The right to a fair trial in Kenya

  

Date Posted: 2/19/2013 8:21:52 AM

Posted By: warira  Membership Level: Gold  Total Points: 1095

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The right to a fair trial is fundamental to the rule of law. It has a firm foundation in international human rights law and in constitutional practice.

The failure to observe the right undermines all other human rights. Based on this right an accused person cannot be subjected to imprisonment merely upon an accusation being raised.
The right to a fair trial is an aspect of natural justice hinged upon the principle of audi alter am partem which provides that one cannot be condemned unheard.

The right to a fair trial is common in criminal matters but it is also important in civil suits as it applies in the determination of rights in such suits.
In civil and criminal matters the right to be heard is seen in terms of procedural fairness (right to be informed, speedy trial) and substantive fairness(presumption of innocence, right to counsel)
The right is very fundamental such that it has been incorporated in many international laws such as:
The Universal declaration of Human Rights provides for this right under Article 10 and article 11; the International convention of Cultural and Political rights under article 9 and 14 protects one’s right to a fair trial; article 7 of the African Charter For Human and People’s rights takes care of this right and article 6 of the European Convention on Human Rights does the same.
The key elements of a right to a fair trial are:
1. Protection from arbitrary arrest
2. Access to court before a judge or judicial officer
3. Legal representation
4. An independent, impartial tribunal established by law(nobody should judge his own case)
5. The right not to self-incriminate.
6. Publicity of trial
7. Presumption of innocence
8. Rule of double jeopardy
9. No punishment without law and no crime without law.
The 2010 Kenyan constitution is more protective of this right compared to the old constitution. Article 50 of

the constitution specifically deals with this right. Article 50(6)(7)(8)(9) are some of the new provisions. The Kenyan parliament has been given the mandate to enact legislation providing for the protection, rights and welfare of victims of offences.

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