WHEN CAN I BE ARRESTED
A person may be arrested either on the strength of a warrant of arrest or when a police officer witnesses a person committing an offense or has probable cause to believe that a person was involved in the commission of a crime.
You have the right to be informed of the charges on which you are being arrested. Most importantly you have the right to remain silent, to be informed promptly of such right and the consequences of not remaining silent. Any information uttered or willingly given to an officer may be used against you in court.
You may not be compelled to make any confession or admission that could be used as evidence against you. A person further has the right to be brought before a court as soon as reasonably possible, but no later than 48 hours after the arrest. If the period of 48 hours expires outside ordinary court hours or on a day that is not an ordinary court day, the accused must be brought before a court not later than the end of the first following court day.
Once arrested you are required to tell the police your home address. A police officer may not request any further information from you including in respect of your activities or organizations you are involved with.
After an arrest you will, more often than not, be detained at a police station. In detention, you may be searched. You may however not be searched without your consent and a person of the same sex should conduct the search. The police have the right to take your fingerprints and take photographs.
You have the right to:
Be informed promptly of the reason for being detained.
The police must inform a detainee of these rights and when informed it must be in a language that the person can understand.
Choose to, and consult with an attorney of his/her choice, and should such person not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state at the state’s expense, and to be promptly informed of such rights.
Be contained in conditions that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material, and medical treatment.
Communicate with, and be visited by, the person’s spouse or partner, next of kin, chosen religious counselor, and chosen medical practitioner.
Be presumed innocent until proven guilty.
For minor offenses’ police bail’ can be granted or the police may release you on a warning. In the case of police bail, the investigating officer will propose an amount for bail and an agreement should then be reached on the amount of bail. After payment of this amount the arrested person may be released from custody. There should always be an officer on duty of sufficient rank to make the decision to grant or refuse police bail.
In any criminal court case when a person is arrested, the accused person remains to be presumed not guilty until the court finds such person guilty. In our law, no one may be detained without trial. If an accused is arrested he or she is normally kept in prison or the police cells till the trial is finalized to ensure the presence of the accused at court.
If the person wishes not to be imprisoned pending the finalization of the trial, he or she may apply to the court to be released on warning or on warning with some conditions attached or on bail (with or without conditions). Bail is the sum of money paid to the court or to the police. Bail is granted more readily when the accused is not a flight risk and can easily be found by law enforcement agencies. There are usually bail conditions set by the presiding officer that the accused must comply with.
No, the granting of bail must not be seen to be a reflection of the strength of the State’s case against the accused. Also, bail granted does not imply the acquittal of the accused nor the withdrawal of the case. Even when bail is granted, the accused will still face the charges in a court of law when a trial date is set. Once granted bail it just means that the court is of the view that the accused will stand his/ her trial and is not a flight risk or a danger to the community.
The accused person can apply at any stage of the court proceedings for bail when he or she is before the court. Normally after arrest, the accused must be brought before a court within 48 hours of arrest and he or she may then apply to be released on warning or bail if the case is not finalized on that day.
By paying bail the accused promises to come to court for future hearings of his or her case and agrees that if he or she does not return, the money paid as bail may be forfeited to the state. In turn for this, the accused is then released until the next date(s) that the case is again before the court, till the case is finalized.
When the court case is over, the bail money is paid back even if the accused is found guilty. Bail money will however not be paid back, if the accused does not come to court on the day of their court case, or if they break any of their bail conditions such as if they interfere with any witnesses.
If an accused does not appear in court the bail will be forfeited to the State unless convincing reasons can be provided as to why the person could not be at the court when he or she was supposed to.