Habeas Corpus and the Power of the High Court under Section 390 of the CPA.

Habeas Corpus and the Power of the High Court under Section 390 of the Criminal Procedure Act (Cap. 20 R.E 2022)

Habeas corpus is a fundamental legal remedy that serves to protect personal liberty against unlawful detention. The term habeas corpus is a Latin phrase meaning “you shall have the body,” and it is a judicial mandate requiring that a person who is detained be brought before a court to determine whether the detention is lawful. This writ ensures that no one is held without just cause and is an essential safeguard in any system that upholds the rule of law and human rights.

Under section 390 of the Criminal Procedure Act, Cap. 20 [R.E 2022], the High Court of Tanzania is vested with broad discretionary powers to issue directions in the nature of habeas corpus. Specifically, the High Court may direct that any person within the limits of Mainland Tanzania be brought before the court to be dealt with according to law, whether such person is in public or private custody. This authority is particularly invoked where it is alleged that a person is being illegally or improperly detained, in which case the court may order that the detainee be released. Additionally, the High Court may issue such directions for other lawful purposes, such as requiring that a prisoner be brought before it to testify as a witness, to appear before a court-martial or presidential commission, or to be transferred from one custody to another for the purpose of trial.

The remedy of habeas corpus is typically sought when there is reason to believe that a person is being unlawfully held without charge, or when detention is carried out in contravention of established legal procedures. A successful application may result in the High Court ordering the immediate release of the person detained or making any other order it deems just and proper to ensure compliance with the law. Section 390 therefore plays a crucial role in upholding the constitutional right to personal liberty and in preventing arbitrary or unlawful restraint by state or private actors.