THE WRIT OF HABEAS CORPUS

THE WRIT OF HABEAS CORPUS

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Habeas corpus has been described as the greatest guarantee of human freedom ever devised by man. This is because without habeas corpus, other rights and freedoms guaranteed in the Constitution of Kenya 2010 are useless. One cannot claim them when detained. Kenya has a dark history in unlawful detention and other human rights violations by the police. There have been efforts in the past to change this but it appears that whatever laws enacted to regulate police conduct do little to make actual significant changes.

It has been quite the emotional rollercoaster in the past few weeks. The streets of major towns and cities in Kenya have been filled with protestors exercising their constitutional right to picket. On the other side there have been police doing as much as they can to destabilize the protestors by whatever means they deem necessary. Protestors have been arrested, teargassed and shot at. One can see that the government, through the police, has resorted to high end tactics of violence against protesters.

Of these tactics, one that is addressed in this article is abduction of leading protestors by the police. There have been reports of several people who have been arrested and held incommunicado by the police. In such cases, there have been attempts by their loved ones to locate them but the police have been uncooperative as usual. This article elaborates a remedy that is available to such persons. This is the right to an order of habeas corpus. The article discusses this right, its importance and the procedure to be followed for the court to grant the order.

Habeas corpus is a latin phrase that means ‘produce the body.’ It is a court order that requires an individual that has been arrested to be brought in front of a judge to prove that there is a valid reason for his arrest. The writ protects people from wrongful arrest and detention by police. In the case of Grace Struat Ibringira & others v Uganda [1966] EA 445, the Court of Appeal for Eastern Africa stated that:-

“The writ of Habeas Corpus is a writ of right granted ex debitio justitiae, but it is not a writ of course and it may be refused if the circumstances are such that the writ should not issue. The purpose of the writ is to require the production before the court of a person who claims that he is unlawfully detained so as to test the validity of the detention and so as to ensure his release from unlawful restrained should the court hold that he is unlawfully restrained. ... The writ is directed to one or more persons who are alleged to be responsible for the unlawful detention and it is a means whereby the most humble citizen may test the action of the executive government no matter how high the position of the person who ordered the detention.”

A similar view was taken by the Supreme Court of the Philippines in the case of MA Estrdita D. Mortinex v Director General and Others GR No.153795. The court stated:

“Habeas Corpus applies to all cases of illegal confinement or detention by which any person is deprived of his liberty or by which the rightful custody of any person is withheld from the person entitled thereto ... The ultimate purpose of the writ of Habeas Corpus is to relieve a person from unlawful restraint. It is devised as a speedy relief from unlawful restraint. It is a remedy intended to determine whether the person under detention is held under lawful authority.’’

The Constitution of Kenya 2010, under article 51(2) provides that a person who is detained or held in custody is entitled to petition for an order of habeas corpus. Under article 25(d) of the Constitution, the right to an order of habeas corpus cannot be limited. Under section 389 of the Criminal Procedure Code CAP 75, the High Court may whenever it thinks fit direct—

(a) that any person within the limits of Kenya be brought up before the court to be dealt with according to law;

(b) that any person illegally or improperly detained in public or private custody within those limits be set at liberty;

(c) that any prisoner detained in a prison situated within those limits be brought before the court to be there examined as a witness in any matter pending or to be inquired into in that court;

(d) that any prisoner so detained be brought before a court martial or commissioners acting under the authority of a commission from the President for trial to be examined touching any matter pending before the court martial or commissioners respectively;

(e) that any prisoner within those limits be removed from one custody to another for the purpose of trial; and

(f) that the body of a defendant within those limits be brought in on a return of cepi corpus to a writ of attachment.

Before the promulgation of the Constitution 2010, causes relating to habeas corpus used to be commenced by way of chamber summons accompanied by a supporting affidavit. Rule 2 of the Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules 1948, provides that an application for the issue of directions in the nature of habeas corpus shall be made in the first instance to a judge in chambers ex parte, supported by affidavit in triplicate. This has since changed. It was clearly put in the case of Omar Gordana Dida on behalf of Osman Omar Gordana v Inspector General and 3 Others [2021] eKLR where the court stated that:

``From the above constitutional and legal provisions, causes relating to habeas corpus ought to be commenced by way of petition the effect of which is that the court would hear the evidence of the parties who would also be subjected to cross examination. In our case, this matter was commenced by way of chamber summons. To me, this was foul procedure.’’

In conclusion, habeas corpus is an important part of the bill of rights. It is because of this that it should not be pleaded in vain. Anyone seeking it must satisfy the court through convincing evidence that the missing person on whose behalf the petition was filed is under the custody of the respondents. Unlawful detention is very critical so that when an order is made, it should not be in vain.