Law Relating To Pre- Trial Detention In Uganda - Paralegal Reference Hand book
Pre-trial detention is broadly defined by The Paralegal Reference Hand book, FHRI, 2002, pg 70 as the holding of an accused person on criminal charges in custody (whether in prison or police custody) before trial and decision of court. Once an accused person is arrested and detained in lawful custody, the accused person is referred to as a “detainee”. A person who is detained before trial or before court makes a decision on his/her case is classified as a person on remand.
Reasons for arresting and detaining a person
A person would be arrested for any of the following reasons; Section 21 of the Police Act, Cap 303
• If he/she is accused of having committed an offence or a crime,
• If he/she has committed a crime,
• If he/she has to be presented in court to answer charges against him or her,
• If the police is carrying out investigations against him/her in relation to an offence he/she allegedly committed,
• If he/she attempts to commit a crime,
• If he/she is planning to commit an offence.
Power to arrest
The power to arrest a person is contained in the following laws;
The Criminal Procedure Code Act thus Criminal Procedure Code Act, Cap 116. Which is the major body of law regulating treatment of accused persons? It gives powers of arrest to;
i. Police officers,
ii. Any Magistrate to arrest or direct the arrest of a person who commits a crime in his/her presence within the local limits of his her area of control.
iii. Any private person to arrest a person who commits an offence, or arrest a person he/she reasonably suspects of having committed a felony or major offence.
•The Police Act thus The Police Act, Cap.303 No. 21 of 2000 gives and regulates powers of arrest to Police officers.
• The Local Government Act The Local Government Act, Cap. 243 No.69 of 2000 gives powers of arrest to chiefs.
• Uganda People’s Defense Forces Act thus UPDF Act, No 7 of 2005 in Section 185 gives powers to the public or member of the army to arrest any member of the armed forces committing an offence or who is wanted to answer to charges, or who is accused of being about to commit a crime.
Procedure of arrest and detention
A person becomes a detainee when he or she is either lawfully arrested and is detained in custody or is summoned by Police while conducting investigations into a case. Formal or lawful arrest and detention follows the following procedure;
• Upon receiving a report that an offence has been committed, the Police opens a file and registers the case by giving it a Criminal Register Book number (CRB).
• Police starts investigating the case by taking the statement of the complainant, summoning witnesses to the commission of the offence and the accused person and records their statements.
• If the accused person does not answer to the summons, the Police forward the file to a Magistrate who issues a warrant of arrest. This is a document which instructs the Police to look for the person named therein and arrest him forthwith. The purpose of the warrant of arrest is to ensure that the accused person answers to the charges brought against him or her.
• Upon arrest, the accused person is interrogated or asked questions, produced in court for charging and trial. Police should do this within forty eight (48) hours.
• If by the time of arresting the Police have not finalised their investigations and the offence with which the accused person is charged is a minor offence, the Police can release the accused person on Police Bond pending conclusion of the investigation process. The Police has a discretion to grant or deny an accused person bond if he or she is accused of committing a major offence, but nevertheless, they must produce that person in court within 48 hours of arrest.
• The Police send’s the file to the State Attorney to sanction the charges against the accused person. Sanctioning is an administrative measure by which the Director of Public Prosecutions assesses whether evidence collected by Police is sufficient to sustain the charges brought against an accused person.1
• If on perusal of the file it is established that evidence is insufficient, the Director of Public Prosecutions sends the file back to Police to gather more evidence.
• The accused person is produced in Court, where the Magistrate reads out the offence which the accused person is alleged to have committed and asks him or her to plead. The accused person should tell court whether he/she pleads guilty or not guilty. On doing this the Magistrate remands him/her unless he/she applies for bail and sets a date for hearing the case.
• If the accused person pleads not guilty, the Magistrate informs him or her of his right to apply for bail. The accused person can apply for bail there and then or be remanded and instruct a lawyer or any other person knowledgeable about the procedure to apply for bail on his/her behalf.
For offences which are only triable by the High Court, the accused is charged in a Magistrate’s court, but he or she is not allowed to plead to the charges. The Magistrate informs him/her about the right to apply for bail in the High Court and remands him/her. The detainee can then file an application for bail at High Court where the Judge hears it and takes a decision on whether to grant or deny him/her bail. When the prosecution finalises its investigations, the accused person is committed to the High Court for trial.
For cases which are triable by the Magistrates court but are not bailable by them for example embezzlement, when the accused person is presented in Court, he/she takes a plea and is remanded. He/She is informed of his/her Right to apply for bail in the High Court which he/she can exercise any time before the trial process is completed.
The right to bail is a fundamental right guaranteed by Article 23 (6) of the 1995 Constitution of the Republic of Uganda. Its basis roots from Article 28 which provides that an accused person is to be presumed innocent until he/she is proved or he/she pleads guilty. It further provides that the accused is entitled to a fair and speedy trial before an independent and impartial court or a tribunal which is established by law.
Tags : Civil Procedure Criminal Law