The right to obtain a Writ of Habeas Corpus in the event of a
person being taken into custody and detained unlawfully or incommunicado,
is one of the important means available to prevent a person taken into custody
from being caused to disappear. Although only the Court of Appeal had the
jurisdiction to receive and inquire into Habeas Corpus Applications (HCA)
initially, this was later extended to the Provincial High Courts as well.
However, only the High Court of the Eastern Province has availed this authority.
A study of the HCAs filed between 1988 and 1997 in respect of
persons whose whereabouts were not known or were allegedly kept under unlawful
detention, shows that out of the 2925 cases filed during that period, 272 had
not been concluded as at the beginning of the year 2000. Most of those that had
been concluded had taken over five years to be disposed of.
This remedy is, unfortunately, both time consuming and expensive.
Hence the easy accessibility and effectiveness of a Writ of this nature is
To make HCAs more effective and readily accessible, the
jurisdiction of the Magistrate’s Court should be enlarged to enable Magistrates
to receive petitions, visit places of alleged detention, record evidence and
forward observations to the High Court expeditiously for necessary action. Until
such time, the benefits from a HCA to deter disappearances would be very
Posted on 2003-06-15