: Was a warning given where practicable and safe?

• Accountability: Who authorised the deployment, who discharged the firearm, and were the applicable procedures followed?

A fleeing suspect, an unarmed person refusing arrest, or a person merely disobeying police instructions cannot automatically be subjected to gunfire. The particular circumstances must justify that level of force. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, especially Principles 9 and 10, provide important additional guidance.

5. The statutory jurisdiction of the IPCC

The Independent Police Complaints Commission Act 2016 provides substantial support for independent scrutiny. Section 16 specifically permits the Commission, after investigation, to refer matters to the Director of Public Prosecutions, the Disciplined Forces Service Commission or the Attorney-General, as appropriate.

6. Why an investigation by potentially implicated police officers raises serious legal concerns

The principle of independence requires more than the personal integrity of individual investigators. An investigator may be conscientious and professionally competent yet lack the necessary institutional independence where the persons under investigation belong to the same operational structure or chain of command.

In a shooting incident, the investigation may extend beyond the officer who pulled the trigger to include:

• Senior officers who planned or authorised the operation.

• Officers who gave instructions or exercised operational command.

• Officers who witnessed the shooting or handled relevant evidence.

• Officers whose actions or omissions may have contributed to the incident.

If those responsible for gathering evidence are themselves potentially subject to examination, there is a serious risk of actual or apparent conflict of interest. The investigation must examine not only the final act of firing the weapon but also the planning, control and execution of the operation.

7. What should happen when a complaint has been lodged with the IPCC?

Where the complaint concerns allegedly unjustified police gunfire, the following approach would protect both the integrity of the investigation and the rights of all parties.

1. The IPCC should assume responsibility for investigating the complaint within its statutory jurisdiction, independently of officers implicated in the allegations.

2. All relevant evidence should be secured immediately, including firearms, spent cartridges, ballistic reports, CCTV recordings, police communications, operational orders and medical evidence.

3. Officers who may be implicated should have no control over the collection, selection or assessment of evidence concerning their own conduct.

4. Independent forensic experts should be engaged where necessary, with particular attention to trajectories, distances, ammunition and the circumstances of discharge.

5. The Commission should assess the entire command structure and examine whether the use of force complied with Standing Order 108, the Police Act, Criminal Code section 245 and constitutional section 4.

6. Where criminal conduct may be disclosed, the evidential material should be considered for referral to the DPP under section 16.

A distinction remains necessary between the IPCC's statutory complaint investigation and any separate criminal investigation. Police may still have lawful duties relating to emergency response, crime-scene preservation and the investigation of offences. Nevertheless, potentially implicated officers should not control inquiries into their own conduct.

Conclusion

The discharge of firearms by police officers against members of the public constitutes an exercise of potentially lethal State power which must be subjected to the strictest legal scrutiny under section 4 of the Constitution, sections 245 to 247 of the Criminal Code, the Police Act and the applicable Police Standing Orders, particularly Standing Order 108. It would seriously undermine public confidence in the administration of justice if officers who participated in, supervised or may otherwise have been implicated in the operation were permitted to exercise control over the investigation of the very incident in which their conduct may be questioned.

The statutory powers entrusted to the Independent Police Complaints Commission must be exercised effectively and independently. Any criminal investigation conducted in parallel must be structured so as to avoid conflicts of interest, preserve the integrity of evidence and maintain the confidence of the public and the victims concerned.

The rule of law requires not only that police officers be held accountable for any unlawful exercise of force, but also that officers who acted lawfully be protected by a credible, objective and impartial determination of the facts. Justice must not only be done; the process by which the truth is established must command public confidence.