88.—(1) The accused or where there is more than one accused, each of the accused, about to be tried by a subordinate military court may object, for any reasonable cause, to any member of the court including the president thereof except a president who is a Judge of the Supreme Court, whether appointed to serve thereon originally or to fill a vacancy caused by the retirement of a member objected to, so that the court may be constituted of members to whom the accused makes no reasonable objection.
[20/75]
(2) Every objection made by an accused to any member shall be submitted to the other members appointed to form the subordinate military court and if allowed by a majority of the votes of members entitled to vote the objection shall be allowed and the member objected to shall retire and his vacancy may be filled by another member subject to the same right of the accused to object.
(3) If the objection is to the president of a subordinate military court, such objection, if allowed by a majority of the other members appointed to form the court, shall be allowed, and the court shall adjourn for the purpose of the appointment of another president by the convening authority.
(4) If the objection is to a member other than the president of a subordinate military court and is allowed by a majority of the votes of the members entitled to vote, the objection shall be allowed, and the member objected to shall retire, and his vacancy may be filled by another member.
(5) In order to enable an accused to avail himself of his privilege of objecting to any member, the names of the members appointed to form the subordinate military court shall be read over in the hearing of the accused on their first assembling, and before they are sworn, and the accused shall be asked whether he objects to any of such members, and a like question shall be repeated in respect of any member appointed to serve in lieu of a retiring member.
Informal Consolidation | Amended Act 40 of 2019
Challenges by accused
88.—(1) The accused or, where there is more than one accused, each of the accused about to be tried by a subordinate military court may object, for any reasonable cause, to —
(a)
the president of the court, except a president who is a Supreme Court Judge; and
[Act 40 of 2019 wef 02/01/2021]
(b)
in the case of a panel court martial or a field general court martial, any other member of the court,
whether appointed to serve on the court originally or to fill a vacancy, so that the court may be constituted by a president or of members to whom the accused makes no reasonable objection.
(2) In the case of a panel court martial or a field general court martial, every objection made by an accused to any member, including the president, shall be submitted to the other members appointed to form the court and —
(a)
if the majority of the members entitled to vote decide that there is reasonable cause for the objection, the court shall allow the objection and the member objected to shall retire; or
(b)
if the majority of the members entitled to vote decide that there is no reasonable cause for the objection, the court shall dismiss the objection and record the reasons for its decision in the record of proceedings, and shall also furnish such reasons to the convening authority if required to do so.
(3) Any vacancy resulting from the retirement of a member under subsection (2)(a) may be filled by another member who shall be —
(a)
in the case of a panel court martial, a member of the general courts martial panel who is eligible for the appointment, and who is designated by the convening authority to fill the vacancy; or
(b)
in the case of a field general court martial, an officer or a senior military expert who is eligible for the appointment, and who is appointed by the convening officer to fill the vacancy,
subject to the same right of the accused to object.
[28/2009 wef 01/04/2010]
(4) In the case of a judge court martial, if an accused objects to the president, the president shall determine whether there is any reasonable cause for the objection, and —
(a)
if the president decides that there is reasonable cause for the objection —
(i)
the president shall allow the objection and the court shall be dissolved; and
(ii)
the convening authority shall designate another member of the general courts martial panel who is eligible for the appointment to be the president of another judge court martial convened to try the accused, subject to the same right of the accused to object; or
(b)
if the president decides that there is no reasonable cause for the objection, the president shall —
(i)
dismiss the objection and record the reasons for his decision in the record of proceedings; and
(ii)
furnish such reasons to the convening authority if required to do so.
(5) In order to enable an accused to avail himself of his privilege of objecting to the president of a judge court martial or the members of a panel court martial or field general court martial —
(a)
the name of each person constituting the court shall be read over in the hearing of the accused when the court first assembles and, in the case of a field general court martial, before the members of the court take their oaths or affirmations;
(b)
the accused shall be asked whether he objects to that person; and
(c)
a like question shall be repeated in respect of any person who —
(i)
is designated or appointed to fill a vacancy under subsection (3) or section 89(1)(b) or (c), (2) or (3); or
(ii)
is designated to be the president of a judge court martial under subsection (4)(a)(ii) or section 89(1)(a).
(6) Where a judge court martial is dissolved under subsection (4)(a)(i), the accused may be tried again by another judge court martial.
(7) Where the convening authority has authorised the registrar for subordinate military courts or any other person to exercise the powers conferred and perform the duties imposed on the convening authority under subsection (3)(a) or (4)(a)(ii), the registrar or person shall be entitled to exercise those powers and perform those duties.