HISTORICAL SOURCE:
This write is of immemorial antiquity, after a checkered struggle involving common-law courts, the courts of chancellery, the Star Chamber, as well as conflicts between Parliament and the Crown, the protection of this writ was firmly written into English Law, by the Habeas corpus Act of 1679. Today in England, its ranks the most important writ in the constitutional Law of England… Charles Alan Wright. The Law of Federal Courts, 53 at 350 (5th Edition 1994) (quoting secretary of state for Home Affairs V. O’Brien (1923) AC 603, 309.
DEFINITION AND TYPES OF HABEAS CORPUS
The definition of this writ, depends on what type of Habeas corpus that applicant may want to use in the surrounding circumstance of the proceedings.
The most frequent use of these writ is Habeas Corpus ad subjiciendum: It is a writ directed to someone detaining another person and commanding that detainee to be brought to court.
There also exist another type known as Habeas Corpus adprosequendun, which translated in Latin means “that you have the body to prosecute”.
It is a writ used in criminal cases to bring before a court a prisoner to be tried on charges other than those for which the prisoner is currently being confined.
There is also another type referred to as Habeas Corpus ad prosequendum which translated from Latin means “You have the body to respond”. Historically it is a writ used in civil cases to remove a person from one Court’s. Custody into that of another Court, in which a person may be sued.
Another type which is commonly used in our Courts is that of Habeas corpus adtestificadum, which deals with the question of elucidating evidence, in same, a prisoner may the involved in any civil or criminal charge to testify.
IT’S APPLICABILITY
A person whose fundamental right is being or likely to be contravened could resort to these prerogative writes to wit: Mandamus, Certiorari, and injunction.
Pro warrant orders. But our emphasis as far as the writ is concerned is on Habeas corpus.
– This writ may be used to test that legality of an arrest or commitment.
– It may be used to obtain judicial review in the following cases;
a) The regularity of an extradition process.
b) The right to or amount of bail accorded to a detainee.
c) The Jurisdiction of the Court which imposed a criminal sentence.
The writ of Habeas corpus protects an individual against arbitrary imprisonment, whether is a Prison, Police, Gendarmerie or Private Custody.
It requires that any person so arrested be brought before a competent court of law for a formal charge to be preferred, when executed, the Respondent is entitled to return to the writ by showing specifically and certainly as it appears to him, the True course of detaining the Applicant.
The Court is compelled to hear the complaint under which the person had been detained and then rules on the validity of the arrest, if the charge is considered valid, the person must submit to trial, otherwise the person shall be released and there shall be no appeal against the order of the Court. See ESHUGBAYI ELEKO Vs. GOVERNMENT OF NIGERIA (1928 AC, 459) But this stance is different with the enactment of the Criminal Procedure Code of Cameroon which gives Appellate possibilities from the High Court, Court of Appeal to the Supreme Court to either the Applicant or Respondent.
As a Principle of Natural justice, the writ of Habeas corpus as per it’s applicability draws inspiration from the maxim “audi alteram patem” which translated implies that the “other side should be heard”.
HABEASCORPUS AS APPLIED BY THE CAMEROON CRIMINAL PROCEDURE CODE (LAW No.2005/007 OF 27TH JULY, 2005).
It falls within the ambit of BOOK IV, referred to as SPECIAL PROCEDURE S.584(1). The President of the High Court of the place of Arrest or detention of a person or any other judge of the said court shall have jurisdiction to hear applications for immediate release based on grounds of illegality of arrest or detention or failure to observe the formalities as provided by law.
(2) He shall also have jurisdiction to deal with applications filed against administrative remand measures.
(3) The application shall be filed either by the person arrested or detained or on his behalf by anyone else. Such application shall be unstamped.
Section 584(1) illustrates the issue of jurisdiction i.e the capacity of who is competent to entertain such action and also jurisdiction in terms of where the arrest or detention of the person was made. It also handles administrative detention.
Furthermore the codes make it affordable for these actions to be instituted without cost that is without the aid of counsel or without affixing any stamp on the application.
584(2) deals with the procedure to institute these actions. It is by a motion, which is supported by affidavit, (this is the practice in the English speaking Regions of the North West and South West Regions of Cameroon. The identity of the applicant initiating the action as well as the identity of the person arrested or detained, stating the place of arrest and detention and a resume of what constitutes the alleged illegality.
Section 584(3) makes it mandatory for the person detained to be produced at the hour and day enshrined in the reproduction warrant. Also the legal department is expected to make written submission in respect to what is deposed to the affidavit. Where the arrest is illegal, the president shall immediately order for his or her release.
The writ also extends to situation where there has been an acquittal, discharged or release by an ordinary court of law or a special tribunal.
With the Harmonization of these Law and the repeal of the Criminal Procedure Ordinance (Cap.43 of the Law of NIGERIA 1958) and the “Ordonnance du 14 Février 1838 portant Code Instruction Criminel, the legislators found need to enshrine these concepts of natural justice as adumbrated in Sections 584-588 of the C.P.C (Quote the relevant Sections as mentioned above).
WHAT DIFFICULTIES ENCOUNTERED FOR IT’S APPLICABILITY
– The judge should play the role of an unbiased umpire, he or she should not descend to the arena of justice. The conscience and the law are twin parameters for the proper dispensation of Justice without fear or favour. The judge should practicalise his independence when executing this prestigious duty when liberty is at stake. As adumbrated by Monstesquieu in the concept of separation of powers, each arm should be allowed to exercise same without imposition and/or interference by other arms like the executive and the legislature.
– The Judge should tow party lines with proper dispensation of justice and above all pecuniary linings should not override liberty which is the raison d’être of this writ.
It’s dissemination for the common man who has been using this concept in creating humour by referring same in my presence is “Corpus Corpus” hence I thought of throwing light for a comprehension of same.
Eyong Victor Mbi
Barrister-at-Law, Kumba
President, the Centre for Law Sensitisation & The Rights of Man
(Celasirima) affiliated to the National Commission of Human Rights & Freedoms
Tel ; 677627434