By Silas-Kishi Shakumu It is with great enthusiasm that I note human beings have a tendency to create situations and then cry foul about them. My colleagues and I have with great interest followed the government complaints about the conditions in our police cells. What is of great interest is that the government and those detained in police cells have many things in common, inter alia they both complain about cells that are overcrowded and filthy. If one were to observe the situation further, one would note that both parties (the government and detainees) are concerned about security and lack of resources needed to sustain our police cells in a human condition. Depending on who we are, we look at the situation differently. If you are a religious person, you would say the world has come to an end and those in custody should wait for Jesus to free them. If you are an economist, you would say the cause of the problem is lack of proper budgeting or allocation of resources to the most needy state departments. On the other hand, if you are a legal mind, you would say our police cells are overcrowded because there is a great deal of non-compliance with the law on arrest and detention. In this article I reason that the state of our police cells is self-created as a result of random, unnecessary arrest and detention. I am of the view that if the police strictly confine themselves to what the law prescribes, the situation can be corrected at the lowest cost and immediately. As my starting point, I will opine that our police cells are overcrowded because the justice officers overcrowd them. They overcrowd police cells because they possibly think suspects should always be arrested and detained (no matter the capacity of the holding facility). This inference rather than a conclusion, creates the question: Why and when should suspects be arrested and detained? Arrest and detention: Enemy Number One I am of the view that our cells are overcrowded because there are unnecessary arrests and detentions. The law is clear on arrest and detention. It provides that the purpose of arrest is mainly to bring a person before a court of law so that that person can be charged, tried and convicted or acquitted. In other words, a person must only be arrested and detained if circumstances are such that, unless the person is detained, he will abscond (fail to turn up at court). If there are no valid reasons to believe that the person will abscond, then the suspect should not be detained but rather be warned, in terms of the Criminal Procedures Act, to appear in court on a given date. Imagine how many unnecessary arrests and detentions are effected per day and compare such number to the number of suspects released per day. Out of 20 people detained per day, possibly only four get released that day. We are likely to have 100 people detained per week, of which only 20 would be released per week. The other 80 remain in custody until some of them are released on bail (if they have money) or on any other grounds, for example charges being withdrawn. Hence my opinion is that there is more intake of suspects than there is an outtake and this should explain why police cells are overcrowded. I must make it clear that there are situations that warrant arrest and detention inter alia when the suspect is likely to abscond, if he poses danger to society, threatens witnesses, if there are reasonable grounds to believe that he might interfere with the investigations, if his own safety is at risk, etc. In this article, I am specifically referring to situations where the suspect does not fall in one of the above categories. In such a case, I am of the view that the police must summon the accused, or give him a written notice and an indictment to be at court on a specified date. The police must adopt the culture of notifying people to attend court as opposed to arrest and detention of harmless suspects. The police must adopt the culture of notifying people to attend court as opposed to arrest and detention of harmless suspects. Arrest should serve a lawful purpose. The intention of the arresting officer should be to bring the arrested person before a court. This means if the peace officer (police) only wants to carry out an investigation or interrogate the suspect, he should not arrest the suspect. The police must cultivate a culture of sensitivity and reluctance towards arrest. The position of our courts on arrest can be illustrated by reference to the judgment in Duncan v Minister of Law and Order 1984 (3) SA 460 (T) 465 where it was held that: “Should the person effecting the arrest in no way intend to bring the detainee before a court, and arrest him exclusively for other reasons, there can be no lawful arrest.” It means, a person who arrests a suspect in order to punish him or for investigation purposes is guilty of unlawful arrest. This is the normal order of the day in Namibia dating back before independence. In the case of Novick v Minister of Law and Order & Another [1993 (1) SACR 194 (W)] the court loudly and clearly said: “The state is not entitled to hold an accused in custody for purposes of investigation…”. It appears that the law encourages the state to first carry out its investigations and thereafter arrests (if genuinely necessary). A good reason to arrest would be if there is a bona fide belief that the suspect might flee or interfere with the police investigations. The law does not favour unnecessary arrest and/or detention There is a false belief that our law favours arrest. This belief is cemented by the practice in our country where people are randomly arrested and detained. If a person is arrested on a Friday such person is likely to be released on Monday possibly without being charged. The taxpayers have already dished out thousands of dollars as a result of unlawful arrest and detention. Take one good example of the Mr Frederick Johannes Smith incident in October 2002, where Mr Smith and his passenger, Petra Laaser, were arrested and locked up in police cells at Usakos for overtaking the Prime Minister’s motorcade on the road between Arandis and Usakos. They were held in custody until the next day when charges against Laaser were withdrawn. Just for the day Laaser spent in custody, she sued Government for unlawful arrest and for the legal costs that she had to incur in a failed effort to prevent her detention. As an out of court settlement, sources state, Government agreed to pay Laaser N$30 000 as damages for her arrest and overnight detention, and N$45 800 as damages for her legal costs. Hence I opine that arrest should be the last option just like it is to shoot and kill the suspect. The evil of arrest and detention Arrest and detention has an inherent evil. Arrest seriously restricts an individual’s freedom. If such person is employed, he risks losing his job. Arrest affects a person’s dignity in that your living conditions are reduced to that of an animal. I say this because a person is placed in a cage with minimal space to move or sleep. The place smells of urine and other things. Many a time the innocent suspect is placed in these facilities without blankets or mattress and hence compelled to sleep next to a stranger who seems to have such items. Arrest exposes a person to danger and possibly rape. In the case of men, even if you were not sodomized, the general public is likely to look at you as if you were sodomized. In some cases, it places unnecessary financial burdens on the individual when he has to bail himself out. We have or had people in our holding cells who were granted bail of N$250 but could not pay because they were “broke” or “temporarily out of finances”. Overloading the court rolls Our court rolls are saturated with unnecessary cases. Most are postponed for investigations and dockets. In the meantime the accused person is detained. We need to reverse the situation. First investigate, get your paper work in order, then summon the person to court before you arrest. Many unnecessary detentions and bail hearings can be avoided in this way. Paralyzed police bail Some people may argue that in minor cases the law provides for police bail. This type of bail is supposed to benefit those persons arrested for minor offences. My personal experience is that this process is frustrated by the unavailability of investigation officers. Unless the investigating officer has charged the accused a person and agreed to bail, your client will remain in custody. There were times when lawyers would be at the police station for the whole evening just waiting for the investigation officer on duty to arrive. In many cases investigating officers would tell you they are on their way but then switch their cell phones off until the next day. I have been through that and have asked myself the question: Why police bail then? Should I press charges of unprofessional conduct? While your client is in detention over a minor alleged offence, the police officer is nowhere. This is a good example of a situation of first arrest and then investigate. Hence I am arguing that the situation in our police cells is self-created by our ignorance of the law and our will to punish suspects by detaining them. A Dream for community service The desire to keep people out of custody or prison extends to convicted persons. In the year 2002 a seminar on community service was held at Safari Hotel and Conference Centre to look at ways and means to keep convicted people out of prisons. Amongst the brilliant minds present was our own Rudi Cohrssen, a Windhoek-based advocate who in his paper entitled: “Community Service: A Sentence Option for Namibia”, outlined the courts’ position against imprisonment and preference for alternative sentence. He specifically referred to section 297 of the Criminal Procedure Act where our courts are given discretion to suspend sentences, caution or reprimand convicted persons as opposed to imprison- ment. Of great interest is that the learned colleague took the liberty and pleasure to lead the participants through a couple of court cases dating back to 1963 where community service was imposed. He referred inter alia to S v Bock 1963 (3) SA 163 (G); S v Abraham 1990 (1) SACR 172 (C), S v Rossouw 1991 SACR (1) 561 (C); etc. In all these cases the courts expressed their preference for community service as opposed to detention or imprisonment. In the case of S v van Vuuren 1992 (1) SACR 127 (A) an accused person was convicted of theft of over R73 000 from her employer which was a bank. She was sentenced to a prison term of five years partially suspended. On appeal, the Appellate Division held that: “Where the legislature has made provisions for imaginative and socially constructive [out of prison] sentences in section 297 (1) of the Criminal Procedures Act, namely the suspension or postponement of a sentence on condition, inter alia, that an accused perform some or other community services, the courts should see to it that those provisions do not remain a dead letter on the statute book.” The court concluded that the accused would probably not steal again, and therefore did not need rehabilitation or deterrence by being in prison. To sentence her to community service would meet all the requirements of sentencing. I can imagine her singing: “Freedom is coming, tomorrow!” In the premises I am of the view that social scientists and lawyers have one thing in common – detention or imprisonment is in many instances not the answer. Therefore, I think it is not late to reduce the population in our police cells and prisons. The state has legal advisors who are capable of advising it on how to reduce the current population. My opinion is that it will take a single decision to reduce the current population and maintain a lower number of those in custody. It is however not my intention to advice government on how to handle the situation. All I know is that once the population is reduced, the state will definitively no longer carry a heavy financial and security burden. The conditions in police cells and the diet should improve too. As Robert H. Jackson, a US Judge (1892-1954) said: “It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.” I have at least made an attempt, now it’s over to chemists and accountants. I am out. Author employed by Shikongo Law Chambers. Views expressed herein are his own views and not those of his employer.