The rights of arrested persons

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By Hanan el Kathiri

Anyone who is arrested for allegedly committing an offence has their rights protected under the provisions of the Constitution. Article 49 provides for these specific rights.

Rights

An arrested person has the right to be informed promptly, in a language they understand, the reason for the arrest, that they have the right to remain silent and the consequences of not remaining silent.

They have a right to communicate with an advocate, and not to be compelled to make any confession or admission that could be used in evidence against the person; they also have a right to be held separately from persons who are serving a sentence and to be brought before a court as soon as reasonably possible, but not later than 24 hours.

Upon being presented in court, the accused is to be charged or informed of the reason for the continued detention, or to be released. They have a right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons to warrant their holding. A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.

As is evident, once arrested, an accused it required to be brought to court within 24 hours. The contents of the charge sheet are to be read to the accused in a language they understand. The accused can also apply to be released on bail or bond terms that are reasonable.

Purpose of bail/bond

The right to bail is a constitutional right under Article 49 (1) (h) of the Constitution.  It is incumbent upon the state to prove that there are compelling reasons for the accused to not be released.

Should the prosecution establish that there are compelling reasons not to release an accused person on bond, that right can be curtailed. Worth noting is that the right to be released on bail and or bond does not fall among the rights and freedoms that may not be limited under Article 25.

Courts consider several factors when granting or declining bail, which include but are not limited to whether the accused persons are likely to turn up for trial should they be granted bail; whether the accused persons are likely to interfere with witnesses; the nature of the charges; the severity of the sentence; the security of he accused if released on bond, and whether the accused person has a fixed abode within the jurisdiction of the court.

As stated under Article 50(2), every accused person has the right to a fair trial, which includes the right to be presumed. (

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