Remedies for the Infringement of Human Rights
The general rule is that ‘where there is a right there is a remedy’ ubi jus ibi remedium; which provides the fundamental concept that the complainant who has a grievance cognizable by the law may be assured of a remedy through the courts. Ubi jus ibi remedium has been a fundamental concept of our legal system, and the complainant who has a grievance cognizable by the law may be assured of a remedy through the courts.
The work of the constitutional mandate is that courts must grant ‘appropriate relief’ or ‘appropriate and just’ remedy where there is a breach of fundamental rights entrenched in the constitution. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Remedies
(1) The Writ of Habeas Corpus
Is a writ or legal action, through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to their aid. A writ of habeas corpus is a summons with the force a court order; it is addressed to the custodian and demands that a prisoner be taken before the court and the custodian present proof of authority to detain the person. If the custodian does not have the authority to detain the prisoner then he must be released from custody. This is an important remedy which may be resorted to in the course of the criminal process to obtain judicial review of police action and thus to the subject against unlawful deprivation of his liberty.
Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to fair trial. So for an imposition of such internment without trial is permitted by the law then habeas corpus may not be a useful remedy. Furthermore, in many
The work of the constitutional mandate is that courts must grant ‘appropriate relief’ or ‘appropriate and just’ remedy where there is a breach of fundamental rights entrenched in the constitution. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Remedies
(1) The Writ of Habeas Corpus
Is a writ or legal action, through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to their aid. A writ of habeas corpus is a summons with the force a court order; it is addressed to the custodian and demands that a prisoner be taken before the court and the custodian present proof of authority to detain the person. If the custodian does not have the authority to detain the prisoner then he must be released from custody. This is an important remedy which may be resorted to in the course of the criminal process to obtain judicial review of police action and thus to the subject against unlawful deprivation of his liberty.
Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to fair trial. So for an imposition of such internment without trial is permitted by the law then habeas corpus may not be a useful remedy. Furthermore, in many
Bibliography: 1. DLAMINI L. A Paper on Human Rights, the Constitution of Swaziland and Other Related Laws Application and Administration of Justice.p.102 2. http://www.wikipedia, the free encyclopedia 3. 3.http://en.wikipedia.org/wiki/Judicial_review 4. Joubert J.J (2009), Criminal Procedure Handbook, Juta & Co Ltd, Pretoria p,25 5. Attorney General v Mary Jane Doo Aphane Civil Appeal No. 12/2010 6. Sishayi Simon Nxumalo v. Attorney General 1982-1986 SLR p.286 7. Universal Declaration on human rights, Article 8