Mmegi Blogs :: Understanding arrests – Part 1
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Last Updated
Friday 22 June 2018, 06:00 am.
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Understanding arrests – Part 1

An arrest is not bad for the singular reason that it interferes with a constitutional subject’s freedom of movement. It can have dire reputational consequences and can be life defining.
By Kgosietsile Ngakaagae Fri 30 Jun 2017, 19:03 pm (GMT +2)
Mmegi Blogs :: Understanding arrests – Part 1








Once arrested on allegations of rape, for example, a man is distrusted everywhere. He lives on the back-foot, accused even when he is not. Add a charge and you have a complete cocktail of legal misfortunes. It is usually public. Your vindication is almost always private.

The process of an arrest obtains in the touching of the body of a subject. It entails no drama and no use of force. Some police officers understand this, some don’t. Arrests must be conducted with due sensitivity to the dignity of the subject. Arrest powers are not a blank checque for citizen abuse and heavy handedness. Contrary to police practice, an arrest does not require the use of handcuffs. Handcuffs are merely a restraint mechanism. An arresting officer only needs to touch your body and to pronounce an arrest and it is complete.  By practice, touching is done on the shoulder. You can imagine what our good friends in blue would do if they were allowed to touch anywhere.  It is not uncommon for the subject of an arrest to demand an arrest warrant. It is not that straightforward either. You can just as well be arrested without a warrant as with one.  Just as with law enforcement officers a citizen is entitled to effect an arrest where an offence has been committed or where there is reasonable suspicion that an offence is about to be committed. I am not talking about vigilantism or the idiocy you see at the bus rank where a suspect is assailed by a mob. The duty to keep law and order and to ensure the arrest of suspected criminals is shared between law enforcement and society. To demand a warrant as a prerequisite for every arrest would be ludicrous. By the time one is obtained, a suspect could be anywhere between the North and the South Pole.  That is not to say that people can be arrested willy-nilly. Reasonable grounds must exist for suspecting that the subject has committed an offence or is about to. A person effecting an arrest without a warrant, is required to advise the person concerned of the reason for doing so. Without disclosure, the arrest is unlawful and can be resisted.  Once arrested, you have a duty to furnish the police with your names and addresses. Failure to do so constitutes a criminal offence. If you give particulars reasonably suspected to be false, you can be lawfully detained while your identity is being verified. The giving of false particulars is in and of itself an offence. By the way, that does not extend to giving fingerprints. You

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have no obligation to do so. You may choose to if you consider it to be in your best interest. My advice; consult with your lawyer first. The police are only entitled to fingerprints after a conviction. Not before.  Ideally, arrests must happen after completion of investigations. That is by reason of the presumption of innocence. Many suspicions can be verified without an arrest. Regrettably, here at home, arrests almost invariably precede an investigation. That is where our police get it all wrong. Arrests serve to preserve public order, to prevent an escape, and to secure the attendance of a suspect for court.  Arrests aren’t an investigative tool. That is true because once arrested the subject has a right to silence. In more rights conscious countries, suspects are called in for questioning and often released until there is enough evidence to justify an arrest.  Any person who has reasonable suspicion of the commission of an offence, whether they be police or a private subject, are authorised not only to arrest but to pursue a fleeing suspect. That includes the guys who stand by the petrol pumps selling “fake” music disks. A member of the public is authorised to arrest anyone who seeks to sell or pawn to him stolen property. Members of the public are authorised to arrest people involved in affray and to bring them before the police. You are authorized to arrest a person committing an offence in your private property. That includes village thugs who raid funeral fires on Friday nights after 10 o’clock. Where they resist, reasonable force can be used. Persons suspected of being prohibited immigrants for purposes of any law in Botswana can be arrested without warrant. Police officers can arrest individuals seen holding or in possession of housebreaking implements and being unable to account satisfactorily for the same. Where a suspect is being pursued, any other person to whom knowledge of the reason for the pursuit of the suspect is disclosed is entitled to join the pursuit and assist in the arrest. Don’t buy criminal claptrap like “if you touch me I will sue you”. In all, there is no permission for the beating and torture of arrested persons. The authority is to arrest, not to assault. Reasonable force used to enforce an arrest doesn’t constitute an assault. An arrest is in and of itself a violation of constitutional liberties. The violation is permitted in the public interest. Arrests must be conducted with sensitivity to a subject’s dignity. A proper attitude to arrests can reduce the risk of conflict between society and law enforcement. kgosi.feeedback@gmail.com

 

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