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CRIMINAL PROCEDURE
The Criminal Procedure is the process through which penal and criminal law are applied. That is the process of the application of penal laws. It is procedural law and not substantive law. JURISDICTION Laws Applicable The Constitution 1995 The Criminal Procedure Code Act The Magistrate Court Act cap 16. The Trial on Indictments Act cap 23. The Penal Code Act cap 120 The Magistrates’ Courts (Amendment) Act 2007 The Penal Code (Amendment) Act, 2007 The Magistrates Courts (Magisterial Areas) Instrument, 2007 Criminal jurisdiction is the power which the sovereign authority of a state has vested in the court and other tribunals established by law to determine questions which arise out of crimes committed in that state. In other words, criminal jurisdiction is the power vested in courts to hear and determine criminal cases. Before proceedings commence in any case the question which arises is whether the offence committed is triable within the territorial jurisdiction of Uganda and if so which court has power to hear the case. (for example s.4 of the PCA CAP 120 the jurisdiction of the courts of Uganda extends to every place within Uganda except for cases of treason committed by a Ugandan citizen or person ordinarily resident in Uganda). There are three aspects of jurisdiction which include
- Territorial jurisdiction
- Local jurisdiction
- power to try cases Territorial Jurisdiction The first question which needs consideration is whether the court has territorial jurisdiction.
S.4 of the Penal Code Act cap 120 lays down the extent of the jurisdiction of the courts of Uganda. The general rule under that section is simply that the jurisdiction of the Ugandan courts is confined to crimes committed within the territory of Uganda. Subsection 2 however provides for an exception where offences committed outside Uganda can be tried in Uganda. It provides that notwithstanding subsection (1), the courts of Uganda shall have jurisdiction to try offences created under sections 23, 24, 25, 26, 27 and 28vcommitted outside Uganda by a Uganda citizen or person ordinarily resident in Uganda. These include treason, acts intended to annoy the person of the president, concealment of treason, terrorism, promoting war on chiefs, etc… Subsection 3 further states that for the avoidance of doubt, the offences referred to in subsection (2) committed outside Uganda by a Ugandan citizen or a person ordinarily resident in Uganda shall be dealt with as if they had been committed in Uganda. It is important to note that sometimes an offence can be committed partly within Uganda and partly outside Uganda. In this case section 5 of the Penal Code applies which stipulates that ; When an act which, if wholly done within the jurisdiction of the court, would be an offence against this Code is done partly within and partly beyond the jurisdiction, every person who within the jurisdiction does or makes any part of such act may be tried and punished under this Code in the same manner as if such act had been done wholly within the jurisdiction It should be noted however that under international law, there is no restriction on the competence of the court to prosecute its own nationals for crimes committed outside its territorial jurisdiction if this right to national jurisdiction is conferred by statute. (National jurisdiction). Uganda vs Mustapha Atama 1975 HCB 254 In this case, the accused a Kampala business man was charged in the chief magistrate’s court with obtaining money by false pretence contrary to section 9 of the PCA cap 106. The prosecution alleged that the accused while in the Republic of Zaire obtained shs 3360/- from the charge-d’ affaires of the Ugandan embassy by falsely pretending that he required the money for the maintenance of eight Ugandan soldiers who were stranded in Zaire while on an official mission. The question was whether Ugandan Courts had jurisdiction over the matter as the offence had been committed in the Republic of Zaire, though in Uganda’s own embassy. Held; Where as the state is competent to prosecute its own nationals for offences committed abroad on the basis of nationality, however exercise of jurisdiction on the basis of nationality is not automatic, but municipal courts must be enabled to do so by legislation. Section 5 of the PCA confers jurisdiction to the courts of Uganda to try offences that are committed partly within and partly without Uganda. In the absence of law enabling Ugandan courts to try cases committed wholly outside Uganda, the nationality principle will not apply. Leo Kahigwa and Amirali Karamali Rashid v Uganda [1964] 1 EA 451 The first appellant was charged with theft as an agent of 547 bags of coffee entrusted to him to take from the Congo through the Uganda Customs post at Mpondwe for delivery to an agent of Ralli Brothers at Kasese, Uganda. The coffee was bought in the Congo by one B., the complainant, who put the first appellant in charge of the four lorries which were conveying the coffee to Uganda. The
The other area of jurisdiction is provided for under S.34, which is different from S. 31, it provides that Subject to the provisions relating to transfer conferred by this Act, every offence shall ordinarily be inquired into or tried by a court within the local limits of whose jurisdiction it was committed Where the offence is committed partly an offence is committed partly in one local area and partly in another, any court having jurisdiction in either the two places may hear the case. As provided for under S.37 of the MCA. For example if property is stolen in Kampala and received in Masindi, a case on a charge of theft or receiving stolen property may be tried either in Kampala or Masindi.
3. Power to try cases. Even where an offence is committed in Uganda within the territorial boundaries and is committed within the local limits of jurisdiction of a particular magisterial area, the judicial officer handling the case will still have to ask himself the question whether he has powers to try the case, or whether the court he presides over, has jurisdiction to hear the case. The power to try cases is based on the fact that some cases originate from the Magistrate Courts to the High court while others originate from the High Court. Judicial functions are carried out by judges and magistrates and in order to ascertain which of these judicial officers have jurisdiction to try a case, we have to look at the power to try cases. For example; The Anti Terrorism Act No 14 of 2002 section 6, provides thus; The offence of terrorism and any other offence punishable by more than ten years imprisonment under this act are triable only by the high cour t and bail in respect of those offences may be granted only by the Highcourt. This means that the high court and only the high court has powers to try the offence of terrorism under the Anti terrorism Act as stressed by Court in Uganda Law Society v Attorney General. (Constitutional petition no 18 of 2005;) In regard to magistrates, they are divided into grades. S.4(2) MCA provides for the 3 grades of magistrates that is Chief Magistrate, Magistrate Grade one and Magistrate Grade two. Under the Magistrates’ Courts (Amendment) Act 2007, the post of Magistrate Grade III was abolished. S.4(3) provides that the powers and jurisdiction of a magistrate shall be determined by the grade of his or her appointment and the powers and jurisdiction conferred upon that grade by this Act and by any written law for the time being in force. When looking at the power to try cases, 3 aspects must be dealt with. That is the jurisdiction, the sentencing powers and the appellate jurisdiction. POWERS OF A CHIEF MAGISTRATE.
The original jurisdiction of a chief magistrate’s court is governed by section 161 (1) (a) MCA. A chief magistrate may try any offence other than an offence in respect of which the maximum penalty is death. Examples of these are murder, treason, rape, aggravated robbery, etc… Sentencing powers of a chief magistrate ; A chief magistrate may pass any sentence authorised by law under section 162(1) (a) MCA. This means that he can pass a maximum sentence of imprisonment for life and can impose a fine of any amount. that attempt to commit rape S. Appellate jurisdiction. ; A chief magistrate hears appeals from decisions of magistrates Grade II This is provided for under section 204(1)(b) MCA. POWERS OF A MAGISTRATE GRADE I A magistrate Grade I may try any offence other than an offence in respect of which the maximum penalty is death or imprisonment for life. This is stipulated under section 161 (1) b) MCA. i.e abduction 126.-7 years. Sentencing powers of a magistrate grade I ; Under section 162 I) b) MCA, as amended provides that a magistrate grade I may pass a sentence of imprisonment for a period not exceeding ten years or a fine not exceeding Four million, Eight Hundred Thousand Shillings or both. In the case of Uganda vs Nicholas Okello (1984) HCB 22 The charge in this case was for attempted defilement contrary to section 123 (3) pc cap 106 of which the maximum sentence was 18 years imprisonment. The magistrate grade I tried this offence and sentenced the accused to 18 years imprisonment. He appealed against sentence and conviction. It was held that the magistrate had no powers to try such offence and therefore the trial was a nullity. POWERS OF A MAGISTRATE GRADE II The magistrate grade II may try any offence under any written law other than the offences and punishments specified in the first schedule of the MCA. Section 161 (1)c) MCA The sentencing powers of a magistrate grade II are limited to imprisonment for a period not exceeding three years or a fine not exceeding half a million shillings. S. 162 (1) c) MCA. In the case of Uganda v Kiwanuka [1979] HCB 210. In this case the magistrate grade II tried the accused of an offence brought under the fire arms act, which was an offence stipulated under the first schedule to the MCA to which a magistrate grade II had no powers to try.
d) Such subordinate courts as parliament may by law establish Jurisdiction of the Supreme Court. The supreme court of Uganda is a superior court of record and a final court. It doesn’t have original jurisdiction like the High court but only has appellate jurisdiction, meaning that it hears appeals from the court of appeal. (Court of Appeal rules, directions 1996), art. 132(2) of the constitution. Jurisdiction of the Court of Appeal. It has appellate jurisdiction and hears appeals from decisions of the High court. Art. 134(2) It also has powers to hear cases or petitions regarding any question as to the interpretation of the constitution. Art. 137. it is a constitutional court. Jurisdiction of the High Court Art 139(1) confers on the High court unlimited original jurisdiction in all matters with such appellate and other jurisdictions as may be conferred on it by the constitution or any other law. The High Court therefore has unlimited jurisdiction over all criminal matters. Trail before the High Court is governed by the provision of the Trial on Indictments Act (TIA). S.1 T.I.A cap 23 provides that the high court has jurisdiction to try any offence under any written law and may pass any sentence authorised by law. EXCEPT, that no criminal case can be brought under the cognisance of the High court for trial unless the accused person has been committed for trial to the high court in accordance with the MCA. Committal proceedings. Committal proceedings are governed by S. 168 of the MCA. It is provided under subsection (1) that when a person is charged in a magistrate’s court with an offence to be tried by the High Court, the Director of Public Prosecutions shall file in the magistrate’s court an indictment and a summary of the case signed by him or her or by an officer authorised by him or her in that behalf acting in accordance with his or her general or special instructions. (2) The summary of the case referred to in subsection (1) shall contain such particulars as are necessary to give the accused person reasonable information as to the nature of the offence with which he or she is charged. (3) When a person charged with an offence to be tried by the High Court appears before a magistrate and the Director of Public Prosecutions has complied with subsection (1), the magistrate shall— (a) give the accused person a copy of the indictment together with the summary of the case;
(b) read out the indictment and the summary of the case and explain to the accused person the nature of the accusation against him or her in a language he or she understands and inform him or her that he or she is not required to plead to the indictment; (c) commit the accused person for trial by the High Court and transmit to the registrar of the High Court copies of the indictment and of the summary of the case. (4) If a person committed for trial by the High Court is on bail granted by any court, without prejudice to his or her right to apply to the High Court for bail, the bail shall lapse, and the magistrate shall remand him or her in custody pending his or her trial. This section was challenged in the case of Sam Kuteesa v Attorney General and was declared null and void. Sam Kuteesa and Ors v Attorney General CONSTITUTIONAL PETITION NO.46 OF 2011 The petitioners challenged the constitutionality of section 168 (4) of the Magistrate’s Courts Act vis- à-vis Article 23 (6) (a) of the Constitution. They sought court to declare and order that the impugned section is inconsistent with and in contravention of the constitution, that bail granted by a Magistrate to an accused does not lapse by reason of that person being committed for trial to the High Court and that the committing Magistrate’s court has power to maintain or grant bail to the person being committed. Held; To the extent that section 168 (4) allows an inferior court to cancel the bail granted to an accused by a superior court, such as the High Court, which has unlimited original jurisdiction in all matters and to which decisions of inferior courts go by way of appeal under Article 139 , is in our view, inconsistent with the said Article 139. It is also in contradiction with section (4) of the Judicature Act, cap.13. Where, therefore, a court of law, in the exercise of its judicious discretion, as part of judicial power, decides to grant bail to a person arrested in respect of a criminal offence, it would be contrary to Article 126 (1) of the Constitution, for another court, by the authority of section 168 (4) of the Magistrates Courts Act, to override the decision granting bail by automatically lapsing the same on the sole ground that the person, the subject of the bail, is being committed to the High Court for trial. That section 168 (4) rescinds the constitutionally guaranteed power of the court to grant bail, through the court’s exercise of its discretion. It acts counter to the fundamental right of an accused person to apply for and receive the discretionary consideration of the court before which such accused person is brought, to maintain the already granted, or to grant bail. Its purpose and effect, if construed in accordance with the 1995 Constitution, results in its being contrary to Articles 23 (6) (a) and 28 (1) of the Constitution
Below are unit disciplinary committees that are seized with jurisdiction to try and determine various types of offences with the exception of serious ones like murder, robbery and rape. When looking at the structure of the Military courts, there is no doubt they are special courts compared with the ordinary civil courts, referred to as courts of judicature envisaged under art.129(1) of the constitution. Looking at the GCM, appeals from that court go to the Court Martial Court of Appeal court and appeals from that court go to the Court of Appeal of Uganda and not the High Court and eventually to the Supreme Court. They deal with different fact situations. - Court martial courts are not courts of judicature but military courts. Unlike the other special courts like Industrial court, Tax Appeals Tribunals and, decisions from the GCM are not appealable to the High Court but to the Court Martial Court of Appeal. EXTRADITION The Law applicable is the Extradition Act Cap 117. This is an aspect of jurisdiction which deals with the process of surrendering a fugitive offender from the surrendering country (Uganda) to the country where he committed the offence known as the requesting country for the purpose of having him/her tried and sentenced for that offence. It should be noted that extradition can only be demanded pursuant to an extradition treaty between the two states i.e the requesting state and the surrendering state. There is no legal obligation to extradite in the absence of a treaty or an agreement between the states. S. 2 provides that where an arrangement has been made with any country with respect to the surrender to that country of any fugitive criminal, the Minister may, by statutory instrument, order that this Part of this Act shall apply in the case of that country subject to such conditions, exceptions and qualifications as may be specified in the order, and this Part shall apply accordingly. Every order made under this section shall be laid before Parliament. The extradition Act under S.4 retains the reciprocal relationship between Uganda and other commonwealth countries. As such the absence of reciprocal provisions or non existence of arrangements with a particular commonwealth country can lead to the discontinuance of the extradition provisions with that country.
Thus S.5 provides that Whenever it appears to the Minister that the law of a country to which section 4(1) applies no longer contains reciprocal provisions or that an arrangement with any country referred to in section 4(2) is no longer in force, the Minister may, by statutory instrument, discontinue the application of this Part of this Act to that country Definitions It is clear that the Act applies to fugitive criminals making it necessary to define this. Who is a fugitive criminal for purposes of the Extradition Act? S.1 c) defines a fugitive criminal as any person accused or convicted of an extradition crime within the jurisdiction of any other country who is in or suspected of being in Uganda. What is an extraditable crime? Under the extradition act cap 117, it is important first to establish if the offence is actually extraditable or not. An Extraditable crime under section 28 of the Act is a crime which if committed within the jurisdiction of Uganda, would be an indictable offence described in the schedule to the act. For example, criminal homicide and similar offences, abduction, rape, defilement, bigamy, etc… theft is not an extraditable offence. Therefore to qualify as an extraditable offence,; a) it must be indictable in Uganda if committed there. i.e it must be an offence under our laws- chewing gum on the street is not an offence in Uganda but it is in Singapore… so Uganda would not extradite a Singaporean or any other fugitive for having chewed gum while on the streets of Singapore. (not to flush after use of a public restroom) b) it must be an offence described in the schedule to the Act. It may be an indictable offence in Uganda but not described in the schedule. For example theft is not listed as an indictable offence under the schedule. R v Governor of Brixton Prison, Ex parte Gardner Warrants for the arrest of the applicant were issued in New Zealand, mainly in each instance in respect of an alleged obtaining of a particular sum of money with intent to defraud by means of false pretences, the particulars of the false pretences being that the applicant falsely represented that a company with which he was concerned would supply certain named distributors with cosmetics to a named value. The applicant was arrested in England; the Secretary of State, pursuant to s 5 a of the Fugitive Offenders Act 1967, issued an authority to proceed, and the applicant was committed to prison pending his extradition to New Zealand. On an application for habeas corpus, a preliminary point of law was taken that the charges disclosed on the warrants did not disclose an offence known to English law, in that the particulars of the offence alleged described the false pretences as a
everything that is done during the period of a political uprising can be said to be of a political character. According to Hawkins J, the expression “political character” means incidental to or forming part of a political uprising. In R v Meunier (1891) 1 QB 149 The accused was an anarchist in france. He was charged there with wilfully causing two explosions killing two people in a café and another at a military barracks after which he escaped to England where extradition proceedings were started against him and he was arrested. It was argued that the incident at the café was not an offence of a political character. The question to be answered was whether the incident or the attack at the barracks amounted to an offence of a political character. It was held that in order to constitute an offence of a political character, there must be two parties in a state, one struggling to impose a government of its own over the other and the offence must have been committed in pursuance of that objective. Meunier’s conduct didn’t fall within this description. Question Kony attempts to murder the vice president of Uganda while in Newyork. He flees the country and takes refuge in Sweden. The United States government then institutes extradition proceedings against Kony in a Swedish court. In your view, do you think Kony’s lawyers would successfully raise the defence of the offence being of a political character against the extradition proceedings? In Cheng v the governor of Pentoville Prison (1973) 2 WLR 746 The applicant was a member of a Formosan organisation in the United States of America, which was dedicated to the overthrow of the existing regime in Taiwan. The organisation planned a demonstration in the State of New York against the visit of a prominent member of the regime. The applicant was present when, in the course of the demonstration, a shot was fired. The applicant was charged with, and convicted of, the attempted murder of the Taiwanese visitor, contrary to the New York State Penal Law. He was granted bail pending sentence. While on bail, he fled to Sweden. Sweden acceded to a request for his extradition and he was in the process of being returned by air to the United States when he fell ill. He was landed at London airport and taken to a prison hospital where he was detained pursuant to the Aliens Order 1953 a. A request was made by the United States for his extradition. He was brought before the chief metropolitan magistrate at Bow Street, who ordered him to be detained in prison pending his extradition. The applicant applied for a writ of habeas corpus, contending that the offence in respect of which his extradition was sought was ‘one of a political character’ within the meaning of s 3 b of the Extradition Act 1870. Held
The application would be refused for (i) on the true construction of s 3 the words ‘offence … of a political character’ referred only to an offence of a political character as between the applicant and the state requesting his extradition, and did not extend to an offence of a political character between him and any other state ; and (ii) on the evidence the applicant and the United States were not at odds on an issue connected with the political control or government of the United States It was held on further appeal that this wasn’t an offence of a political character because the offender had not been taking political action against the American government. It was further stated that the American government was not concerned with its relation with Taiwan asking for extradition. The American government was merely concerned with the enforcement of its American criminal laws. 2..The second restriction on surrender is that the offence must be the extradition crime and not any other. S.3(b) provides that the fugitive criminal shall not be surrendered unless it is proved that there exists a law or arrangement in the country seeking his surrender that he shall not, unless he or she has been restored or has had an opportunity of returning to Uganda be detained or tried in that country for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded. That is it must be proved to Uganda that once the fugitive is extradited, he shall only be tried for the offence for which the extradition was sought and granted. (If they come up with any other offence then the criminal must be given an opportunity to be returned to Uganda.
- another restriction is where the fugitive is a criminal in the surrendering state. S.3 C) provides that if a fugitive criminal is being accused for having committed an offence in Uganda, not being the offence for which his or her surrender is sought, or is undergoing sentence under any conviction in Uganda, he shall not be surrendered until after he or she has been discharged either by acquittal or by expiration of his sentence
- Finally, under section 4 d), a fugitive criminal shall not be surrendered by the Ugandan authorities until the expiration of fifteen days from the date of his or her being committed to prison to await his or her surrender.. Who can be extradited? s.1 c) a fugitive criminal- any person accused of an extraditable crime committed outside Uganda Secondly, s.7, every person who is accused or convicted of; counselling, Procurer, Aider and abettor, Accessory after the fact- The above means that a fugitive criminal and or parties to the crime can be extradited. **Procedure for the surrender of criminals under cap 117.
- Requisition.**
After the magistrate has determined that the crime is an extradition crime, and has also proved that the foreign warrant is duly authenticated, then the magistrate will commit the fugitive criminal to prison to await the warrant of surrender from the minister. (s.11) The minister shall then send a report on the case and a certified copy of the warrant of apprehension to the minister for his perusal. The magistrate shall then be required to inform the fugitive that he will not be surrendered until the expiration of fifteen days and that he or she has a right to apply for an order of habeas corpus. Upon the expiration of the fifteen days, the minister shall if no other orders are made, may by warrant order the fugitive criminal to be surrendered to such person duly authorised to receive the fugitive. S.12 (2) If the fugitive criminal is not surrendered and conveyed out of the country within two months after the committal, any judge of the high court may order that the criminal be discharged out of custody unless sufficient cause is shown to the contrary. S. CRIMINAL SUMMONS A criminal summon is a simple court document that contains a number of facts justifying an inquiry into a complaint against an accused person and requiring him to attend the inquiry. In other words, it is a document, issued by the court to be served on the person addressed in it, requiring that person to appear before court on the date specified in the document to answer charges brought against him/her. Forms and contents of a criminal summons. According to section 44 (1) of the MCA, every summons must be in writing, prepared in duplicate, signed and sealed by the magistrate or such other officer as the chief justice may from time to time direct. S.44(2) every summons must be directed to the person summoned and shall require him or her to appear at a place, date, time indicated therein before the court having jurisdiction to inquire into and deal with the complaint or charge. S.44(3) a summons must also state shortly the offence with which the person against whom it is issued is charged. This is basically for purposes of letting the accused know and prepare for the charge he is being compelled to answer. Service of Summons Service of summons to accused personally According to section 45 (1) MCA, every summons must be served by a police officer or an officer of the court issuing it or any public servant but in practice, a summons is served by a police officer or an officer of the court called a process server. A summons must be served onto the person to whom it is addressed personally but the section states, if practicable. The summons is served on the accused by giving him a duplicate of the summons and in practice he must sign the original copy of the summons. S.45(2) MCA provides that every person on whom a
summons is so served shall, if so required by the serving officer, sign a receipt of it on the back of the original summons. Service of summons when person/accused cannot be found. Sometimes it may not be possible after the exercise of due diligence to serve the accused personally, in which case service of the summons may be effected by leaving the duplicate of the summons for the accused with an adult member of the family or the accused’s servant who normally resides with him, or by leaving it with his employer. The person with whom the summons is left, if so required by the process server, must sign receipt of it on the back of the original summons. S. 46 MCA provides that where the person summoned cannot, by the exercise of due diligence be found, the summons may be served by leaving the duplicate for the person with some adult member of his or her family or with his or her servant residing with him or her or with his or her employer; and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt of it on the back of the original. Procedure when service cannot be effected. S.47 MCA, if service in the manner provided by sections 45 & 46 of the MCA cannot by the exercise of due diligence, be effected, the serving officer shall affix the duplicate of the summons to some conspicuous part of the house or home stead in which the person summoned ordinarily resides, and thereupon the summons shall be deemed to have been duly served. Service of a criminal summons on a company. It is common knowledge that in law a body corporate is a legal person criminally liable except in certain cases, to the same extent as a natural person. For this reason, provision has been made for compelling a body corporate to answer charges against it in a court of law. According to section 49 of the MCA, service of summons on an incorporated company or other body corporate may be effected by serving it on the secretary, local manager or other principal officer of the corporation or by registered letter addressed to the chief officer of the corporation or by registered letter addressed to the chief officer of the corporation at the registered office of the company or body corporate in Uganda. Service of criminal summons on a body corporate can be done by sending the summons by registered mail addressed to the chief officer of the company, secretary, local manager or other principal officer of the company. These officers of a company are deemed competent to plead on behalf of the company. Proof that service was effected. Under section 50, a summons may be served at any place in Uganda. So sometimes it may be necessary to prove that a summons was served especially
That on the 29th^ day of February, 2007 I proceeded to the accused’s place of residence at Wamala village Ngando Butambala, a place well known to me. That on reaching the accused’s place I found there his son who identified himself to me as Asuman Ddumba and son to the accused. That I asked him for the father but he told me that he was not aware of his whereabouts since he had just returned from School where he takes his studies. He however suspected him to have gone to Ngando town. That I ordered a Boda Boda man one Rashid to take me Ngando town but upon reaching Nganda, I didn’t find the accused. That I ordered the Boda Boda man to take me Bulo town and it was on our way to Bulo that I met the accused at a lady’s place of residence identified to me by the Boda Boda man, as Hajjati Nazziwa alias Mrs. Kagga. That we stopped and I branched off to Hajjati Nazziwa’s home from where I served the accused with a copy of the summons. That on service the accused told me that he was advised by his children not to appear before court. That I asked him to sign on my original summons which he refused and instead he pleaded to me not to mention that I ever met him any where for service of the same. That I left him with the duplicate copy of the summons and returned with the original un signed. That I swear this affidavit as proof of service of the summons in this matter. That what is stated is true to the best of my knowledge. SWORN BY THE SAID J.J WILFRED at Kampala this ……………………………………. …………day of……………………………2007 DEPONENT BEFORE ME ……………………………………………… COMMISSIONER FOR OATHS
ARRESTS
Meaning of Arrest. An arrest is the deprivation of liberty for the purpose of compelling a person to appear in court or other authority to answer a criminal charge or to testify against another person. It usually involves the taking of the person arrested in custody whereby he is detained or confined. Every individual in Uganda has a constitutional protection as to personal liberty enshrined in the Bill of rights.( Article 23) Arresting a person therefore means interfering with his personal liberty. Therefore, a person will not be deprived of his liberty save as may be authorized by law. Method of Arrest. Section 2(1) of the CPC provides that in the making of an arrest the police officer making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. Therefore the forms of arrest include; a. Touching the body of the person to be arrested; this is usually by way of handcuffs, b. Confinement- keeping the arrested person in custody, and c. Submission- where the accused consents to be arrested and submits himself to authorities. Use of force in effecting arrest If such a person forcibly resists the endeavor to arrest him or attempts to evade the arrest, such police officer or other person making the arrest may use all means necessary to effect the arrest. However, there is an important proviso qualifying the use of force to the effect that nothing contained in this section 2 of the CPC shall be deemed to justify the use of greater force than is reasonable in the circumstances in which it is employed or is necessary for the apprehension of the offender. S.2(2) & (3) of the CPC. In other words, only reasonably necessary force is allowed to be used in order to effect an arrest. Excessive or unwarranted force is unlawful. There is no need to touch the person being arrested if he agrees to go with the person effecting arrest without resistance or argument. Restraint of the arrested person Under section 5 of the CPC, it is provided that a person arrested should not be subjected to more restraint than is necessary to prevent his or her escape.,
