ARRESTS1. THE BASICS

2. ARRESTS WITH A WARRANT3. ARRESTS WITHOUT A WARRANT

4. FORM, CONTENTS AND DURATION OF WARRANTS5. CONSTITUTIONAL ISSUES RAISED BY WARRANTS

The BasicsWhich Constitutional right is potentially infringed by arrests?

Look at article 29 of the Constitution. Article 39 could potentially be implicated as well.

An arrest occurs when a person restrains the freedom of movement of another person.

As per section 21 of the CPC is there a limitation on the amount of force necessary to effect a lawful arrest?

What determines whether the force used was reasonable or not? Look at section 24 of the CPC.

Can an arrest be effected without any body contact between the police officer and the suspect?

As per section 22 of the CPC the person effecting the arrest (with or without a warrant) has the authority to search any premises where there is reason to believe that the person to be arrested is therein.

When a person is arrested he may thereafter be searched and all articles found on him with the exception of necessary wearing apparel shall be placed in safe custody. Look at section 25 of the CPC.

As per section 28 this includes all offensive weapons found on the person of the arrested person.

Arrest Without a Warrant: By a police officerSection 29 of the CPC lists situations

where an arrest may be validly executed without a warrant.

What is a cognizable offence? These are offenses for which a police officer may effect an arrest without a warrant. For example, aiding a prisoner of war to escape, riot, offences relating to judicial proceedings, rape, indecent assault etc..

Is there any situation where a person who has committed a non-cognizable offense can be arrested without a warrant? Look at section 32 of the CPC.

As per section 33 of the CPC a person arrested without a warrant must be brought before the relevant magistrate without unnecessary delay.

Arrest without a warrant: By a private individualIn what situations may a private person

arrest another? Look at section 34 of the CPC. The section vests authority to arrest in private persons where:

i. A cognizable offense has been committed

ii. Where a felony has been committediii. The owner of property may arrest any

person who commits an offense resulting in injury to his property.

A person arrested by a private individual without a warrant must be handed over to a police officer without unreasonable delay. The Police may then rearrest the person or release him if there is no sufficient reason to believe that he has committed an offence. Look at section 35 of the CPC.

If the police choose to rearrest the individual section 36 of the CPC allows them to release the person upon execution of a bond if the offense in question is not of a serious nature.

As per section 40, police are authorized to arrest (without a warrant) any person who escapes from lawful custody.

If a private individual uses unreasonable force in arresting a suspect and in the process causes the suspect’s death, he is liable to be prosecuted. In Uganda v. Muherwa a private person used a weapon to incapacitate the deceased who was suspected to be a thief in the course of which he died. As a result the person was prosecuted and convicted of manslaughter.

In Beard and another v. R the appellants, acting in their private capacity as private individuals arrested the complainant and tied him up although he had made no attempt to escape. They delayed handing him over to the police as a result of which the complainant suffered injuries. consequently the appellants were prosecuted on charges of assault and wrongful confinement and convicted for using unnecessary force.

Arrest without a warrant: By a magistrateSection 38 and 39 of the CPC provide that where an offence is committed in the presence of a magistrate he may himself arrest the offender or order any person to arrest the offender.

Apprehension ReportsAs per section 37 of the CPC officers in

charge of police stations are required to furnish a report of all persons arrested without a warrant within the limits of their respective stations to the nearest magistrate. These reports are intended to curb arbitrary arrests and ensure that citizens are not deprived of their liberty other than with just cause.

Arrests with a WarrantA warrant of arrest is a written order

issued by a magistrate for the apprehension of a person who fails to appear in court at an appointed time and in relation to an offense committed by him. Look at sections 100 and 101 of the CPC. Note that no warrant shall be issued unless a complaint has been made under oath.

As per section 104 a warrant may be directed to a particular police officer, generally to all police officers in the area or to any persons where no police officer is immediately available.

Section 105 provides that a warrant of arrest may be directed to a landholder where an escaped convict or a person who has committed a cognizable offense enters on his land.

Where a person is being arrested pursuant to a warrant, it is mandatory that the person executing the warrant notify the person of the substance of the warrant and if so required show him the warrant. Look at section 107 of the CPC.

Form, Contents and Duration of a warrantLook at section 102 of the CPC. What

are some of the requirements that must be met for a warrant to be formally valid?

i. Signature of the magistrate issuing itii. Seal of the courtiii. Name of the person (s) to whom it is

directediv. Summary of the offense

v. Name or description of the person to be apprehended

vi. It must order the person or persons to whom it is directed to apprehend the person against whom it is issued and to bring him before the court.

A warrant remains in force until it is executed or until it is cancelled by the court which issued it.

Section 103 allows the court issuing the warrant to include on the warrant an endorsement allowing the person to be released from custody upon executing a bond with sufficient sureties. This is only possible for offenses other than murder, treason or rape.

The endorsement shall state:i. The number of suretiesii. The amount in which they and the

person for whose arrest the warrant is issued are to be respectively bound

iii. The time at which he is to attend before the court

Where the court issuing the warrant lacks or exceeds its jurisdiction the defect can be cured by taking it for endorsement to a magistrate within the local limits of whose jurisdiction it is to be executed. Look at sections 110, 111 and 112 of the CPC.

Irregularities in warrantsWhat happens when there is an

irregularity in the warrant? Will this affect the validity if the proceedings?

Look at section 113 of the CPC. Where the court is satisfied that the accused has been deceived or otherwise misled it may adjourn the hearing of the case to some future date.

Constitutional issues raised by arrestsWhat are the rights of an arrested

person as per article 49 of the Constitution?

The police practice of indiscriminate arrests and confinement of all persons who may be connected, however remotely, with a criminal investigation has been strongly deprecated by the courts.

The most common issue raised in this regard is situations where an accused person is detained for longer than the expected constitutional period without reasonable justification.

What remedy is suitable in these cases? an order for compensation or an acquittal of the accused?

Who should bear the burden of explaining the delay? Is it the prosecution or the accused person?

In Murunga v. R the court stated, “Under section 72(3) of the Constitution, the burden to explain the delay is on the prosecution, and we reject any proposition that the burden can only be discharged if the person accused raises a complaint.”

In Albanus Mutua v. R the court identified the following examples of what might amount to an acceptable explanation for the delay:

i. Accused person falls ill upon arrest and is admitted and kept in hospital in excess of the period allowed

ii. Accused person is arrested on a Friday evening and has to wait till Monday to be brought to court

iii. The court house was far from the police stationiv. The station vehicle broke down or had no fuel

Some courts have come out strongly in favor of declaring the prosecution a nullity and releasing accused persons where the delay cannot be satisfactorily explained by the prosecution. For example, see the case of Ann Njogu and 5 others v. Republic.

However, this is a position that has not found traction with most courts preferring giving of compensation in such cases rather than allowing the accused to walk away scot free.

In Republic v. Amos Karuga Karatu the court held that even if it was found that the extra judicial detention was unlawful, they would have “considered an acquittal or discharge was disproportionate, inappropriate and draconian as a remedy since public security would be compromised.”

Look at the following cases:i. Julius Kamau Mbugua v. Republic (2010)

Eklrii. Hussein Khalid and 16 others v. Attorney

General and 2 others (petition no. 324 of 2013).

iii. Republic v. Dickson Mwangi Munene and Alexander Chepkonga Francis (criminal case 11 of 2009)

iv. Lucas Omoto Wamari v. Attorney General and DPP (petition no. 294 0f 2012)