Key Legal Considerations in the Exercise of the Presidential Power of Mercy in Kenya

The presidential powers to grant pardon to convicted offenders in Kenya has long been existent and derives from the History of England through the Monarchy that Kenya borrows from heavily.  In Kenya, all the serving presidents have exercised those powers at one time or another.  In 1975, President Jomo Kenyatta, through a constitutional amendment, also extended the exercise of these powers to electoral laws offenders for supposed political reasons.  In 1983,President Moi granted pardon to persons detained without trial that had been accused of plotting to overthrow the government during the 1982 attempted coup.  Under the Old Constitution, these powers were granted by Section27.In 2012, President Kibaki granted pardon for the first time under the newly enacted Power of Mercy Act (2011).  Most recently in October 2016,President Uhuru Kenyatta exercised these executive powers.  However, it is clear that most people are not aware of the legal procedures followed during the process.  This Article thus seeks to examine the provisions of the law on the subject.

WHAT ARE THE GUIDING PRINCIPLES?

Under the new Constitution, the President’s power to pardon persons serving sentences derives from Article 133.  It gives the president the power to grant a free or conditional pardon to a person convicted of an offence, postpone the carrying out of a punishment, either for a specified or indefinite period, substitute a less severe form of punishment or remit all or part of a punishment.

How does the President decide whom to pardon? The president does not act alone, but on the advice of the Advisory Committee on the Power of Mercy. The Committee comprises the Attorney General, the Cabinet Secretary responsible for correctional services and at least five other members as prescribed by an Act of Parliament, who should not be State Officers or persons in the Public Service.

The Constitution further requires that Parliament passes legislation to provide for the tenure of the members of the Advisory committee, the committee’s procedure and the criteria to be applied by the committee in formulating its advice.

In this regard Parliament enacted the Power of Mercy Act (2011).

The Act in Part II details at length the Composition and Function of the Advisory Committee.The Committee is to be Constituted by 7 other members besides those prescribed by the Constitution(the Attorney General and the Cabinet Secretary responsible for correctional facilities) .They are to be appointed by the president through recommendation by a panel that consists of Representatives of various interested institutions including the commission on human rights,joint forums of religious organizations, department concerned with gender inter alia.The Committee itself is to be constituted of persons with at least 10 years knowledge and experience in fields such as law, correctional services,psychology and counselling, psychiatry,human rights among others.The members are appointed for a non-renewable five year term. The committee must be constituted in line with constitutional principles on ethnic and regional diversity, two third gender rule, national values under Article 10 and Article 232as well as the Leadership and Integrity requirements under Chapter Six.

Of concern to most people in the public domain is how the process is undertaken.  What determines one’s eligibility to petition?  What does the committee consider in making its’ recommendations to the president?

In this respect, Part IIIof the Actprescribes the eligibility and process of petitioning the President for any of the remedies under Article 133.Persons who are on probation,serving suspended sentences or with pendingapplications for a judicial remedyare precluded from petitioning. The format of the petition is set out in the Act under its’ third schedule. Nonetheless, a petition that provides the requisite information shall not be regarded as incompetent for the reason that it does not strictly adhere to the format or that it has been commenced in person or through a representative other than an advocate. It is the duty of the Cabinet Secretary and the Committee to ensure that the relevant forms and information are supplied to all the correctional facilities.

Further, the Act provides for what the committee may consider in determining admissibility of a petition including whether the convicted criminal prisoner has served at least a third of the sentence,in case of a life or death sentence that they have served at least 5years. However,in making recommendations to the president there is a legion of considerations including the age of the offender,the circumstances of commission of the offence, post-conviction conduct of the individual,seriousness of the offense,interest of the State and Community as well as among others the representation of the victims where applicable. In performing its’ obligations the committee has the power to conduct investigations,conduct interviews,receive reports from relevant government agencies and call for evidence.The Cabinet Secretary is obliged under the Act to issue notice through the Gazette of the public hearings including the venue and time.The committee shall also make reasonable efforts to trace the victims in cases where the crime in question is a felony and the committee has determined it important to consider the victims representation.Following consideration of the petition upon receiving recommendations from the Committee, the President either approves or rejects it.  TheCommittee then informs the petitioner or their representative of the President’s decision in writing within 7 days.  The Committee shall then ensure that the approved petitions are published in the Gazette, within 21 days of the President’s decision. The decision of the President is final. Any person whose petition is rejected may only re-petition once and on new grounds.

The vetting process is definitely the most important part of the process. The committee ought to be careful to ensure only those who are deserving benefit from the presidential pardon. Only those who have reformed and do not pose any risk to the victims of the crimes and the public as a whole should be released. Following the releases in October 2016, there have been several reports of some of the people released finding their way back to prison shortly thereafter for commission of crimes.  This raises concerns on whether the vetting process was thorough. There is also need to ensure the necessary support to the released persons so that they are able to live outside prison. For instance, some of those released have been in prison for over 30 years, their families might have abandoned them and a lot has changed in the country over that period. Such people no longer have homes to go to and no one is waiting for them on the outside to help in their reintegration into the society. There is thus need to have a program to assist such persons overcome these challenges. The program could for instance provide temporary accommodation for a specified period, may be have a funding program to provide capital to those who would like to start businesses to put the practical skills acquired in prisons over the years. Such a program could ease the reintegration process and reduce the chances of these persons finding their way back into the cycle of crime.

Thus, the process of presidential pardon requires much rigour before a decision is taken.  The bulk of the work rests with the Advisory Committee who make the recommendations.  It is important that the public is more involved and educated on this process so as not to create thewrong impression about the merits of the process.  This may be so especially with the victims who might feel that justice has not be done.  It is also important that the process is thorough to ensure a balance between the need to ensure the interests of the society, the need to acknowledge the correctional facilities reform processes, and the need to give those who have reformed a second chance in life.

  • Wycliffe

    Informative read.