Recently, there have been hues and cries of illegal detentions and illegal detention facilities. People are being arbitrarily whisked to secret detention places by persons or authorities. Some of these detention centers are dirty, hidden and sometimes located underground where the detainees are tortured, deprived of medical care, access to their lawyers and family and are not permitted access to any intellectual property.
In a democratic setting, such scenarios need to be effectively checked as a far-off idea. No one should be subjected to inhuman and degrading treatment. Thankfully, there are legal processes that preserve the integrity in the Right to Personal Liberty and the Right to Fair Hearing as enshrined in section 35 and 36 of the 1999 Constitution of the Federal Republic of Nigeria.
Habeas Corpus is one of such processes. A prisoner or an interested party may petition the court on the legality of an imprisonment or detention. If the petition is successful in demonstrating that the reason or mode of incarceration raise doubts, the judge will then issue a writ of Habeas Corpus.
This writ is a vital instrument for safeguarding individual freedom against indiscriminate arrests. The Court has described it as the ‘Fundamental Instrument for protecting individual freedom from indiscriminate lawless actions’ Habeas Corpus which literally means “Produce the Body”, demands a person in detention to be brought before the Court. The writ prevents a person from being incarcerated save for a just cause and where there is sufficient evidence for such detention.
A Habeas Corpus rights may be obtained by writ. A writ for Habeas Corpus demands that a court orders the custodian of the detainee to bring the detainee to court for determination of the legality of such detention. The writ requires that the prisoner be produced at a particular place, date and time.
The intent of this process is not to determine the guilt or innocence of an accused; rather, it is a review of the process that got an accused detained. It is an inquiry into whether due process was followed, whether judicial authorities descended into the arena to incarcerate, whether the judicial process was followed and if evidence that should have ensured an accused was freed, was tampered with.
What does the petitioner require to petition for Habeas Corpus? A petitioner must have proofs that support his claim to warrant further investigation. He must show that there was a violation of Due Process. Due process is the path upon which the Law travels. Due process demands a fair and speedy trial, the presence of a counsel of the accused’s choice, freedom from unlawful search and seizure, trial by a court of competent jurisdiction and an exchange of pleadings.
Generally, the writ is an extra ordinary remedy that is used after other reliefs and appeal options are foreclosed. It is a last ditch strategic tool for the accused. The reliefs sought may then be such that are unavailable on appeal.
For a writ of habeas corpus to succeed, the identity of the prisoner, the identity of the detainee’s custodian, the time and place of the court hearing, the issues to be addressed by the court i.e. the facts and law by which the prisoner’s detention is presumed illegal, have to be stated.
Unlike on appeals where new evidence is inadmissible, a court reviewing a Habeas Corpus plea can consider new evidence. However, issues raised in a Habeas Corpus plea cannot be evaluated again in the same case.
As with every Law, there are exceptions. The draftsman, in his wisdom, recognized that there are situations when revoking Habeas Corpus may be pertinent. Such situations include public safety, the prevention of insurrection, rebellion or an Invasion; even so, such exceptions must show just cause.
In 1999, the Constitutional Rights Project and Civil Liberties Organisation summoned the Nigerian Government to the African Commission on Human and People’s Rights (Nos 143/95 and 150/96). Communication 143/95 alleged that the Government of Nigeria, through the State Security (Detention of Persons) Amended Decree No 14(1994),had suspended Chapter 4 of the 1999 Constitution and that section 219 and 259 could not apply in relation to any question. This decree prohibited any court in Nigeria from issuing a writ of habeas corpus, or any prerogative order for the production of detained persons.
The Complainant argued that the Law violates the African Charter on Human and People’s Rights and that the draconian decree had made it easy for several human rights and pro-democracy activists and opposition politicians to be detained without trial.
Nigerian Government presented no written response but it made an oral argument to the end that no individual was denied the right to habeas corpus and that Decree no 14 which suspended the right applied only to persons detained in respect of state security and was only implemented between 1993 and 1995 when there was political insecurity following the annulment of the June 12 elections.
In its decision, the Commission accepted the argument that the ouster decree creates a situation in which it is reasonable to presume that domestic remedies will not only be prolonged but are certain to yield no results.(ACHPR 129/94:8).The Ouster clauses were held to create a legal situation in which the Judiciary can provide no check on the executive branch of government and for such reasons, the Commission declared the decree as a gross violation of Fundamental Human Rights and recommended that the Nigerian Government bring itself in line with the Charter.
Habeas Corpus has become a viable tool that allows individuals to challenge their detention proactively and collaterally rather than be enslaved by legal bottle necks. It is an option that is recommended for members of the public who may be faced with cases of illegal detention.