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Party Representation | Panel of Arbitrators | Public Access | Fair Hearing | Types of Disputes

Fair Hearing

Article 50(1) of the Constitution of Kenya, 2010 provides that every person has the right to have any dispute that can be resolved by the application of law decided in a FAIR and public hearing before a court or, if appropriate, another independent and impartial tribunal. The requirements for a fair hearing are captured in Article 50 of the Constitution, and include:

1. Being informed of the case against one in sufficient detail to answer it;

2. Being accorded adequate time and facilities to prepare a defence;

3. A public hearing before an independent and impartial tribunal or body established under the Constitution of Kenya, 2010;

4. Commencement and conclusion of the hearing without adequate delay;

5. Being accorded the opportunity to be present at hearing, unless one's conduct makes it impossible for such hearing to proceed;

6. Choosing and being represented by a representative, including being informed of the right to the same;

7. Remaining silent, and not testifying during proceedings;

8. Being informed in advance of the evidence a claimant intends to rely on, and having reasonable access to that evidence;

9. Adducing and challenging evidence;

10. Refusing to give self-incriminating evidence;

11. Not to be proceeded against in respect of conduct for which the respondent has previously been proceeded against and a conclusive decision arrived at in an independent and impartial tribunal;

12. Provision of information in a language understood by the recipient of the information;

13. Exclusion of evidence obtained in a manner that violates any of the rights or fundamental freedoms in the Bill of Rights where admission of that evidence would render the dispute resolution proceedings unfair, or would otherwise be detrimental to the administration of justice;

14. In the interests of justice, a tribunal allowing an intermediary to assist a party to the dispute resolution proceedings to communicate with the tribunal.

Restating, from a different perspective – a fair hearing before an independent and impartial tribunal or body is a fundamental component of the right to due process and justice. It ensures that individuals involved in legal proceedings receive a just and unbiased treatment. Key elements that typically characterize a fair hearing include:

1. Independence and Impartiality:

• Judicial Independence: The tribunal or body must be independent from external influences, ensuring that it can make decisions based solely on the law and facts without interference.

• Impartial Decision-Makers: The decision-makers must be impartial and free from bias, with no personal interest in the outcome of the case.

2. Notice and Adequate Time:

• Notification of Proceedings: Parties should be informed in advance of the proceedings, including details such as the time, venue, and nature of the hearing.

• Adequate Preparation Time: Parties should have sufficient time to prepare their case and gather evidence.

3. Right to Legal Representation:

• Access to Legal Representation: Parties have the right to be represented by legal counsel, ensuring that they can present their case effectively.

• Informed Choice: Parties should be informed of their right to legal representation and have the freedom to choose their legal representatives.

4. Right to Present Evidence:

• Opportunity to Present Evidence: Parties must be given a reasonable opportunity to present their evidence and arguments.

• Examination and Cross-Examination: The right to examine and cross-examine witnesses is essential to challenge evidence and ensure its reliability.

5. Right to a Public Hearing:

• Openness and Transparency: In certain cases, there is a right to a public hearing, allowing the public and the media to observe the proceedings.

• Exceptions for Privacy or Security: Public hearings may be restricted in cases involving sensitive information, privacy concerns, or national security.

6. Reasoned Decisions:

• Clear and Justifiable Decisions: The tribunal must provide clear, reasoned decisions that explain the legal and factual basis for its conclusions.

• Fair Consideration of Arguments: All relevant arguments presented by the parties should be considered in reaching a decision.

7. Equality of Arms:

• Balanced Opportunity: The parties should have an equal opportunity to present their case, ensuring a fair and balanced hearing.

• Access to Information: Both parties should have access to the same information and evidence.

8. No Arbitrary Deprivation:

• Protection Against Arbitrary Deprivation: No one should be arbitrarily deprived of their rights, and decisions should be based on established legal principles.

• Due Process: Procedural fairness and due process should be observed throughout the hearing.

9. Access to a Review Mechanism:

• Right to Appeal or Review: Parties should have the right to challenge the tribunal's decision through an appeal or review mechanism.

• Independent Review: The review process should be conducted by an independent body or authority.

10. Language and Communication:

• Understanding of Proceedings: Parties must have a reasonable understanding of the proceedings, and language barriers should be addressed.

• Interpretation Services: When necessary, interpretation services should be provided to ensure effective communication.

A fair hearing is a cornerstone of the rule of law and protects the rights and interests of individuals involved in legal processes. These principles are recognized and emphasized in various international human rights instruments and legal systems globally.