by Muheirwe Nivah Kelly, ABM Associate Attorney

 

No one can legally be arrested in Uganda without reasonable suspicion of crime. However, police often make arrests without any evidence to back it up. These types of arrest are unconstitutional and illegal. This article will explain what constitutes a legal arrest and how Ugandan criminal procedure protects a person arrested of an alleged crime.

 

GROUNDS FOR ARREST

 

Arrest is the taking or keeping of a person in custody by legal authority (see Black’s Law Dictionary 8th Edition). Article 23 of The 1995 Constitution of the Republic of Uganda states that no person shall be deprived of personal liberty. This right, however, is not inviolable. The right to personal liberty can be lifted in several cases:

 

1. In execution of the sentence or order of a court, whether established in Uganda or another country or from an international court or tribunal in respect of a criminal offence of which that person has been convicted, or of an order of a court punishing the person for contempt of court; or

 

2. In execution of the order of a court made to secure the fulfillment of any obligation imposed on that person by law; or

 

3. For the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda; or

 

4. For the purpose of preventing the spread of an infectious or contagious disease

 

Basically, any person reasonably suspected to have committed a crime/offence, is about to commit an offence under the laws of Uganda or is arrested during execution of an order of a court, may be arrested in Uganda.

 

WHO CAN INSTITUTE CRIMINAL PROCEEDINGS IN UGANDA?

 

Ordinarily, the mandate of arrest is given to the police. A police officer has authority to arrest a person with or without a warrant of arrest and bring him or her before court. On the other, a public prosecutor or a police officer preferring a charge against an accused person before a magistrate may request a warrant of arrest or a summons.

 

Even a private person may file a complaint and apply for the issue of a warrant of arrest or a summons if he or she has reasonable cause to believe that an offense has been committed. A private complaint may be made orally (and then reduced into writing by the magistrate) or in writing signed by the complainant to a magistrate who investigates the presumed criminal offence. The magistrate will then confirm if he or she decides that a prima facie case has been alleged and that the offence is not frivolous or vexatious. In deciding this, the magistrate may consult the authority of the area to be assured of the truthfulness of the complaint.

 

ARREST WITH WARRANT

 

The court may issue a warrant for the apprehension of a person against whom a charge has been preferred. The purpose of the arrest is to answer to the charge mentioned in the warrant.

 

The valid warrant of arrest must have the following:

 

1. It must state the offence

 

2. It must have a name and description of the person suspected

 

3. It must be mandatory in nature by giving the order to apprehend the person.

 

ARREST WITHOUT WARRANT

 

Section 23 of the Police Act provides for arrest without a warrant. It provides that a police officer may, without a court order and without a warrant, arrest a person if he or she has reasonable cause to suspect that the person has committed or is about to commit an “arrestable offence.” An “arrestable offence” means an offence which on conviction may be punished by a term of imprisonment of one year or more, or a fine of not less than one hundred thousand shillings or both.

 

A police officer making an arrest without a warrant must take or send the person arrested before a magistrate or before an officer in charge of a police station. Any unnecessary delay is illegal. See The Criminal Procedure Code Act, CAP 116, section 14.

 

Section 10 of The Criminal Procedure Code Act CAP 116 lists the different grounds to arrest a person without warrant.

 

ARREST BY A PRIVATE PERSON

 

Any private person may arrest any person who in his or her view commits a cognisable offence, or whom he or she reasonably suspects of having committed a felony. Additionally, persons found committing any offence involving injury to property may be arrested without a warrant by the owner of the property or his or her servants or persons authorised by him or her. See Section 15 of the Criminal Procedure Code Act.

 

DISPOSAL OF PERSON ARRESTED BY PRIVATE PERSON.

 

Any private person who arrests any person without a warrant must turn over the person to a police officer. Any unnecessary delay is illegal. If there are no police officers available, the person must take the arrested person to the nearest police station. If the police do not find any sufficient reason to believe that he or she has committed any offence, the arrested person must be released immediately. See Section 16 of the Criminal procedure code Act.

 

DISPOSAL OF A PERSON ARRESTED BY A POLICE OFFICER

 

When a police officer arrests a suspect without a warrant, he is required to bring the suspect before a magistrate’s court within forty-eight hours unless the suspect is earlier released on bond. However, this does not apply to a person who is arrested in one police area and is not to be questioned within that same area. Seven days are allowed for the transfer to the area where the offense was committed. If the police do not comply with these rules, any person may apply to the magistrate within twenty-four hours, and, unless he or she is being charged, the magistrate must order his or her release. See Section 25 of The Police Act.

 

Therefore, Ugandan law provides for a limitation period regarding detention of a suspect up to 48 hours. Ordinarily, this means that upon arrest, a person must be brought before court within 48 hours and if not should be released from custody.