ARREST AND WARRANT OF ARREST IN UGANDA

Arrest

What is a judicial arrest under Ugandan law?

Arrest refers to the act of apprehending a person in response to an alleged commission of an offence. It is an exercise of the legal authority to deprive a person of her/his liberty.

The police officer or any other person making an arrest shall actually touch or confine the body of the person arrested, unless there is a submission to the custody by word or action.

A judicial arrest may occur:

1. with a warrant of arrest; 2. without a warrant of arrest.

Which authority is competent to make a judicial arrest? Depending on the situation different persons can be competent to make an arrest.

Arrest with warrant

Magistrate

At any time any magistrate may arrest or direct the arrest of any person in her/his presence. The magistrate must be competent at the time of the arrest, and the arrest must occur within the local limits of her/his jurisdiction.

Police officer

A warrant of arrest may be directed to one or more police officers or chiefs named in it or generally to all police officers or chiefs.

Private person

A warrant can be directed to any person if its immediate execution is necessary and no police officer or chief is immediately available (section 58 sub.2 of the Magistrates courts act).

Arrest without warrant

Police officer

Any police officer may – without an order from a magistrate and without a warrant – arrest any person who:

any person whom a police officer suspects upon reasonable grounds of having committed a cognisable offence or nuisances and offences against health and convenience;

any person who commits a breach of the peace in the presence of a police officer;

any person who obstructs a police officer while in the execution of her/his duty

any person who has escaped or attempts to escape from lawful custody;

any person whom a police officer suspects upon reasonable grounds of being a deserter from the Uganda Peoples’ Defence Forces;

any person whom a police officer finds during the night and whom she/he suspects upon reasonable grounds of having committed or being about to commit a felony;

any person whom a police officer suspects of having been concerned in any act committed out of Uganda which, if committed in Uganda, would have been punishable as an offence;

any person having in her/his possession – without lawful excuse – any implement of housebreaking;

any person for whom a police officer has reasonable cause to believe a warrant of arrest has been issued;

any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to that thing;

any person who in the presence of a police officer has committed or has been accused of committing a non-cognizable offence refuses on the demand of the officer to give her/his true name and residence.

The person arrested shall be brought – without unnecessary delay – before a magistrate having jurisdiction in the case or a police officer in charge of a police station. However it should be noticed that the Ugandan law does not define “unnecessary delay”.

Officer in charge of a police station

Any officer in charge of a police station may – without an order from a magistrate and without a warrant – arrest or cause to be arrested:

any person found taking precautions to conceal her/his presence within the limits of that station under circumstances which afford reason to believe that she/he is taking the precautions with a view to committing a cognisable offence;

any person within the limits of that station who has no ostensible means of subsistence or who cannot give a satisfactory account of her/himself;

any person who is by repute an habitual robber, housebreaker or thief, or an habitual receiver of stolen property knowing it to be stolen, or who by repute habitually commits extortion habitually puts or attempts to put persons in fear of injurypossession of any implement for housebreaking.

Officers in charge of police stations shall report to the nearest magistrate within 48 hours the cases of all persons arrested without warrant within the limits of their respective stations, whether the persons have been admitted to bail or otherwise.

A police officer on arresting a suspect without a warrant shall produce the suspect before a magistrate’s court within 48 hours, unless earlier released on bond.

Private person

Any private person may arrest any person:

who in her/his view commits a cognizable offence; whom she/he reasonably suspects of having committed a felony.

An owner of the property or her/his servants or person she/he authorized may arrest – without a warrant – a person found committing an offence involving injury to her/his property .

The private person shall – without unnecessary delay – bring the person arrested before a police officer, or in the absence of a police officer to the nearest police station. If there is no sufficient reason to believe that the person arrested has committed any offence, she/he shall be released immediately.

Legislation:

Section 58 of the Magistrates courts act Section 10 of the Criminal procedure code act Section 11 of the Criminal procedure code act Section 13 of the Criminal procedure code act Section 14 of the Criminal procedure code act Section 15 of the Criminal procedure code act Section 16 of the Criminal procedure code act Section 18 of the Criminal procedure code act Section 20 of the Criminal procedure code act Section 25 sub.1 of the Police act

For more informations:

Avocats Sans Frontières, “Presumed innocent behind bars: The problem of lengthy pre-trial detention in Uganda”, 2011, p.12

On what grounds and when can someone be arrested (judicial arrest)?

A person is arrested to be brought before a court:

in execution of an order of a court;

upon reasonable suspicion to have committed an offence under the laws of Uganda.

Criminal proceedings can be instituted by three possibilities:

by a police officer bringing a person arrested – with or without a warrant – before a magistrate upon a charge;

by a public prosecutor or a police officer laying a charge against a person before a magistrate and requesting a warrant of arrest or a summons;

by any other person who makes a complaint and applies for the issue of a warrant of arrest or a summons because she/he has reasonable and probable causes to believe an offence has been committed.

A private person 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 on the presumed criminal offence. The magistrate will then confirm or infirm after considering prima facie that the offence is not frivolous or vexatious. To make her/his decision the magistrate consult the local chief of the area to be assured of the truthfulness of the complaint, except if the complaint is supported by a letter from the local chief.

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 warrant of arrest shall:

state shortly the offence;

name and describe the person under suspicion;

give the order to apprehend the person.

Arrest without warrant The 1994 Police act is less accurate than the 1950 Criminal procedure act.

According to the 1994 Police act, a police officer may arrest – without a court order and without a warrant

– any person whom she/he has reasonable reason to suspect that has committed or will commit an offense.

In contrast, the 1950 Criminal procedure act lists different grounds to arrest a person without warrant.

Police officer

Any police officer may – without an order from a magistrate and without a warrant – arrest any person who:

any person whom a police officer suspects upon reasonable grounds of having committed a cognisable offence or nuisances and offences against health and convenience;

any person who commits a breach of the peace in the presence of a police officer;

any person who obstructs a police officer while in the execution of her/his duty

any person who has escaped or attempts to escape from lawful custody;

any person whom a police officer suspects upon reasonable grounds of being a deserter from the Uganda Peoples’ Defence Forces;

any person whom a police officer finds during the night and whom she/he suspects upon reasonable grounds of having committed or being about to commit a felony;

any person whom a police officer suspects of having been concerned in any act committed out of Uganda which, if committed in Uganda, would have been punishable as an offence;

any person having in her/his possession – without lawful excuse – any implement of housebreaking;

any person for whom a police officer has reasonable cause to believe a warrant of arrest has been issued;

any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to that thing;

any person who in the presence of a police officer has committed or has been accused of committing a non-cognizable offence refuses on the demand of the officer to give her/his true name and residence.

Officer in charge of a police station

Any officer in charge of a police station may – without an order from a magistrate and without a warrant – arrest or cause to be arrested:

any person found taking precautions to conceal her/his presence within the limits of that station under circumstances which afford reason to believe that she/he is taking the precautions with a view to committing a cognisable offence;

any person within the limits of that station who has no ostensible means of subsistence or who cannot give a satisfactory account of her/himself;

any person who is by repute an habitual robber, housebreaker or thief, or an habitual receiver of stolen property knowing it to be stolen, or who by repute habitually commits extortion habitually puts or attempts to put persons in fear of injurypossession of any implement for housebreaking.

An officer in charge of a police station may discharge a person arrested without a warrant – after due police inquiry – when insufficient evidence is disclosed on which to proceed with a charge.

Person in charge of lawful custody

The person in charge of lawful custody of a person arrested may rearrest that escaped or rescued person from her/his custody.

Private person

Any private person may arrest any person:

who in her/his view commits a cognizable offence;

whom she/he reasonably suspects of having committed a felony.

An owner of the property or her/his servants or person she/he authorized may arrest – without a warrant – a person found committing an offence involving injury to her/his property (section 15 of the Criminal procedure code act).

Legislation:

Section 23 sub.4 of the Constitution Section 42 of the Magistrates courts act Section 56 of the Magistrates courts act Section 23 of the Police act Section 10 of the Criminal procedure code act Section 11 of the Criminal procedure code act Section 13 of the Criminal procedure code act Section 15 of the Criminal procedure code act Section 17 of the Criminal procedure code act

For more informations:

AYUME, (F.-J.), Criminal Procedure and Law in Uganda, Longman Kenya Limited, 1986, p.42

Is there a form of (administrative arrest)?

The Ugandan law establishes an arrest as preventive action to prevent an offence before it is committed. It is also called “prevention of offences”.

The point is to prevent someone to cause an offence, or to commit a breach of the peace or to disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity.

Legislation:

Section 12 of the Magistrates courts act Section 24 of the Police act

On what grounds and when can someone be arrested (administrative arrest)?

A person may be required to show cause why she/he should not be ordered to execute a bond – with or without sureties – for keeping the peace:

if there is a reasonable cause to believe that an arrest and detention can prevent this person:

~to commit a breach of the peace; ~to disturb the public tranquillity; ~to do any wrongful act that may cause a breach of the peace or disturb the public tranquillity.

when a chief magistrate or a magistrate grade I receives information that this person is taking precautions with a view to commit any offence.

when a chief magistrate or a magistrate grade I receives information that this person by habit:

-is a robber, housebreaker or thief; -is a receiver of stolen property, knowing the property to have been stolen; -protects or harbours thieves, or aids in the concealment or disposal of stolen property; -commits or attempts to commit, or aids or abets in the commission of any offences against liberty or offences causing injury to property or offences relating to coin, bank and currency notes; -commits or attempts to commit, or aids or abets in the commission of offences involving a breach of the peace.

When the person shows cause in court why she/he should not be ordered to execute a bond, the magistrate shall make an order in writing setting forth:

°the substance of the information received; °the amount of the bond to be executed; °the term for which it is to be in force; °the number, character and class of sureties, if any, required.

If that person is not present in court, the magistrate shall issue a summons requiring that person to appear.

If there is reason to fear the commission of a breach of the peace that cannot be prevented otherwise than by the arrest of that person, the magistrate may issue a warrant of arrest against that person.

A person may be arrested as preventive action:

√when a police officer has reasonable cause to believe that the arrest of a person is necessary to prevent that person: √from causing physical injury to her/himself or to any other person; √from suffering physical injury; √from causing loss or damage to property; √from committing an offence against public decency in a public place; √from causing unlawful obstruction on a highway; √from inflicting harm or undue suffering to a child or other vulnerable person,

A person arrested as preventive action shall be released when:

•when the peril, risk of loss, damage or injury or obstruction has been sufficiently removed; •when the execution of a bond where provision is made for the person arrested to appear at regular intervals before a police officer; •upon any reasonable terms and conditions specified by the inspector general.

Legislation:

Section 12 of the Magistrates courts act Section 14 of the Magistrates courts act Section 15 of the Magistrates courts act Section 24 of the Police act

Which authority is competent to make an administrative arrest?

A magistrate A chief magistrate and a magistrate grade I are competent to issue a warrant of arrest to prevent a breach of the peace or disturbance of the public tranquillity when the wrongful act cannot be prevented otherwise than by detaining the person in custody.

A police officer A police officer who has reasonable cause to believe that the arrest and detention of a person is necessary to prevent an offence may arrest that person.

Legislation:

Section 12 of the Magistrates courts act Section 24 sub.1 of the Police act