Understanding the rights of arrested and detained persons

 

Trust Maanda
Legal Position

 

Part 1

PERSONS that are arrested and detained have certain rights.

 

Section 50 of the Constitution provides those rights.

Any person who is arrested must be informed at the time of arrest of the reason for the arrest.

 

This is so because the arrest must not be arbitrary.

Any person has a right to liberty.

 

An arrest is an inroad into that right to liberty.

There must be a reason for the suspicion that a person has committed or is about to commit an offence.

A police officer then must inform the person why he is being arrested.

 

The time-honoured principle of our criminal justice system that an accused person is innocent until proven guilty is part of our law.

The principle that the police should investigate the alleged commission of a crime and formulate a reasonable suspicion that an accused person has committed an offence before effecting an arrest is also part of our law.

A person who is arrested must be permitted, without delay, at the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice.

That person must be permitted at their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly.

It is the police who must inform the arrested person of his or her rights to communicate and consult with a lawyer of their choice or medical practitioner.

Consulting in private entails that the police officer must not be within earshot when the person consults with his lawyer or medical practitioner.

The police may be within sight, but beyond hearing of the arrested person while in the consultation.

There is what is called lawyer and client confidentiality.

 

The communication between the lawyer and his client cannot be disclosed to anyone.

 

This is a matter of law and public policy.

 

An arrested person can and should insist on privacy when they communicate with their lawyer.

Any refusal by the police to accord access to a lawyer will constitute a breach of a right.

In State v Woods 1993 (2) ZLR 258 (S), the then CHIEF JUSTICE GUBBAY, commenting on an arrested person’s right to legal representation stated: “The failure to accord to the first and second respondents their constitutional right to proper and meaningful access to a legal practitioner was a serious violation.

 

It was deliberate, and motivated by an apprehension that the consequences of such access might possibly hinder the progress of the investigations, or might even cause these two appellants to become unco-operative.

 

There is no question of the breach being of a technical nature, being committed in good faith, or due to inadvertence.

 

And what makes it all the more reprehensible was the grave nature of the charges for which the two appellants had been arrested and the magnitude of their criminal liability if convicted.

 

An arrested person must be treated humanely and with respect for their inherent dignity. The police must not harass an arrested person.

They are not arresting him to punish him, but to bring him or her before the court.

It is the court, on finding that person guilty that can punish him by imposing a sentence. Before he or she is convicted, the law presumes the person innocent.

Their conditions of detention must not be inhumane.

 

They must be held in clean and sanitary cells.

 

They must receive food and be permitted to receive it from their relatives as well.

 

If they are sick, they must be permitted to consult with their medical practitioner.

Any person who is arrested or detained for the purpose of bringing him or her before a court; and who is not released must be brought before a court as soon as possible.

But in any event, they should be brought not later than 48 hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on weekend or public holiday.

The police do not have to wait for 48 hours to bring an arrested person to court.

 

They should bring him as soon as possible from the time of the arrest or detention, but if they delay, the delay must not exceed 48 hours.

The period of detention runs even on weekends and public holidays.

 

This means courts must sit on holidays and weekends for purposes of hearing the reason why that person is or should remain in detention.

If that person is not brought to court within the 48-hour period, he or she must be released immediately unless their detention has earlier been extended by a competent court.

A court cannot entertain remand proceedings of a person illegally brought to court.

 

Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.