Tuesday, May 13, 2014

Can the Kenya Defence Forces' chief legal advisor also serve as director of military prosecution?

Senior private Phinhas Mugo of the Kenya Defence Forces continues to challenge the court-martial proceedings against him on the ground that Brigadier K.O. Odindi, the Director of Military Prosecution, was simultaneously the military's legal advisor. Proceedings in the High Court to block the court-martial are the subject of this report.
“Section 236(6) of the Kenya Defence Forces act is clear that the Director of Military Prosecution shall be a separate office from that of the defense forces or military and therefore there is no way that the court martial can allow a person holding two offices to prosecute in that court,” said Mugo though his lawyer Odera Were. 
“Failure to adhere with the provisions of the law makes my prosecution illegal and the court martial is aiding an illegality by allowing unqualified  to prosecute cases before it having been provided with the documents to support my objections,” he said.
The government responds that any error was harmless and that in any event Brigadier Odindi was qualified to prosecute because he is an advocate admitted to practice in the High Court. 

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