A Critical analysis of the independence and impartiality of the courts martial
Bucha, Sandra Nicole Muthoni
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The right to fair trial encompasses a bundle of other rights, most notably the right to an independent and impartial tribunal. The two concepts of independence and impartiality have been taken to be one but, in actuality, there are two distinct concepts. The objective of this study was to decipher the meaning of the requirement of independence and impartiality of a tribunal and analyze the same as is applicable to military courts, before examining the compliance of Kenyan courts martial with the requirement. This study began by conceptualizing the rule of law as the principle underpinning the right to fair trial and consequently, the right to an independent and impartial tribunal. An independent and impartial judiciary and the rule of law are intrinsically linked - the principal role of an independent judiciary is to uphold the rule of law while the key link to fostering and establishing the rule of law is ensuring an independent judiciary. This study further elaborated the terms ‘independence’ and ‘impartiality’ before analyzing the constituent elements of each component of the requirement of independence and impartiality. Thereafter, this study examined the compliance of the courts martial with the requirement of independence and impartiality of a tribunal. It was found that the courts martial lack sufficient guarantees for independence and impartiality and therefore cannot be said to be independent and impartial. This study concluded by recommending that the KDF Act be amended to secure guarantees of independence and impartiality of the courts martial in the law.