Arrest is important in the process of law enforcement and administration of Justice. Arrest is one of the most serious infringements on the rights of an individual. Therefore an arrest should only be effected when necessary and in accordance with the law. Arrest means the act of apprehending a person for the alleged commission of an offence or by the action of a lawful authority. Arrest is a lawful method to secure the attendance of a suspected criminal at his or her trial. It is a trite principle that no one shall be deprived of his or her liberty except on such grounds and in accordance with such procedure as are established by law. This principle makes it clear that the reasons for an arrest, as well as the procedures that should be followed during an arrest, must be found in the laws of the State.
It is important for law enforcement officials to take note of the fact that all arrests should be legal. This principle of legality is violated if somebody is either arrested or detained on grounds which are not clearly established in, or which are contrary to, law. Arbitrary arrest is therefore illegal and should be avoided. An arrested person is presumed to be innocent until proven guilty in a recognized court of law. For this reason every arrested person should be treated humanely and in accordance with the law. Arrest is not a punishment or a method to temporarily remove unwanted persons from the society; an arrested person is to be promptly brought before a judicial authority for the purpose of having the legality of his arrest or detention reviewed, and shall be released if the detention is found to be unlawful.
It is important to note that upon arrest there are some basic rights that every person who is arrested should have. This places an obligation on police officers or other law enforcement officials to respect and protect the basic rights of people who are arrested. Arrested persons have certain rights immediately upon arrest and also after arrest. These rights are:
Rights immediately upon arrest
Right to liberty/freedom and security of a person and to freedom of movement:
Right to liberty/freedom and security of a person and to freedom of movement. A person may only be arrested on such grounds and in accordance with such procedure as are established by law. This is the principle of legality. This principle of legality is violated if somebody is either arrested or detained on grounds which are not clearly established in, or which are contrary to, law. A person may not be arrested or detained arbitrarily (without legal grounds).
Right to be treated with dignity and respect:
The arrested person has the right to be treated with dignity and respect. Police officers should, for example, not swear or use abusive language towards the arrested person, because this infringes on the person’s dignity.
Right to be informed of the reasons for arrest:
Every person that is arrested has the right to be informed, at the time of the arrest, of the reasons for his or her arrest.
Right to remain silent:
An arrested person should have the right to remain silent. No one shall be compelled to confess or to testify against her-/himself; every person has the right not to incriminate him or herself. This right is affirmed by the fact that police officers are obligated to state that a person has the right to remain silent and that everything that such person says may be taken down and used afterwards as evidence in a court of law. This however does not mean that the suspect should not provide, for example, basic details like name, address and reasons for being at a specific place.
Right to be informed of the charges against him or her: An arrested person also has the right to be promptly informed of any charges against him or her. The law is silent on the clear definition of what is meant by ‘‘promptly’’ – but several judicial precedents are to the effect that it must be as soon as possible.
The right to be informed of all the rights: Although suspects have basic rights upon arrest they also have the right to be informed about these rights by the police officer who arrested him or her. Any person shall, at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his or her arrest, detention or imprisonment, respectively with information on and an explanation of his rights and how to avail himself or herself of such rights.
To be presumed innocent: Every arrested person has the right to be presumed innocent until proved guilty according to the law in a public trial at which he has had all the guarantees necessary for his or her defence. It is for the court to decide if a suspect is guilty. This can only be done after all the evidence was heard and the person was proven to be guilty beyond reasonable doubt.
Rights immediately following arrest
1. Right to be brought to a place of custody:
Persons should only be detained in legally accepted places of custody.
2. Right to apply for bail:
Persons have the right to apply for bail when they have been charged for committing an offence that is bailable.
3. Right to be brought promptly before a judge or other officer authorized by law:
Anyone who is arrested shall be brought promptly before a judicial authority. To be brought to a place of custody and to be brought promptly before a judge or other officer authorized by law to exercise judicial power who will decide on the lawfulness and the necessity of the arrest.
4. Right not to be tortured or treated in a cruel inhumane or degrading way:
The prohibition of torture applies to persons under any form of arrest, detention or imprisonment. Police officers are explicitly prohibited from taking advantage of the situation of a detained person to obtain a confession, to incriminate him or herself or to testify against others.
5. Right to a fair trial within a reasonable time:
A person detained on a criminal charge shall be entitled to fair trial within a reasonable time or to be released pending trial.
6. Right to notify family members and other appropriate persons about the detention:
Promptly after arrest and after each transfer from one place of detention or imprisonment to another, a detained or imprisoned person shall be entitled to notify or to require the competent authority to notify members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment or of the transfer and of the place where he is kept in custody.
7. Right to a legal representative:
An arrested person has a right to the assistance of a legal counsel and must be provided with reasonable facilities to exercise this right. Legal counsel must be provided by a judicial or other authority if the arrested person has no legal counsel of his or her own choice, and free of charge if the arrested person does not have sufficient means to pay.
Whenever a person is arrested, it must be for the alleged commission of an offence or by the
action of an authority. In law enforcement practice, not every alleged commission of an offence automatically leads (or should automatically lead) to the arrest of the person(s) responsible. There are a number of factors which influence the decision whether to affect an arrest or not. The gravity and consequences of the offence committed, combined with the personality and behaviour of the arrested person at the time of apprehension, will be basic considerations. Inevitably the quality and experience (i.e. competence) of law enforcement officials involved will also have a bearing on the outcome of a particular situation in which the discretion whether or not to arrest is exercised.
Police officers may never arrest a person arbitrarily and without just cause. Article 9 of the Universal Declaration of Human Rights provides: “No one shall be subjected to arbitrary arrest, detention or exile.” In the same vein, Article 6 of the African Charter on Human and People’s Rights provides that: “Every individual shall have the right to liberty and security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law, in particular, no one may be arbitrarily arrested or detained.”