The right to liberty

The right to liberty and security of the person

“Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!” – Patrick Henry Speech on Liberty or Death

A human being is not human enough if he or she has no liberty. Liberty is what makes a human being enjoy all other rights inherent to humans. A limitation to one’s liberty is a limitation to the core of their being.

Article 9 of the convention on civil and political rights provides thus:

  1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
  2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
  3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
  4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
  5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

The right to liberty is provided for under the Constitution of Kenya (Article 29), Uganda (Article 23), Rwanda (Article 18), Tanzania (Article 15), South Sudan (Article 12). Those provisions all re-echo what is stated in Article 9 of the Convention on Civil and Political Rights

International Conventions such as the Universal Declaration of Human Rights (Article 3), and the Banjul Charter (Article 6), also provide for the right to liberty.

Rights such as the right not to be held in slavery, and the freedom of movement are complimentary to the right to liberty.

The right to liberty forms the basis of the provision of police bond/bail at no cost and the provision of court bail on terms that may be set by the court.

It is important to note though, that the right to liberty is not absolute. It may be limited under the following circumstances.

If it is in the execution of a sentence or order handed down by a court of law in any country in respect of a criminal offence of which that person is convicted, or an order of a court punishing the person for contempt of court;

If it is in execution of an order of a court made to secure the fulfillment of any obligation imposed on that person by law;

If it is for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of any country;

If it is for the purpose of preventing the spread of an infectious or contagious disease;

In the case of a person who has not attained the age of eighteen years, for the purpose of the education or welfare of that person;

In the case of a person who is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol, for the purpose of the care or treatment of that person or the protection of the community;

If it is for the purpose of preventing the unlawful entry of that person into any country, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from that country or for the purpose of restricting that person while being conveyed through that country in the course of the extradition or removal of that person as a convicted prisoner from that country to another; or

As may be authorised by law, in any other circumstances similar to any of the cases specified the exceptions above.

Upon restriction of a person’s liberty, he or she should be restricted or detained in a place authorized by law. Safe houses, prisons and such other places which are unauthorized by law should not be used to keep any one prisoner. It is common knowledge that most dictatorships and even democracies that are intolerant of opposition secretly run safe houses from where dissenters are kept and tortured. Such practices must be condemned with all the effort necessary and must be looked down upon with all the contempt they deserve.

We have earlier on discussed how arrests should be conducted.

For citizens of every country, especially in East Africa, the people must know their right to liberty and the circumstances under which it may be limited. Most importantly, the law enforcement agencies must be elite, not the kind that we often see, the kind that is power hungry, and happy to wrongly exercise their authority over citizens. Law enforcement reforms are therefore paramount.

BY SAMALI BITALA

This article appears in our weekly digital law magazine, The Deuteronomy Vol 8, Issue 3 of November 18th, 2016

To receive The Deuteronomy in real time, click HERE

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