The Law on Arrests and Release from Detention in Uganda

By Bakampa Brian Baryaguma

bakampasenior@gmail.com; www.huntedthinker.blogspot.ug

1.                  Introduction

The word ‘arrest’ literally means putting a stop to movement or seizing somebody by the authority of the law.[1] More technically, however, it is defined as, ‘The apprehension of a person suspected of criminal activities.’[2] The learned author, Ayume, submits that, ‘Arresting a person, therefore, means interfering with his personal liberty. Arresting an individual in fact means that he cannot move about as he likes.’[3]

Personal liberty in Uganda is a constitutionally protected right, under Article 23(1) of the Constitution, which states that, ‘No person shall be deprived of personal liberty....’ This clause however, has a number of exceptions (in paragraphs (a)-(h)) to this general principle,[4] whereby, ‘... the law says that in certain circumstances the State has not only the right but also a duty to interfere with this liberty by causing the arrest and prolonged incarceration of an individual.’[5]

It follows from the foregoing, that arrest denotes the forceful restraint of a person’s liberty, by some lawful authority,[6] for purposes of compelling the arrested person to appear before a court of law to answer to a criminal charge or charges, or to testify against another person, and in other cases, as a method of executing court judgments.

2.                  The Law on Arrests

Arrests are principally governed by The Criminal Procedure Code Act (hereinafter ‘the CPC’),[7] and The Police Act.[8] Any person – whether law enforcement officer or private citizen[9] – can arrest another, as long as it is legally tenable to do so, by actually touching or confining the body of the person to be arrested, unless there be a submission to the custody by word or action.[10]

A person may arrest (or be arrested) with or without an arrest warrant.[11] A person arresting another without a warrant must inform the other of the reasons for his or her arrest, because he or she has a right to know the nature of the charge or suspicion for which he or she is arrested, except if he or she makes it impossible to be informed of the reasons, say, by counter attack or running away.[12] The arresting person need only divulge the substance of the charges – not a count by count tale.[13]

A.                Arrest by a Police Officer

The CPC empowers any police officer to effect arrest without a warrant. Section 10 permits such arrests of the persons stipulated in the paragraphs thereunder.[14] Sections 13(1) and 15(3) authorize arrest in situations where a person refuses to give his or her name and residence, or gives details that are reasonably false, upon commission or suspected commission of a noncognisable offence.

Section 23(1) of The Police Act authorizes police officers to arrest without warrants, if they have reasonable cause to suspect that a person has committed or is about to commit an arrestable offence.

B.                 Arrest by a Private Person

Under Section 15(2) of the CPC, private citizens, particularly owners of the property or their servants or persons authorised by them, may arrest, without a warrant, persons found committing any offence involving injury to property.

C.                Arrest by a Magistrate

Section 20 of the CPC empowers any magistrate to, at any time, in his or her presence, and within the local limits of his or her jurisdiction, arrest or direct the arrest, of any person for whose arrest he or she is competent at the time and in the circumstances to issue a warrant. Thus, while the magistrate is ordinarily expected to issue an arrest warrant for the person, sometimes he or she need not wait to issue one, and instead order immediate arrest of the person without a warrant.

3.                  How Persons Arrested Without Warrant are Dealt With

Under Article 23(2) of the Constitution, an arrested person should be kept or detained in a place authorized by law. Further, under Section 17(1) of the CPC, if it appears that the arrested person committed an offence of a serious nature, he or she should be duly detained at a police station.

Accordingly, if arrested by a police officer without a warrant, the arrested person should, without unnecessary delay, be released on police bond, or presented before a magistrate, or before an officer in charge of a police station;[15] if arrested by a private citizen, the person should, without unnecessary delay, be handed over to a police officer, or in the absence of a police officer, to the nearest police station;[16] the law is however, silent on what happens to a person arrested by a magistrate. It is submitted that the magistrate should, without unnecessary delay, book the arrested person into lawful custody, by particularly charging and remanding him or her in prison.

4.                  Release from Detention

A person arrested and detained at this stage should not remain incarcerated for a long period of time, because he or she still enjoys the right to presumption of innocence under Article 28(3)(a) of the Constitution. The presumption of innocence, coupled with the need to protect the person’s right to personal liberty, creates an overriding interest in releasing a detained person.

There are two ways in which an accused person held in custody may seek for his or her release: applying for and obtaining either a police bond, or court bail.

A.                Release on Police Bond

A person arrested and detained should be released from custody, upon executing a bond, with or without sureties, to appear before a magistrate if so required. This position of the law is provided for under Section 13(2) of the CPC, and Section 25(1) of The Police Act.

However, in situations where the detained person is not resident in Uganda, the bond should be secured by a surety or sureties resident in Uganda.

Police bond is applied for orally. And it is free of charge, under Section 38(1)(a) of The Police Act.

B.                 Release on Bail

A person arrested and detained may also be released from custody, upon applying for and obtaining bail. The object of bail is to ensure that the accused person appears to answer the charge against him or her without being detained in prison on remand pending his or her trial, effectively temporarily releasing him or her from court or prison or police custody.[17]

There is no single legislative enactment in Uganda that defines the term “bail”. But a number of scholarly works give useful definitions:

Justice Odoki defined bail as, ‘…an agreement or recognisance between the accused (and his sureties, if any), and the court that the accused will pay a certain sum of money fixed by the court should he fail to appear to attend his trial on a certain date.’[18]

The Oxford Dictionary of Law defines bail as the release by court of a person held in legal custody while awaiting trial or appealing against a criminal conviction.[19]

While Osborne’s Concise Law Dictionary defines it as the release from custody of an accused or convicted person, who undertakes to subsequently surrender to custody.[20]

Bail is constitutionally founded in Articles 23(6),[21] and 28(3)(a),[22] and other laws, notably The Magistrates Courts Act (hereinafter ‘the MCA’),[23] Section 75(1) of which empowers a magistrate before whom a person is brought to release such person on bail, at any stage of the proceedings, on taking from him or her a recognisance consisting of a bond with or without sureties, for such an amount as is reasonable in the circumstances of the case to appear before the court, on a stipulated date and time.[24] Under Section 78 of the MCA, court may also require the person to deposit any specific article or property, or a sum of money, in lieu of executing such a bond.

Under Section 77(1) of the MCA, a person appearing before a magistrate’s court charged with a bailable offence should be informed by the court of his or her right to apply for bail. The MCA is silent on the procedure of applying for bail from the trial magistrate, but more often than not, it is applied for orally in practice.

Under Section 77(2), when an application for bail is made, the court considers a number of factors before granting or refusing to grant it.[25] Under Section 77(3)(b), where bail is not granted, the court should inform the applicant of his or her right to apply for it to the High Court or a chief magistrate.

[Below are videos of suspects in the murder of Late Assistant Inspector General of Police, Andrew Felix Kaweesi, who were granted bail by the Chief Magistrate's Court of Nakawa, at Nakawa, on 7 November 2017, after spending the maximum mandatory period in prison custody, without being committed to the High Court. After being released on bail, they were waylaid along the way, rearrested by plain-clothed security operatives, and taken back to prison. This is an abuse of their constitutional rights to personal liberty, release on bail, among others.]

5.                  Conclusion

People in Uganda, particularly law enforcement officers, have extensive powers of arrest, and ultimately detention: mere reasonable suspicion that a person has committed a crime is enough for one to arrest or cause the arrest of another. The arresting authority, therefore, arguably has sweeping powers of arrest, with or without a warrant, as long as there exists the slightest legal justification to do so, at which point the decision to arrest is more or less unfettered.

However, the legal position is different when it comes to deciding on whether or not to release the arrested person. Here, the law is more inclined in favour of the person under arrest and detention, as there are very serious legal fetters on the person’s continued arrest and prolonged detention – for obvious reasons of protecting his or her fundamental rights to personal liberty and presumption of innocence, such that it would be definitely erroneous for an arresting authority to suppose that nobody else would release the arrested person, if legal imperatives (which are basically satisfying the conditions for release on police bond or court bail) exist to justify such release. In that case, any concerned police officer or magistrate is empowered to effectively release the person arrested.

Notes and References

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[1] A.S. Hornby, A.P. Cowie and A.C. Gimson, Oxford Advanced Learner’s Dictionary of Current English (1983), at 42.

[2] Elizabeth A. Martin (Ed.), A Dictionary of Law (2003), at 32.

[3] Francis J. Ayume, Criminal Procedure and Law in Uganda (1986), at 33.

[4] These are: (a) in execution of the sentence or order of a court (Ugandan or foreign) 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; (b) in execution of court order made to secure the fulfilment of any obligation imposed on that person by law; (c) 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; (d) for the purpose of preventing the spread of an infectious or contagious disease; (e) for the purpose of the education or welfare of a person who has not attained the age of eighteen years; (f) for the purpose of the care or treatment of a person who is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol, or the protection of the community; (g) for the purpose of preventing the unlawful entry of that person into Uganda, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Uganda or for the purpose of restricting that person while being conveyed through Uganda in the course of the extradition or removal of that person as a convicted prisoner from one country to another; (h) or as may be authorized by law, in any other  circumstances similar to any of the specified cases.

[5] Francis J. Ayume, supra note 3.

[6] It should be noted however, that there may also be unlawful arrests, but those are not the focus of this essay.

[7] Cap. 116, Laws of Uganda, Revised Edition 2000.

[8] Cap. 303, Laws of Uganda, Revised Edition 2000.

[9] Section 15(1) of The Criminal Procedure Code Act states that, ‘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.’

[10] See, Sec. 2(1) of The Criminal Procedure Code Act.

[11] An arrest warrant is a court document directing, and authorizing the arrest of a person or persons named therein.

[12] Francis J. Ayume, supra note 3, at 38-39.

[13] This rule was enunciated in the British case of Christie vs Leachinsky [1947] AC 573; and adopted in toto in the East African case of Mwangi s/o Njoroge v R (1954) 1 EACA 277.

But Francis J. Ayume, supra note 3, at 39, states that this right is waived in situations where the arrested person is caught committing a crime – in flagrante delicto – in which case the person under arrest must have known the offence against him.

[14] These are: (a) any person whom he or she suspects upon reasonable grounds of having committed a cognisable offence, an offence under any of the provisions of Chapter XVI of the Penal Code Act or any offence for which under any law provision is made for arrest without warrant; (b) any person who commits a breach of the peace in his or her presence; (c) any person who obstructs a police officer while in the execution of his or her duty, or who has escaped or attempts to escape from lawful custody; (d) any person whom he or she suspects upon reasonable grounds of being a deserter from the Uganda Peoples’ Defence Forces; (e) any person whom he or she finds in any highway, yard or other place during the night and whom he or she suspects upon reasonable grounds of having committed or being about to commit a felony; (f) any person whom he or she suspects upon reasonable grounds of having been concerned in any act committed at any place out of Uganda which, if committed in Uganda, would have been punishable as an offence, and for which he or she is, under the provisions of any written law, liable to be apprehended and detained in Uganda; (g) any person having in his or her possession without lawful excuse, the burden of proving which excuse shall lie on that person, any implement of housebreaking; (h) any person for whom he or she has reasonable cause to believe a warrant of arrest has been issued; (i) 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.

[15] Section 14 of The Criminal Procedure Code Act.

[16] Section 16(1) of The Criminal Procedure Code Act.

[17] Benjamin J. Odoki, A Guide to Criminal Procedure in Uganda (1990), at 69.

[18] Ibid.

[19] Elizabeth A. Martin (Ed.), supra note 2, at 43.

[20] Osborne, A Concise Dictionary, 8^th Edition, at 39.

[21] In the case of Attorney General vs Joseph Tumushabe, Constitutional Appeal No. 3 of 2005, Mulenga J.S.C. (as he then was), stated that, ‘…the genesis of the right to bail is the protection of the right to liberty.’

[22] In the case of Joseph Tumushabe vs Attorney General, Constitutional Petition No. 6 of 2004, Twinomujuni J.A. (as he then was), said that the basis of the right to bail is to be found in article 28(3)(a) of the constitution. Further, according to Francis J. Ayume, supra note 3, at 54, one of the basic ideas underlying bail is the presumption that the accused is innocent until proved guilty or upon he or she pleading guilty.

[23] Cap. 16, Laws of Uganda, Revised Edition 2000. The other law is The Trial on Indictments Act, Cap. 23, Laws of Uganda, Revised Edition 2000, which governs criminal proceedings in the High Court, including bail applications.

[24] But Section 75(2) provides a list of offences in respect of which a magistrate’s court has no jurisdiction to grant bail, including offences triable only by the High Court.

[25] These are: the nature of the accusation; the gravity of the offence charged and the severity of the punishment which conviction might entail; the antecedents of the applicant so far as they are known; whether the applicant has a fixed abode within the area of the court’s jurisdiction; and whether the applicant is likely to interfere with any of the prosecution witnesses or any of the evidence to be tendered in support of the charge.