It is gradually becoming a norm for persons with the power to arrest to exercise their power capriciously, blatantly, wantonly, and in a biased manner. Institutions set up to combat crime are usually given the power to arrest with or without an arrest warrant.
Examples can be made of the Ghana Police Service, the Economic and Organised Crime Office (EOCO), the Narcotics Control Commission (NACOC), and the Office of the Special Prosecutor (OSP), among others.
Therefore, for the purpose of this article, “police” or “police officer” should be construed to include all other persons with the power to arrest.
Arrest Generally
Every person in Ghana, citizen or otherwise, law enforcement personnel or not, has the right to prevent the commission of a crime.
That can be done by arresting a person who is either committing a crime or is reasonably suspected to have committed a crime. This is provided under Section 12 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30).
The said provision empowers every person in Ghana to arrest without a warrant.
However, the said arrest can only be effected by a private person if the offence is committed in his presence and involves use of force/violence, bodily harm to another person, stealing/fraud, or injury to public property or property in the lawful care/custody of the arresting person.
That said, the private person who arrests another person, is required to hand him over to a police officer or take him to the nearest police station.
Arrest by Security/Intelligence Officer
Police, EOCO, NACOC, OSP officers et al, generally have the power to arrest with or without a warrant.
The default position regarding arrest without a warrant is to do so to prevent the commission of a crime or to prevent the escape of a suspect. Section 10 of Act 30 specifies instances where a police officer can arrest a person without a warrant.
The said section can be said to be a rendition of Section 24(2) and (4) of the United Kingdom’s Police and Criminal Evidence Act 1984 which states as follows:
Section 24(2) “If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(4) But the power of summary arrest conferred by subsection (2) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.”
It is important to mention that a police officer does not have the power to arrest a person without a warrant if the reason for the arrest does not fall within that provided under Section 10 of Act 30.
This position was set out in Asante v. The Republic [1972] 2 GLR 177 where the court held that a police officer effecting an arrest without a warrant (under Section 10(a) of Act 30) must inform the person arrested of the cause for arrest, unless the arrest occurs during the commission of an offence or immediately after escape from custody.
My stance is fortified by the legal maxim ‘expressio unius est exclusio alterius,’ to wit ‘the express mention of a thing excludes the other.’
Similar provisions of Section 10 of Act 30 can be found in the acts that created other intelligence/security institutions or agencies with investigative and prosecutorial powers.
For expedient action, a law enforcement officer is not reasonably expected to procure an arrest warrant before effecting an arrest.
However, the proper procedure required of every law-enforcing officer is to procure an arrest warrant before proceeding to arrest a person who does not fall within Section 10 of Act 30.
Stated differently, where a police officer is investigating a matter and a person of interest in needed to assist in investigations, provided that the said person does not fall under the provisions of Section 10 of Act 30, an arrest warrant is required before an arrest can be effected.
It is not a fluke that sections of Act 30 have been arranged chronologically whereby arrest without a warrant comes after arrest with a warrant.
The reading of provisions under ‘Arrest Generally’ makes it abundantly clear that a police officer first needs to consider procuring a warrant of arrest where necessary. It is rather unfortunate that our men and women in uniform have rather elevated the exception to the norm.
Frequent Arrests without a Warrant
I have heard colleagues argue that the police have the discretion to arrest with or without a warrant. My response to that argument is twofold:
- Article 296(a) and (b) of the Constitution 1992 of Ghana mandates them to act fairly and candidly without being arbitrary, capricious or bias; and
- That discretion has been taken away by Section 10 of Act 30, in that they can only arrest without a warrant if any of the conditions listed therein exist.
Considering the reasons proffered immediately supra, I wish to state that the police or any other security/intelligence officer does not have the authority to arrest a person at will.
Except where the arrest is justified by the dictates of Section 10 of Act 30, any other instance of arrest requires an arrest warrant.
Our courts have, ad nauseam, made it abundantly clear that arresting a person without a warrant is wrong if the reason for the arrest does not constitute a criminal offence.
In Ampofo v. The State [1967] GLR 155-167, the court held that a police officer cannot effect an arrest without a warrant for conduct that merely offends the officer’s personal sensibilities but does not constitute a statutory or common law criminal offence; the power to arrest is strictly limited to offences recognized by law.
Also, in the case of Miller v. Attorney-General [1975] 2GLR 31, it was held that a police officer who effects an arrest must have reasonable grounds for suspicion at the actual time of arrest.
Arrest verses Invitation
As has been explained supra, a police officer who seeks to use arrest to procure the attendance of a suspect or person in a matter under investigation needs to do so with the use of a warrant.
The exception to the rule is where the offence was committed in the presence of the officer or the officer has reasonable grounds to suspect that an offence has been committed.
That aside, a police officer can invite a person of interest to appear before him to assist in investigations.
Where the invitation is not honoured, the reasonable remedy available to the officer is to apply to a court of competent jurisdiction for an arrest warrant to be issued.
The norm whereby the police proceed to arrest persons of interest who fail to honor their invitation is wrong and needs to be condemned.
Conclusion
Persons with the power to arrest should refrain from abusing the power they possess. Individuals whose rights are abused either by unlawful or unjustified arrest should consider seeking redress in a court of competent jurisdiction.
Only when individuals enforce their fundamental human rights for personal liberty as enshrined in Article 14 of the Constitution 1992 of Ghana would our democracy thrive.
God bless our homeland, Ghana, and make us great and strong.
The writer is a Legal Practitioner whose email address is peprah.berko@yahoo.com
