PART VI
Arrests (ss 27-50)

A. WITHOUT WARRANT (ss 27-36)

[Ch0802s27]27.     Arrest and verbal order to arrest for offences committed in the presence of judicial officers

            (1) It shall be lawful for any judicial officer who has knowledge of any offence by seeing it committed, himself to arrest the offender or by a verbal order to authorize other persons to do so.

            (2) The persons so authorized are empowered and required to follow the offender if he flee, and to execute such order on him out of the presence of such judicial officer.

[Ch0802s28]28.     Arrest by peace officer for offences committed in his presence and on reasonable grounds of suspicion as to certain offences

            Every peace officer and every other officer empowered by law to execute criminal warrants is hereby authorized to arrest without warrant-

     (a)     every person who commits any offence in his presence;

     (b)     every person whom he has reasonable grounds to suspect of having committed-

           (i)       any of the offences specified in the Cap. 08:01 Penal Code, other than the offences specified in such Code and the other enactments as are set out in Part II of the First Schedule to this Act;

          (ii)       any offence, other than an offence specified in the Penal Code, the punishment for which may be a period of imprisonment exceeding six months, without the option of a fine;

          (iii)       any offence, other than an offence specified in the Penal Code, where the law constituting that offence provides that such arrest may be made,

     (c)     every person whom he finds attempting to commit an offence, or clearly manifesting an intention to do so.

[Ch0802s29]29.     When peace officer may arrest without warrant

            (1) Any peace officer may, without any order or warrant, arrest-

     (a)     any person having in his possession any implement of house-breaking, and not being able to account satisfactorily for such possession;

     (b)     any person in whose possession anything is found which it is reasonably suspected is stolen property or property unlawfully obtained, and who is reasonably suspected of having committed an offence with respect to such thing;

     (c)     any person who obstructs a policeman or other peace officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;

     (d)     any person reasonably suspected of being a deserter from the Botswana Police Force;

     (e)     any person being or loitering in any place by night under such circumstances as to afford reasonable grounds for believing that he has committed or is about to commit an offence;

     (f)      any person reasonably suspected of committing or having committed an offence under any law governing the making, supplying, possession or conveyance of intoxicating liquor or of habit-forming drugs or the possession or disposal of arms and ammunition;

     (g)     any person reasonably suspected of being a prohibited immigrant in Botswana for the purpose of any law regulating entry into or residence in Botswana;

     (h)     any person reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law for preventing the theft of stock or produce.

            (2) Whenever it is provided in any law that the arrest of any person may be made by a police officer or constable or other official without warrant, subject to conditions or to the existence of circumstances specified in that law, an arrest by any peace officer, without warrant or order, may be made of such person subject to those conditions or the existence of those circumstances.

[Ch0802s30]30.     Failure to give particulars of name and address to a peace officer constitutes an offence

            (1) A peace officer may call upon-

     (a)     any person whom he has power to arrest;

     (b)     any person reasonably suspected of having committed an offence; and

     (c)     any person who may, in his opinion, be able to give evidence in regard to the commission or suspected commission of any offence,

to furnish such peace officer with his full name and address.

            (2) If any person fails on such demand to furnish his full name and address, the peace officer making the demand may forthwith arrest him; and if any such person on such demand furnishes to such peace officer a name or address which such peace officer upon reasonable grounds suspects to be false, such person may be arrested and detained for a period not exceeding 24 hours until the name and address so furnished have been verified.

            (3) Any person who, when called upon under the provisions of subsection (1) or (2) to furnish his name and address, fails to do so or furnishes a false or incorrect name or address shall be guilty of an offence and liable to a fine not exceeding P60 or, in the discretion of the court, to imprisonment without the option of a fine for a term not exceeding three months.

[Ch0802s31]31.     Arrest by private person for certain offences committed in his presence

            (1) Every private person, in whose presence anyone commits or attempts to commit an offence mentioned in subparagraphs (i), (ii) and (iii) of paragraph (b) of section 28 or who has knowledge that any such offence has been recently committed, is authorized to arrest without warrant or forthwith to pursue the offender; every other private person to whom the purpose of the pursuit has been made known is authorized to join and assist therein.

            (2) Every person is hereby authorized to arrest without warrant any other person whom he believes on reasonable grounds to have committed an offence and to be escaping therefrom, and to be freshly pursued by one whom such private person believes on reasonable grounds to have authority to arrest the escaping person for that offence.

[Ch0802s32]32.     Arrest by private person in case of an affray

            Every private person is authorized to arrest without warrant any person whom he sees engaged in an affray in order to prevent such person from continuing the affray, and to deliver him over to the police authorities to be dealt with according to law.

[Ch0802s33]33.     Owners of property may arrest in certain cases

            The owner of any property on or in respect to which any person is found committing an offence, or any person authorized by such owner, may arrest without warrant the person so found.

[Ch0802s34]34.     Arrest by private persons for certain offences on reasonable suspicion

            Any private person may without warrant, arrest any other person upon reasonable suspicion that such other person has committed any of the offences mentioned in subparagraphs (i), (ii) and (iii) of paragraph (b) of section 28.

[Ch0802s35]35.     Arrest of persons offering stolen property for sale, etc.

            Where anyone may, without warrant, arrest another for committing an offence, he may also arrest without warrant any person who offers to sell, pawn or deliver to him any property which, on reasonable grounds, he believes to have been acquired by such person by means of any such offence.

[Ch0802s36]36.     Procedure after arrest without warrant

            (1) No person arrested without warrant shall be detained in custody for a longer period than in all the circumstances of the case is reasonable; and such period shall not (subject to the provisions of subsection (2)) unless a warrant has been obtained for the further detention upon a charge of an offence, exceed 48 hours, exclusive of the time necessary for the journey from the place of arrest to the magistrate's court having jurisdiction in the matter.

            (2) Unless such person is released by reason that no charge is to be brought against him, he shall, as soon as possible, be brought before a magistrate's court having jurisdiction upon a charge of an offence.

            (3) Nothing in this section shall be construed as modifying the provisions of Part IX or of any other law whereby a person under detention may be released on bail.

            (4) Whenever a person effects an arrest without warrant, he shall forthwith inform the arrested person of the cause of the arrest.

B. WITH WARRANT (ss 37-43)

[Ch0802s37]37.     Warrant of apprehension by judicial officer or justice

            (1) Any judicial officer or justice may issue a warrant for the arrest of any person or for the further detention of a person arrested without a warrant on a written application subscribed by the Director of Public Prosecutions or by the local public prosecutor or any commissioned officer of police setting forth the offence alleged to have been committed and that, from information taken upon oath, there are reasonable grounds of suspicion against the person, or upon the information to the like effect of any person made on oath before the judicial officer issuing the warrant:

            Provided that it shall not be lawful for any judicial officer or justice to issue any such warrant except when the offence charged has been committed within his area of jurisdiction, or except when the person against whom the warrant is issued was, at the time when it was issued, known, or suspected on reasonable grounds, to be within the area of jurisdiction of the judicial officer or justice.

            (2) Every such warrant may be issued on a Sunday as on any other day and shall remain in force until it is cancelled by the person who issued it, or until it is executed.

            (3) When a warrant has been issued for the arrest of a person who is being detained by virtue of an arrest without a warrant, such warrant of arrest shall have the effect of a warrant for his further detention.

[Ch0802s38]38.     Endorsement of warrants

            Every judicial officer and every justice, on production to him of a warrant or summons or other process relating to any criminal matter issued by any other judicial officer or justice shall grant his concurrence to it by an endorsement thereof. Thereafter the warrant, summons or other process may be executed within the area of jurisdiction of the judicial officer or justice so endorsing it:

            Provided that, whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the judicial officer or justice within the area of whose jurisdiction the warrant, summons or other process is to be executed, will prevent its execution, the officer of the law to whom it is directed may execute it, without such endorsement, in any place beyond such area of jurisdiction.

[Ch0802s39]39.     Execution of warrants

            (1) Every peace officer is hereby authorized and required to obey and execute any warrant issued by a judge of the High Court under this Act.

            (2) Every peace officer is hereby authorized and required to obey and execute any warrant issued or endorsed by a judicial officer or any justice of the district in which such officer has been appointed to act.

            (3) Every warrant issued by any judicial officer or justice shall have effect and, when endorsed as provided in section 38 (if such endorsement is necessary), may lawfully be executed anywhere within Botswana by any peace officer.

            (4) A peace officer or other person arresting any person by virtue of a warrant under this Act shall, upon demand of the person arrested, produce the warrant to him, notify the substance thereof, and permit him to read it.

            (5) A person arrested by virtue of a warrant under this Act shall, as soon as possible, be brought to a police station or charge office, unless any other place is specially mentioned in the warrant as the place to which such person shall be brought, and he shall thereafter be brought as soon as possible before a magistrate's court upon a charge of the offence mentioned in the warrant.

[Ch0802s40]40.     Telegram stating issue of warrant authority for execution of the same

            (1) A telegram from any officer of any court or from any peace officer, stating that a warrant has been issued for the apprehension or arrest of any person accused of any offence, shall be a sufficient authority to any peace officer for the arrest and detention of such person until a sufficient time, not exceeding 14 days, has elapsed to allow the transmission of the warrant or writ to the place where such person has been arrested or detained unless the discharge of such person be previously ordered by a judicial officer:

            Provided that any such judicial officer may, upon cause shown, order the further detention of any such person for a period to be stated in such order, but not exceeding 28 days from the date of arrest of such person.

            (2) Nothing in this section shall be construed as derogating from the provisions of this Act or of any other law whereby a person so arrested may be admitted to bail.

[Ch0802s41]41.     Arresting wrong person

            (1) Any person duly authorized to execute a warrant of arrest, who thereupon arrests a person believing in good faith and on reasonable and probable grounds that he is the person named in the warrant, shall be protected from responsibility to the same extent and subject to the same provisions as if the person arrested had been the person named in the warrant.

            (2) Any person called on to assist the person making such arrest and believing that the person in whose arrest he is called on to assist is the person for whose arrest the warrant was issued, and every gaoler who is required to receive and detain such person, shall be protected to the same extent and subject to the same provisions as if the arrested person had been the person named in the warrant.

[Ch0802s42]42.     Irregular warrant or process

            Any person acting under a warrant or process which is bad in law on account of a defect in substance or in form apparent on the face of it, shall, if he in good faith and without culpable ignorance and negligence believes that the warrant or process is good in law, be protected from responsibility to the same extent and subject to the same provisions as if the warrant or process were good in law, and ignorance of the law shall in such case be an excuse:

            Provided that it shall be a question of law whether the facts of which there is evidence may or may not constitute culpable ignorance or negligence in his so believing the warrant or process to be good in law.

[Ch0802s43]43.     Tenor of warrant

            Every warrant issued under this Act shall be to apprehend the person described therein and to bring him before a judicial officer as soon as possible upon a charge of an offence mentioned in the warrant.

C. GENERAL (ss 44-50)

[Ch0802s44]44.     Assistance by private persons called on by officers of the law

            Every male inhabitant of Botswana between the ages of 16 and 60 is, when called upon by any policeman, authorized and required to assist such policeman in making any arrest which by law such policeman is authorized to make, of any person charged with or suspected of the commission of any offence, or to assist such policeman in retaining the custody of any person so arrested. Any such inhabitant who, without sufficient excuse, refuses or fails when called upon to do so shall be guilty of an offence and liable to a fine not exceeding P40 or, in the discretion of the court, to imprisonment without the option of a fine for a term not exceeding one month.

[Ch0802s45]45.     Breaking open doors after failure in obtaining admission for the purpose of arrest or search

            It shall be lawful for any peace officer or private person who by law is authorized or required to arrest any person known or suspected to have committed any offence, to break open for that purpose the doors and windows of, and to enter and search, any premises in which the person whose arrest is required is known or suspected to be:

            Provided that such officer or private person aforesaid shall not act under this section unless he has previously failed to obtain admission after having audibly demanded the same and notified the purpose for which he seeks to enter such premises.

[Ch0802s46]46.     Arrest: how made, and search thereon of person arrested

            (1) In making an arrest the peace officer or other person authorized to arrest shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action.

            (2) A peace officer or other person arresting any person under the provisions of this Part may search such person and shall place in safe custody all articles (other than necessary wearing apparel) found on him.

            (3) Whenever a woman is searched on her arrest, the search shall only be made by a woman and shall be made with strict regard to decency. If there is no woman available for such search who is a police officer or is a prison officer, the search may be made by any woman specially named for the purpose by a peace officer.

[Ch0802s47]47.     Resisting arrest

            (1) Where a peace officer or other person authorized to arrest a person (such latter person being hereinafter in this section referred to as "the offender") endeavours to make such arrest, and the offender forcibly resists the endeavours to arrest him, or attempts to evade the arrest, such peace officer or other person may use all means necessary to effect the arrest.

            (2) Nothing contained in this section shall be deemed to justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.

[Ch0802s48]48.     Power to retake on escape

            If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him or cause him to be pursued and arrested in any place in Botswana.

[Ch0802s49]49.     Saving of other powers of arrest

            Nothing contained in this Part shall be construed as taking away or diminishing any authority specially conferred by any other law to arrest, detain, or put any restraint on, any person.

[Ch0802s50]50.     Saving of civil rights

            Nothing contained in this Part shall, except as is otherwise expressly provided, be construed as taking away or diminishing any civil right or liability of any person in respect of a wrongful or malicious arrest.