The police enjoy considerable powers in the investigation of crime. These include powers to stop and search individuals and vehicles, to arrest and to search premises. Some of these operations may be conducted on their own authority; others require the authorization of a court. This is because the primary responsibility of the police is to maintain law and order in the state.
Arrest is the beginning of imprisonment. An arrest occurs when a police officer states in terms that a person is arrested, when he uses force to restrain the individual concerned, or when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he wants to go. Individuals can be arrested for preventative purposes, that is, in order to terminate a breach of the peace; punitive purposes, for example, to take a person before a magistrate to answer for an offence or to be bound over, and protective purposes, as where inebriated or mentally ill persons are arrested for their own protection. There is no necessary assumption that arrest will be followed by a charge; a police officer who reasonably suspects a person of involvement in an offence may arrest that person with a view to interrogating him in the more formal atmosphere of a police station. The power to arrest must however be exercised for a lawful purpose.
It is proper for the police to arrest on a holding charge provided that they have reasonable grounds for suspecting the person arrested to have committed that offence. The fact that such an arrest is motivated by a desire to investigate another, more serious offence, does not render it invalid. An arrest will, however, be unlawful, even though made on the basis of reasonable suspicion, where the arrester knows at the time of arrest that there is no possibility of a charge made.
Arrest must be justified by some rule of positive law. A police officer who cannot justify his actions by reference to lawful authority is said not to act in the execution of his duty. In determining whether conduct is an unlawful interference with a person’s liberty the court must consider whether such conduct falls within the general scope of any duty imposed by statute or recognized at common law, and whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
Many, albeit not all, powers of arrest, are premised upon the police having reasonable cause to believe that the suspect has committed, is committing or about to commit an offence. The term ‘reasonable cause’ relates to the existence of facts and not to the state of the law. An officer who reasonably but mistakenly, proceeds on a particular view of the law, and thus exercises his power of arrest, does not have reasonable suspicion.
In Sierra Leone, the law provides that every person arresting another must inform the person arrested of the reason for the arrest, either at the time or as soon as practicable thereafter pursuant to the Miranda rule which provides that a criminal suspect in police custody must be informed of certain constitutional rights before being interrogated. Section 17(2)(a) of the Constitution 1991, states that “any person who is arrested or detained shall be informed in writing or in a language that he understands at the time of his arrest, and in any event not later than twenty-four hours, of the facts and grounds for his arrest or detention.” He also has the responsibility under (b) of same to inform the arrested person of “his right of access to a legal practitioner or any person of his choice, and shall be permitted at his own expense to instruct without delay a legal practitioner of his own choice and communicate with him confidently.” Unless this information is given, the arrest is not lawful.
Where a person is arrested for an offence, whether without a warrant or under a warrant not endorsed for bail, the custody officer at the station where he is detained is to determine whether he has sufficient evidence to charge the suspect with the offence for which he is arrested “(a) within ten days from the date of arrest in cases of capital offences, offences carrying life imprisonment and economic and environmental offences; and (b) within seventy-two hours of his arrest in case of other offences;” pursuant to section 17(3) of the Constitution, 1991. If, at the expiry of that time, he has not been charged; “then without prejudice to any further proceedings which may be brought against him shall be released either unconditionally or upon reasonable conditions, including in particular, such conditions as are reasonably necessary to ensure that he appears at a later date for trial or proceedings preliminary to trial.”
The custody officer who considers that there are grounds for holding the suspect, but who determines that he does not have sufficient evidence to charge him, is to release him with or without bail unless he reasonably believes that detention of the suspect is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain evidence by questioning him.
Detention beyond the provisions of the Constitution of Sierra Leone 1991 may be ordered by a court. However, the police must prove to the court that a warrant of further detention is justified. Furthermore, the detainee must be given the reasons why further detention is sought. Any information submitted in support of an application must state the nature of the offence involved, the general nature of the evidence upon which his arrest was based, what inquiries have been made by the police, what further inquiries they propose to make, and the reasons for believing the continued detention of the suspect to be necessary for the purpose of such further inquiries. If the court is not satisfied that a case for further detention has been made out, it may either dismiss the application or adjourn the hearing of it as soon as practicable.
These elaborate provisions as entrenched in our Constitution are being violated with perfect impunity in the north. Law enforcement officials have little regard for the protection of human rights and the rule of law. They take advantage of the mass illiteracy amongst the people to trample on their rights without restrain. One such example is in an alleged larceny case involving a nineteen year old Alieu Tarawallie as the accused. The accused, who was reportedly arrested on the 26th January 2007 at NP roundabout along Azzolini Highway in Makeni, spent three (3) days in a police cell without the police obtaining statement from him neither telling him the reason for his arrest. A statement was only obtained from him on the third day of his arrest contrary to his rights under the Miranda rule.
After the statement had been taken from him, he was again incarcerated for eighteen (18) days in contravention of section 17(3)(b) of the Constitution of Sierra Leone, 1991 before he finally made his first appearance in Magistrate Court No. 1 in Makeni presided over by Magistrate Fanday. In the court, the police prosecutor sent almost every one present aback when he failed to bring charges against the accused for crime he allegedly committed and for which he was arrested and being tried. Compounding the unfair treatment meted out to the accused all the more was that when the police prosecutor fumbled before the presiding Magistrate in court, it was the accused who was at the receiving end as he was again handcuffed and taken to prison without any recourse to the violation of his right as embedded in section 17(3) of our Constitution.
From the foregoing, it is clear that section 17(1) of the Constitution of Sierra Leone 1991, which protects individuals from arbitrary arrest or detention by providing that “no person shall be deprived of his personal liberty,” was flouted with negligence by failure to comply with established standards.
Justice, it should be remembered is a two way street: justice for the prosecution as well as justice for the accused. Premised on the presumption of innocence until proved guilty in the court of law, accused persons in detention should be charged to court and tried without delay. Also important to note is that no person shall be deprived of his personal liberty without due process of the law. Therefore, indigent accused persons should not be made to suffer as a result of the inefficiency of law enforcement officials to execute their responsibilities responsibly. Their lack of competence to handle such matters should not in any way compromise the rights of persons presumed to be in conflict with the law.
In our quest to create a more civilized society rooted deep on the foundations of human rights and the rule of law where individuals can enjoy their rights irrespective of age, sex, colour, region, religion, political inclination, status etc., cases like these are definitely an affront to our democratic aspirations and should be nipped in the bud.