CHAPTER ONE

GENERAL INTRODUCTION

Background to the study

The right and respect of habeas corpus cannot be ignored in any society.  This is because it is the right that protects a prisoner. It allows a prisoner to indicate that his or her constitutionally guaranteed right to fair treatment in a trial have been infringed upon. 

The origin of the right to habeas corpus is traceable into law in the 17^th Century in England, when the Catholics were considered disloyal to the throne of King Charles II. During this era, it was a common phenomenon for Catholics to be imprisoned as a result of their religious allegiance, which in most cases were against the policies of the king.

As such, habeas corpus is a way of a prisoner to question the legality of his or her imprisonment.

It is an important aspect of law, which has been incorporated in the legislations of many countries. The right to habeas corpus is thus a fundamental human right, which is essentially required for human development. The right to habeas corpus is justified through a writ to habeas corpus.

This is an order by the judge, which a prisoner should be brought to court. The writ to habeas corpus has grown in popularity and today, it has been adopted in many forms especially in common law jurisdictions

Several legislations have been enacted to ensure the respect of the right to habeas corpus the world over. These legislations have global, regional and national jurisdictions. At the global level, the main legislation is the Universal Declaration of Human Rights of 1948.

At the regional level, we have the European Convention for the Protection of Human Rights and Fundamental Freedom (1950), the American Declaration of the Rights and Duties of Man (1948) and Convention on Human Rights (1969), and he African Charter on Human and Peoples Rights (1981), and at the national levels, we have the various constitutions and other national legislations of states.

Cameroon in particular, has been one of those countries which have introduced statutory provisions relating to habeas corpus.

Constitutionally, the Preamble of the Cameroon 1996 Amended Constitution notes that “…no person may be judged and punished, except by virtue of a law enacted…the law shall ensure the right to every person to a fair hearing before the courts; every accused is presumed innocent until proven guilty during a hearing conducted in strict compliance with the rights of defense..”. apart from this constitutional provision endorsing a citizen’s right to habeas corpus, it should be noted that in 2006, there were major modifications of Cameroon’s Penal Code, following the promulgation of a uniform Criminal Procedure Code (CPC), applicable in both the Anglophone regions, where the common law is applied, and the Francophone regions, where the French civil law is applicable.

One of the major innovations of the CPC is the reform of the law on habeas corpus which was partially reliant on inherited English rules of procedure.

Statement of the problem

The ultimate purpose of a writ of habeas corpus is to provide a remedy in cases of illegal restraint or confinement by testing the legality of a person’s detainment. Habeas corpus per se is an ancient and fundamental principle of English constitutional law.

It originated through the common law and has been confirmed and regulated by a number of statutes that date back to the Magna Carta[6].  It has been replicated by many countries including Cameroon till date. Beside these, it has been backed up by international, regional and national legal instruments.

Internationally, it is supported by the Universal Declaration of Human Rights of 1948; regionally, by the African charter on Human and Peoples rights, and in Cameroon, it is supported by the constitution, the CPC, Penal Code among other supportive legislations.

In spite the existence of these international, regional and national legislations guaranteeing the respect of the rights to habeas corpus, illegal detention is still prevalence in Cameroon. Multiplicities of cases have been documented in Cameroon by human rights association such as Human Rights Watch, Amnesty International, and states such as the United States, Britain, France amongst others to justify the denial of citizens’ rights to habeas corpus by the government.

What account for this state of affairs?.. In other words, what account for the continuous denial of some detainees rights to habeas corpus or illegal detention in Cameroon despite the existing international and national legislations in place?. Hence, this study seeks to examine the extent to which the respect of the right to habeas corpus is uphold in Cameroon during criminal proceedings within the framework of existing legislations.

Research questions

The main research question

The main research question of this study is as follows:

What are the legal mechanisms regulating the respect of habeas corpus, sanctions for their non-respect as well as the main challenges hindering its non-respect during proceedings in Cameroon

Specific research questions

This study is based on the following specific research questions:

• What are the legal mechanisms regulating the respect of the right to habeas corpus during criminal proceedings in Cameroon?
• What are the sanctions for the non-respect of habeas corpus during criminal proceedings in Cameroon?
• What are the constraining factors for the respect of the right to habeas corpus during criminal proceedings in Cameroon?

Objectives of the study

The main objective

To examine the legal mechanisms regulating the respect of habeas corpus, sanctions for their non-respect as well as the main challenges hindering its non-respect during proceedings in Cameroon.

Specific objectives

This study has the following specific objectives:

• To explore the main legal frameworks regulating the respect of the right to habeas corpus during criminal proceedings in Cameroon.
• To bring out the sanctions for the none respect of habeas corpus during criminal proceedings in Cameroon
• To determine the constraining factors hindering the respect of the right to habeas corpus in Cameroon during criminal proceedings

Hypothesis of the study

The main hypothesis

The main hypothesis of this study is based on the fact that, although both international and national legislations regulate the respects of habeas corpus in Cameroon during criminal procedures, certain sanctions prevail for their non-respect due to a number of constraining factors.

Specific hypotheses

This study is based on the following specific of secondary hypotheses:

1. The main legal mechanism regulating the respect of the right to habeas corpus during criminal proceedings in Cameroon is the Universal declaration of human rights, the African Charter on human and people’s rights, the New Criminal Procedure Code and the Cameroon Constitution.
2. The main sanctions for the non-respect of the right to habeas corpus during criminal proceedings in Cameroon ranged from criminal, civil to administrative sanctions.
3. The main constraining factors hindering the respect of the right to habeas corpus during criminal proceedings in Cameroon include executive disregard of court orders, inadequate judicial personnel, corruption and to the absence of real judiciary powers.

SIMILAR LAW PROJECT TOPICS WITH MATERIALS

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