The position of the law

Under Ghanaian law, a police officer may arrest a person with or without a warrant, but the power of arrest is not unlimited. Whether an arrest is lawful depends on compliance with the legal requirements governing the circumstances and manner of the arrest.

ARREST WITH A WARRANT

Where a police officer seeks to arrest you pursuant to a warrant, you are entitled to ask to see the warrant.

A warrant of arrest is issued by a court upon a complaint made on oath and should sufficiently identify the person to be arrested and state the offence in respect of which the arrest is authorized.

You should therefore check whether the warrant relates to you and whether the particulars reasonably identify you as the person against whom it was issued.

A purported arrest pursuant to a warrant that is invalid or improperly executed may constitute an unlawful arrest and you are entitled to RESIST the arrest.

ARREST WITHOUT A WARRANT

The law also permits a police officer, in specified circumstances, to arrest a person without a warrant. These circumstances include where:

- you commit an offence in the presence of the police officer;

- ⁠you obstruct a police officer in the execution of his duty;

- ⁠you escape or attempt to escape from lawful custody;

- ⁠you are found in possession, without reasonable excuse, of an implement

adapted or intended for use to unlawfully enter a building;

- ⁠the police officer reasonably suspects that you have committed or are about to commit an offence and considers that an arrest is necessary to prevent the commission of the offence;

- ⁠the police officer reasonably believes that a warrant has been issued for your arrest; or

- ⁠the police officer reasonably believes that you have committed a criminal offence outside Ghana.

Outside these circumstances authorized by law, a police officer cannot lawfully arrest a person without a warrant.

HOW AN ARREST MUST BE EFFECTED

The law also prescribes how an arrest is to be effected. A police officer making an arrest should first identify himself or herself as a police officer. The officer may then touch or confine the body of the person to be arrested unless the person submits to the arrest, either expressly or by conduct.

More importantly, Article 14(2) of the 1992 Constitution requires a person who is arrested, restricted or detained to be informed immediately, in a language that he or she understands, of the reasons for the arrest, restriction or detention and of the person’s right to a lawyer of his or her choice.

Accordingly, a person who is arrested should not be left uncertain as to why his or her liberty has been taken away.

UNLAWFUL ARREST AND THE RIGHT TO RESIST

An arrest that is not authorized by law, or that is effected in a manner contrary to the requirements of the law, amounts to an unlawful arrest.

However, it is important to understand that the right to resist an unlawful arrest is not an unlimited licence to use violence. The force used must be reasonably necessary and proportionate to the unlawful restraint or interference with one’s liberty.

This principle was recognized in Asante v The Republic [1972] 2 GLR 177.

In that case, the police officer purported to restrain the appellant [Asante] without complying with the legal requirements for a lawful arrest. In his attempt to resist the unlawful arrest, Asante overpowered the police officer, assaulted him and tore his police uniform in the process.

The Court held that the police officer was not acting in the lawful execution of his duty and, accordingly, recognized Asante’s right to resist the unlawful interference with his liberty.

The Court further held, in substance, that where a person is subjected to an unlawful assault or restraint by a police officer, that person may use reasonable force to free himself from the unlawful interference. The Court reasoned that, having regard to the circumstances, the force used by Asante in resisting the unlawful arrest was not unreasonable.

KNOW YOUR RIGHTS

If you believe that an arrest is unlawful, you should, where reasonably possible, state clearly that you do not consent to the arrest, ask for the reason for the arrest, request the assistance of a lawyer, and avoid unnecessary physical confrontation.

The fact that an arrest may ultimately be found to be unlawful does not mean that every act of resistance will automatically be lawful. The circumstances, the nature of the unlawful restraint and the degree of force used will all be relevant.

Know your rights. Know the limits of police power. And know the limits of your own right to resist.

Assalamu alaikum

Lawyer Iddi Muhayu-Deen

#ForGodAndCountry