Is it lawful for police to use excessive force in effecting an arrest? - Justice Centres Uganda
legal advice_police brutality

Is it lawful for police to use excessive force in effecting an arrest?

No, it’s not. Police is mandated to use reasonable force to effect an arrest.

What amounts to reasonable force? It is defined as force that is proportionate and always at the minimal level necessary. For example, it’s not reasonable to use a firearm in arresting a handcuffed person or a person who is unarmed and poses no risk of danger.

The police’s mandate is …

  • Maintain security within Uganda
  • Enforce law and order
  • Ensure public safety and order
  • Detect and prevent crime
  • Protect life and property

When can the police arrest a person?

  • For preventive purposes where there is reasonable cause that one wants to commit physical injury or cause loss or damage to property or to prevent one from committing an offence against public decency.
  • When one is suspected to having committed or is about to commit a crime
  • For purposes of bringing one before a competent court of authority.
  • On execution of bond with or without a surety where provision is made for him or her to appear at regular intervals before a senior police officer.
  • Where one has committed a  breach of peace.
  • Where one has or is hindering a police officer executing his or her duties.
  • Where one has escaped or attempts to escape from lawful custody.
  • Upon reasonable terms and conditions by IGP ( Inspector General of Police) in writing.

Under what lawful circumstances can an arrest be effected?

The police officer or any other person effecting the arrest shall touch or confine the body of the person to be arrested unless there is submission to the custody by word or action.

What happens if the person to be arrested resists or attempts to evade the arrest?

All means necessary can be used to effect the arrest!

Greater force must not be used but reasonable force necessary in the circumstances.

When can police use a firearm to conduct an arrest?

  1. If there is reason to believe that the offender will not heed the warning that a firearm will be used and there is no other option but to use the firearm.
  2. If there is a risk of serious bodily harm to the person making the arrest, e.g. if the person being arrested also uses a firearm to resist arrest.

What remedy do I have if I was brutally arrested by the Police?

There are three different legal avenues you can take when you were assaulted or injured by a police officer.

1. Lodge a complaint with Uganda Human Rights Commission (UHRC)

UHRC was established by the 1995 constitution of the Republic of Uganda and its mandated to investigate and handle matters involving human rights violations .

2. Institute a criminal case

Any person who believes he/ she has been or was brutalized by a police officer can open up a criminal case.  Charges of assault, grievous bodily harm and others can be instituted.  Charges of murder can be preferred in the event of death- this can be done by the family of the deceased. It’s also important to note that the family of the deceased can as well open up a criminal case.

3. Lodge a civil case in a competent court

An action of negligence can be made against a police officer in person and the Attorney General who is sued in the capacity as a master or an employer of the police officer under the principle of vicarious liability. The Attorney General is sued for acts done by the police officer in the exercise of his or her duties even when they are done contrary to its orders but done wantonly, recklessly  or even negligently.

1. The process to lodge a complaint with Uganda Human Rights Commission (UHRC)

  1. The complaint can be made either by email, telephone or in person at the Commission offices.

Note: The complaint must be a human rights violation for example where a police officer physically assaults a person by beating, shooting or any other way unwarranted in the circumstances.

The complaint must be recorded within 5 years from the time the violation happened unless proof of inability to report a complaint within the prescribed time is showed e.g. that the victim has since been ill  suffering an injury from the violation and wasn’t able to make his or her complaint within the 5 year period.

  1. After the complaint is registered by a receiving officer the file is forwarded to the Regional Human Rights Officer (RHRO) for assessment as to whether it’s worth an investigation.
  2. The RHRO after proper assessment and after determining that the case is worth an investigation, will allocate the file to an investigating officer.
  3. The investigating officer upon receiving the file shall within 7 (seven)  days send an allegation letter to the respondent (person against whom the complaint is made) and the respondent will be required to make his/ her reply within 21 (twenty one) days upon receipt of the allegation letter.
  4. Where no reply is made by the respondent, the handling officer shall forward a reminder to the respondent allowing him/ her more 7 (seven) days.
  5. The complainant shall within 45 (forty five) days of registering the complaint bring his or her witnesses to the commission and in circumstances where they are unable to travel to the commission offices, a field investigation can be undertaken.
  6. The investigating officer shall within 1 month furnish an investigation report to the RHRO. Upon reviewing the report, the RHRO makes a recommendation to proceed with the complaint or not. Where the recommendation is not to proceed with the complaint, the RHRO will inform the complainant in writing and issue a notice of inability to continue and inform the complainant of their right to appeal for review before the director within 30 (thirty) days.
  7. Where the recommendation from the RHRO is for further or alternative action (like mediation), the file shall be returned to the investigating officer who shall carry out remedial actions within 21 (twenty one) days. Where the RHRO recommends the file to proceed further (to the tribunal for litigation) the  file will be forwarded to the legal officer for a legal opinion to  be written within one month upon receiving the file.
  8. The RHRO will review the legal opinion and decide either to endorse the recommendations in the legal opinion, recommend further or different action or issue the complainant with a notice of inability to proceed with the complaint and inform the complainant of the right to appeal for review before the director within 30 (thirty) days.
  9. Where the file is recommended for further or alternative action, the file shall be forwarded back to the legal officer who shall carry out remedial actions within 21 (twenty one)
  10. Where the recommendation from the RHRO is to proceed further (to the tribunal for litigation) with the complaint, the file shall be forwarded to the director with a legal opinion made by the RHRO.
  11. Within 30 days of receiving the file, the director shall make a final decision whether to proceed with the complaint as recommended by RHRO or substitute or add to the recommendation or remit the file to the legal or investigating officer for further or alternative action through the RHRO.
  12. Where the director decides that the dispute proceeds to the tribunal, the director shall within 1 month of receiving the file, write to all the concerned parties informing them of the action taken on the matter e.g. it has been set down for hearing.
  13. The Chairperson of the UHRC allocates files to commissioners who will hear all the evidence and determine the matter.
  14. Where the tribunal determines there has been an infringement on human rights, it can make orders such as: release of the detained or restricted person, payment of compensation or any other relief or redress.

2. The process to institute a criminal case

  1. Report at the nearest police station and make a complaint
  2. The police officer will record a statement and give you a reference number
  3. The police officer will summon  your witnesses and also summon the suspect to record his/ her statement.
  4. The Investigating officer will carry out all investigations  and after compiling the file will forward the same to the State Attorney  for approval  for court hearing.
  5. If State Attorney deems that the evidence shared by the investigating officcer is sufficient, the State Attorney will present the file to court and hearing will commence.
  6. After hearing all evidence, the court will pass its judgment and upon conviction pass a sentence against the convict. (Court can give sentences basing on the offence committed and such sentences or punishments may include imprisonment and payment of court fines or both).

3. The process of lodging a civil case in a competent court

  1. File a plaint (written complaint or allegation) together with all its attachments, extract court summons.
  2. Make court fees assessments (this is done at court) and pay in the bank.
  3. File at court and pick the summons after they have been signed by the allocated judicial officer.
  4. The defendant (a person against whom a case is reported) shall be required to file their written statement of defence within 21 (twenty one) days of receipt of the summons.
  5. When the defence is filed at court, extract hearing notices for the case to be heard and determined.
  6. Upon listening to all the evidence from both sides, the court will deliver its judgment.
  7. Court can grant any orders as prayed for by the  plaintiff (the person who filed a case at court) and these can include compensation, damages, costs of the suit etc.

How JCU supports you

_ Legal sensitization especially during police outreaches and radio talk shows

_ Legal advice

_ Mediation and Court representation when the case has merit

_ Making referrals to other organizations that deal in this area

Referral institutions

_ UHRC (Uganda Human Rights Commission)

_ FHRI (Foundation for Human Rights Initiative)

Legal sources:

_ The Police Act CAP

_The UHRC; guidelines on the conditions of arrests, police custody and pre_trial detention in Uganda

_ Byarugaba V Uganda [1973]1E.A  234

 

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