Rights of suspect during arrest

By Musyoki Kimanthi

Q: I was arrested on New Year’s eve in a police swoop and released on New Year’s Day without any indication of what offence I had committed. I was released after paying Sh1,000 bond, but no receipt was given to me and I wasn’t told when I would be charged before court. What is the procedure for effecting an arrest and what are my rights when an officer seeks to arrest me?

Police should only use force while arresting a suspect incase they resist arrest. Photo/Stafford Ondego/ Standard

A: Many times we hear of police swoops, especially during the festive seasons, ostensibly to curb rowdy behaviour by youths like screaming or pelting motorists with stones.

But the problem is that many are the times also when the police instead become the excited lot and engage in indiscriminate arrest and detention of innocent citizens for all manner of reasons. Although these swoops are at times necessary, it has never been clear how their necessity is determined and what precautions are normally put in place to ensure that innocent citizens are not unduly victimised.

Their operations border on curfews — an order by a government for certain persons to return home daily before a certain time for purposes of maintaining law and order or to suppress targeted groups. Police swoops result in a curtailment of fundamental freedoms guaranteed by the Constitution.

Our Criminal Procedure Code does not define an arrest but Section 21 and 24 of the Penal Code sheds some light on what constitutes an arrest. Section 21 provides, among other things, that in making an arrest, the arresting person shall touch and confine the body of the person being arrested unless he submits to custody either by conduct or word of mouth.

An arrest marks a very important step in the criminal justice process and it is, therefore, mandatory that it be effected properly and in accordance with the law.

All means necessary

In cases where the subject of the arrest resists, the arresting officer may use all means necessary to effect the arrest, including use of force. The force used, however, must be proportionate to the resistance offered.

Every arrest should be effected with the intention of mounting criminal prosecutions. It, therefore, behoves the arresting officer to make known to the person being arrested the reason for such an arrest.

The law vests different persons with the power to effect an arrest. Police officers enjoy these powers by virtue of the Police Act, the Penal Code, the Criminal Procedure Code and other enabling statutes. Magistrates are also empowered by the law to effect an arrest.

Citizen power

Perhaps of interest to the general public is that Section 34(1) of the Criminal Procedure Code empowers a private citizen to arrest any person he suspects of having committed a cognisable offence in his presence. Cognisable offences are those that are deemed serious and do not require a warrant for someone to arrest, for example, murder or robbery. However, where a private citizen has effected an arrest, he must deliver the suspect to a police station without undue delay.

Merely arresting a suspect is not a finding of guilt and until someone has been convicted of the alleged offence by a competent court, he remains innocent and as such must be treated with courtesy and respect.

The fact that police work under difficult circumstances having to deal with a difficult and conniving society is no reason for them to harass and intimidate.

Section 42 of the Criminal Procedure Code imposes a duty on every citizen to assist a police officer or a magistrate in effecting an arrest whenever help is sought. On the other hand, citizens expect that police apply the law for public good but not use it as a means for funding their private projects.