Habeas corpus as an effective remedy to enforced disappearance with respect to the Mariam & Hemed cases

Abstract

Confinement of persons, by secretly hurrying them to a Gaol, where there sufferings are unknown should be a thing of the past, given the status of Habeas corpus as a non-limitable right under Article 25 of the Constitution of Kenya. It is however worrying that judgments such as Masoud Salim Hemed & another v Director of Public Prosecution & 3 others, Judgment of 8 August 2014, in the High Court of Kenya at Mombasa seem not to reflect the level of constitutionalism expected of this constitutional provision. The aim of this paper is to show that Habeas Corpus can be refashioned to be the appropriate remedy for enforced disappearances. It undertakes to do this by answering three questions; what was the intended purpose of the change in the Constitution, what in the history of common law informs the current interpretation of Habeas corpus and what can we Jearn from the Inter American systems treatment of habeas corpus that can be used to improve our own system. The paper makes use of constitutionalism as its theoretical framework; it deduces this to be the intention behind Article 25 of the Constitution. This theme is also explored within the history as well as the interpretation of habeas corpus by the Inter-American Court. Finally the paper compares Mariam Mohamed and another v commissioner of police and another, Judgment of 21 November 2007, High Court at Nairobi, a pre-2010 case with Hemed within the background of these findings and gives recommendations.