Arrest and detention

By: Poiya Issac

Today, I would like to educate my people of South Sudan, readers and researchers about this topic on a pro-bono base. This was my thesis in undergraduate level (LLB).

The legal argument is that; No arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of; or as soon as practicable after, shall arrest be a nullity and whether what started out as an unlawful arrest could never become a lawful arrest and therefore the arrested person (s) is entitled to damages compensation for the whole period of detention.

Pursuant to Article 19 (2) of the Transitional Constitution 2011, as amended, “Any person who is arrested shall be informed, at the time of arrest, of the reasons for his/her arrest and shall be promptly informed of any charges against him/her”. This is the right of an accused person to fair trial.

Arrest is an English word—– It’s defined as “The apprehension of a person suspected of criminal activities as per Oxford Law Dictionary. And in the case of R vs. Whitfield (1970) S.R.C. 46, Court adopted the definition of arrest from Halsbury’s laws of England and Held; “Arrest consist of the actual seizure of touching of a persons’ body with a view to his/her detention, the mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting Officer”.

In my opinion, where the arrest has no reasonable ground, it becomes illegal and actionable in tort as false imprisonment and if not done by the person authorized, it may amount to a crime of abduction, kidnapping or wrongful confinement. This is in light with section (302) of Code of Criminal Procedure Act, 2008. “When any person causes the arrest of another and it appears to a Magistrate or Court by whom the case is investigated into or tried that there was no sufficient grounds for causing such arrest, the Magistrate or Court may in his/her discretion direct the person causing the arrest to pay to the arrested person or each of the arrested persons, if there are more than one, such compensation not exceeding SDG 100 which the Magistrate or Court deems appropriate, and may award a term of imprisonment not exceeding thirty days in the aggregate in default of payment, and the provisions of Section (16 & 17) of the Penal Code shall apply as if such compensation were fine; provided that, before making any such directives the Magistrate or Court shall record and consider any objection which the person causing the arrest, if present, may make against the making of the directives; and if he/she directs any compensation to be paid, state in writing his or her reasons for awarding the compensation.

In the words of F.J Ayume, (2010), “Criminal Procedure & Law in Uganda”, Law Africa Publishing, at pg. 36. “No doubt if a Police Officer is left un questioned in the law of Courts every time he exceeds his or her powers and unlawfully arrest or assault or detain any person in the course of his/her duties”. Hence, to me, the image of the Police, Government and other legal systems will be tarnished in the eyes of the people who the law seeks to protect.

Arrest and detention has often been reflected in south Sudan’s history and political settling, during the colonial period, most arrest were for murder and rape. People were also imprisoned for failure to pay local taxes and for non-acceptance of the rule of the colonial masters-thus British. After independence in 1st January 1956, of Sudan, people were arrested mainly for non-compliance with the rule and practices of the Islam including Southerners seeking for freedom and civil wars became common in the Sudan.

Down to 2011 following the independence of the Republic of South Sudan, 9th July. Not forgetting the 15th, Dec, 2013 crisis in Juba and that of 2016, cases of armed robbery and rape became a common crime both in the villages and urban centers. Hence, there existed massive human rights violation. The government has increased detention to political opponents. The security forces were vigilant in monitoring any insurgency, there was a state of emergency order issued by the head of state, authorizing the military and the security officers to arrest and detain indefinitely any one whose actions were prejudicial to national defense or security.

And, in 2018, the government established the National Dialogue Committee and pledged to end tyranny of the arbitrary arrest, promised to reform the country’s’ democratic system and bring peace to the people of South Sudan and reform the criminal justice system, then the revitalized peace agreement was also signed in Khartoum in 2018 therewith. That there was overcrowding in the detention places, torture by wardens, severely inadequate medical services, long remand period was also a problem particularly the case of the Terrain Hotel trial, it took long time. The trial of the accused was established by the government to eliminate violent crimes and provide justice to victims. But in one way or another, it violated the human rights of accused persons especially the right to personal liberty. Hence, contrary to the cardinal principle of the rule of law-justice delayed is justice denied.

Whether or not a person has been arrested depends not on the legality of the arrest but on whether he/she has been deprived of his liberty to go where he pleases.

To me, it should be noted that arrest is a continuing act; it starts with the arrester taking a person into his or her custody (by action or words restraining him from moving anywhere beyond the arresters’ control), and it continues until the person so restrained is either released from custody or, having been brought before a Magistrate, is remanded in custody by the Magistrate.

Therefore, that definition still remains good in law and it’s clear that arrest is a matter of fact; it is not a legal concept (though it clearly has legal consequences) and is a continuing act. Hence, if no reason for the ground of arrest and detention is given to the person arrested at the time of the arrest, the original arrest becomes unlawful, nothing could cure that arrest, everything else that took place thereafter fell to the ground although this is not sometimes untenable.

The legal question is whether the arrested person is in a lawful custody? At what stage he or she is in the lawful custody? If at all, did he become in the lawful custody? My answer is; when the person is in the police station, he/she is informed in sufficient detail by the Police constable, then he is thereafter in a lawful custody.

Suffice to that; whether a person has been arrested depends not on the legality of his arrest but on whether he has been deprived of his/her liberty to go where he pleases. There is no doubt that, a person shall be deprived of his or her liberty at the moment that he or she is arrested from the place. That act clearly is not a nullity if it had been, then the limit of the period of time in which a person may be detained without charge by reference to the time of the persons’ arrest would appear to have no point of time from which the period in question runs.

I do agree that; simply as a matter of the language used, arrest as I said, is a continuing act. It starts with the action of taking a person arrested into custody and undoubtedly, at that moment the person arrested should be informed of the grounds of the arrest, either at that moment or as soon as is practicable after arrest and, if that is not so, that arrest, that taking into custody, is unlawful.

In the law, there is nothing which provides the effects of the arrested person subsequently being given the reasons for the arrest. Under Article 19 (4) of the Transitional Constitution, 2011 as amended. “A person arrested by the Police as part of an investigation may be held in detention, for a period not exceeding 24 hours and if not released on bond to be produced in court. The Court has authority to either remand the accused in prison or to release him or her on bail. Now, clearly, a subsequent giving of the reasons cannot retrospectively make the period between the moment of arrest and the time for giving the reasons lawful, and no one can suggest that he/she did.

Further, what is the effect of telling a person, who was initially arrested without being told of the reasons for his arrest, those reasons at a later time? That thereafter, his custody becomes lawful and, indeed, the contrary seems to me to be not merely a surprising, but and almost ridiculous, contention, that what the Police Officer should do in those circumstances is to tell the person concerned, “you are now free to go” and, the instant he says that, should place his hands immediately on that persons’ shoulder and say, now you are under arrest and you are arrested for; giving the reasons….

Meanwhile, it seems to me that the Parliament cannot have intended that such a farce had to be gone through, and it is sufficient if the Police Officer gives the reasons and then from that moment on wards the arrest is lawful.

And where a person (s) has been arrested for an offence and is at a Police Station in consequence of that arrest; and it appears to a constable that, if he was released from that arrest, he would be liable to arrest for some other offence, he/she shall be arrested for that other offence. Here, the person is already arrested and deprived of his liberty, but he can be arrested for the second offence, which seems to me clearly to contemplate doing nor more than saying, “You are also being kept in custody for offence (b) as well as offence (a).

The writer is a practicing Advocate & Commissioner for Oaths, Poiya Isaac & Co. Advocates Law Firm, Juba.

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