CHAPTER 7
ARREST

Manner and effect of arrest

41. (1) An arrest is effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching that person’s body or, if the circumstances so require, by forcibly confining that person’s body.

(2) The person effecting an arrest must, at the time of effecting the arrest or immediately thereafter, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, on demand of the person arrested, hand that person a copy of the warrant.

(3) The effect of an arrest is that the person arrested is in lawful custody and that that person is detained in custody until he or she is lawfully discharged or released from custody.

(4) To the extent that this Chapter authorizes the deprivation of the personal liberty of a person by making an arrest thereunder, such deprivation is authorized only on the grounds of the procedures established under this Chapter pursuant to Article 7 of the Namibian Constitution.

CHAPTER 7
ARREST

Procedure after arrest

52. (1) In this section -

“court day” means a day on which the court in question normally sits as a court, and “ordinary court day” has a similar meaning ;
“ordinary court hours” means the hours from 09:00 until 16:00 on a court day.

(2) (a) A person who is arrested with or without warrant for allegedly committing an offence, or for any other reason under this Act, must as soon as practicable be brought to a police station or, in the case of an arrest by warrant, to any other place that is expressly mentioned in the warrant.

(b) A person who is detained in custody as contemplated in paragraph (a) must, as soon as reasonably practicable, be informed of his or her right to institute bail proceedings.

(c) Subject to paragraph (d), if an arrested person referred to in paragraph (a) is
not released by reason that -
(i) no charge is to be brought against the arrested person ; or
(ii) bail is not granted to the arrested person under section 62,
the arrested person must be brought before a magistrate’s court as soon as reasonably practicable, but not later than 48 hours after the arrest.

(d) If the period of 48 hours expires -

(i) outside ordinary court hours or on a day that is not an ordinary court day, the arrested person must be brought before a magistrate’s court not later than the end of the first court day following the expiration of the period of 48 hours ;
(ii) at a time when the arrested person is outside the area of jurisdiction of the magistrate’s court to which he or she is being brought for the purposes of further detention and he or she is at such time in transit from a police station or other place of detention to that court, the period of 48 hours is deemed to expire at the end of the court day next succeeding the day on which the arrested person is brought within the area of jurisdiction of that court ;
(iii) or will expire at, or if the time at which that period expires or is deemed to expire under subparagraph (i) or (ii) is or will be, a time when the arrested person cannot, because of his or her physical illness or other physical condition, be brought before a magistrate’s court, the court before which the arrested person would, but for the illness or other condition, have been brought, may on application by the prosecutor, which, if not made before the expiration of the period of 48 hours, may be made at any time before, or on, the next succeeding court day, and in which the circumstances relating to the illness or other condition are set out, supported by a certificate of a registered medical practitioner, authorize in the absence of the arrested person that the arrested person be detained at a place specified by the court and for such period as the court may consider necessary so that he or she may recuperate and be brought before the court, and that court may, on like application, authorize that the arrested person be further detained at a place specified by the court and for such period as the court may consider necessary.

(3) The parent or guardian of an arrested person under the age of 18 years must, if it is known that the parent or guardian can be readily reached or can be traced without undue delay, be notified immediately of the arrest of that person by the member of the police charged with the investigation of the case.

(4) The probation officer in whose area of jurisdiction the arrest of a person under the age of 18 years has taken place, must as soon as practicable thereafter be notified thereof by the member of the police charged with the investigation of the case, unless there is no probation officer in the area in question or that probation officer is not readily available.

(5) (a) At his or her first appearance in court a person contemplated in subsection (2)(a) who -

(i) was arrested for allegedly committing an offence must -

(aa) be informed by the court of the reason for his or her further detention ; or
(bb) be charged and, subject to paragraph (b) and section 63, be entitled to apply to be released on bail,
and if the person so arrested is not so charged or informed of the reason for his or her further detention, that person must be released from detention ; or

(ii) was arrested for any other reason under this Act than for an offence, is entitled to adjudication on the cause of his or her arrest.

(b) The magistrate’s court before which a person is brought in terms of this subsection, may postpone any bail proceedings or bail application to any date or court for a period not exceeding seven days at a time, on the terms which the court may consider proper and which are not inconsistent with this Act, if -
(i) the court is of the opinion that it does not have sufficient information or evidence at its disposal to reach a decision on the bail application ;
(aa) procure material evidence that may be lost if bail is granted ; or
(bb) perform the functions referred to in section 38 ; or

(iii) it appears to the court that it is necessary in the interests of justice to do so.

(6) Subject to subsection (5), nothing in this section contained is to be construed as modifying the provisions of this Act or any other law whereby a person under detention may be released on bail or on warning or on a written notice to appear in court.

CHAPTER 13
ASSISTANCE TO ACCUSED

Accused entitled to assistance after arrest and at criminal proceedings

80. (1) An accused who is arrested, whether with or without warrant, is, subject to any law relating to the management of prisons, entitled to the assistance of his or her own legal practitioner as from the time of his or her arrest.

(2) An accused is, as contemplated in section 17, entitled to be defended by a legal practitioner of his or her choice at criminal proceedings.

(3) An accused who is under the age of 18 years may be assisted by his or her parent or guardian at criminal proceedings, and any accused who, in the opinion of the court, requires the assistance of another person at criminal proceedings, may, with the permission of the court, be so assisted at such proceedings.

Article 58
Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear
5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the
arrest and surrender of the person under Part 9.

Article 59
Arrest proceedings in the custodial State
1. A State Party which has received a request for provisional arrest or for arrest and surrender
shall immediately take steps to arrest the person in question in accordance with its laws and the
provisions of Part 9.
2. A person arrested shall be brought promptly before the competent judicial authority in the
custodial State which shall determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person’s rights have been respected.
3. The person arrested shall have the right to apply to the competent authority in the custodial
State for interim release pending surrender.
4. In reaching a decision on any such application, the competent authority in the custodial
State shall consider whether, given the gravity of the alleged crimes, there are urgent and
exceptional circumstances to justify interim release and whether necessary safeguards exist to
ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be
open to the competent authority of the custodial State to consider whether the warrant of arrest
was properly issued in accordance with article 58, paragraph 1 (a) and (b).
5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make
recommendations to the competent authority in the custodial State. The competent authority in
the custodial State shall give full consideration to such recommendations, including any
recommendations on measures to prevent the escape of the person, before rendering its decision.
6. If the person is granted interim release, the Pre-Trial Chamber may request periodic
reports on the status of the interim release.
7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the
Court as soon as possible.

Article 92
Provisional arrest
1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.
2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:
(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;
(b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;
(c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and
(d) A statement that a request for surrender of the person sought will follow.
3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.
4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.