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According to the 2011 Power of Mercy Act, President William Ruto this week released 37 inmates on pardon after the Advisory Committee's proposal.
With the use of a gazette notification published on July 19, 2023, the convicts were pardoned.
But what precisely is this Mercy Power?
Kenya's constitution states that the president may utilise this authority after taking petitions submitted to the advisory council on the Power of Mercy into account.
The Power of Mercy Act No. 21 of 2011 operationalized the Power of Mercy Advisory Committee (POMAC), a constitutional body established in accordance with Article 133 of the Kenyan Constitution of 2010.
Mandate of POMAC
The committee's main responsibility is to give the President advice on how to use the Power of Mercy.
The Committee makes sure that the exercise of compassion is fair, impartial, and transparent in order to serve the common good.
The Committee examines the important problems raised by a petition, does independent research, hears testimony from the petition's beneficiary and, when appropriate, other witnesses, and examines reports and recommendations from pertinent agencies.
This is done to make sure the Committee drafts and sends the President well-reasoned, deliberate recommendations on all requests for the exercise of mercy submitted by criminal defendants who have been convicted or by agents acting on their behalf.
The Committee's function thus ensures the consistency and formality of the mercy process. The Committee's creation was a component of the criminal justice system reforms.
Functions of the Committee
The Committee will conduct or commission studies and gather data on topics related to the Power of Mercy. It will also collaborate with State agencies in charge of the penitentiary system to inform those working in the system on the Power of Mercy and the processes for submitting requests for its use.
The committee collaborates with State and non-state entities to inform the public about the nature and implications of the Power of Mercy, and it conducts any necessary investigations required to reach a conclusion about a petition for the Power of Mercy.
It may also engage in any further activity that may be required for the execution of its duties and the exercise of its powers, as well as do any additional tasks that may be assigned to it under any other
Eligibility to file a petition
Any individual may petition the President to use his or her discretion and provide any relief mentioned in Article 133(1) of the Constitution, subject to the Constitution and this Act.
Despite the generality, a petition is not allowed if the individual for whose benefit it is made is on probation or serving a suspended sentence, or while a court is considering an application for any judicial remedy.
Contents of a petition
A petition must include information on the petitioner, the criminal offender who was convicted, and the subject of the petition, if it is someone other than the petitioner.
The type and specifics of the offence committed, the relief requested or the nature of the petition, the grounds for the petition, and the offender's age both at the time of the offence and at the time the petition was made must all be included in the petition.
The circumstances surrounding the commission of the crime, whether the person for whose benefit the petition is made is a first offender, the length of time the convicted criminal prisoner has already served, the length of time the convicted criminal prisoner has served while on remand, and the personal circumstances of the offender at the time the petition is being made, including the offender's mental and physical health and any disabilities, are also details.
The petition must also include evidence of the criminal prisoner's post-conviction behaviour, character, and reputation, as well as any other pertinent details that the Cabinet Secretary may specify on the Committee's advice.
Consideration of petitions, notification of victims
The Committee must decide whether a petition for the use of the power of mercy is admissible after receiving it.
The committee has all the authority necessary to decide the petition, including the right to call witnesses, hold hearings, conduct investigations, and request and analyse all relevant reports from relevant government authorities or agencies.
In accordance with the Constitution, the committee is empowered to submit pertinent recommendations to the president.
The committee may take into account whether the criminal prisoner has served at least one-third of the sentence imposed by a court and whether a person who is found guilty and sentenced to life in prison or to death but whose sentence has not taken effect has served for at least five years when determining whether the petition is admissible.
Any other thing the committee deems necessary will also be taken into consideration. The location and timing of a public hearing and any committee interviews will occasionally be announced by the Cabinet Secretary via notice in the Gazette.
The committee will decide whether it is necessary to get in touch with the victim when the relief requested under this part pertains to a conviction for a felony in which there was a victim.
The victim must be informed in a reasonable amount of time so that they can present their case before the Committee.
Criteria to be applied by the Committee
The age of the criminal prisoner at the time of the offence, the circumstances surrounding the offence, and whether the person for whose benefit the petition is submitted are taken into consideration by the Committee when making a recommendation.
The committee will also take into account the nature and seriousness of the offence, the length of time the convicted criminal prisoner has already served, the length of time the convicted criminal prisoner has spent in remand, and the offender's personal circumstances at the time the petition was made, including his or her physical and mental health as well as any disabilities.
The interests of the State and the community, post-conviction behaviour, the reputation and character of the criminal prisoner, as well as official recommendations and reports from the State organ or agency in charge of providing correctional services, must all be taken into consideration.
The petitioner's decision to pursue additional available remedies, along with the victim's possible representation, will be taken into account.
The committee may take reports from other prisoners and reports from probation services into consideration, as necessary.
Notification of grant or denial of petition
Within 30 days of receiving the Committee's recommendations, the President must take them into consideration and either approve or reject the petition.
The Committee must inform the petitioner or their representative in writing within seven days of the President's decision whether to accept or reject a suggestion.
Within 21 days of receiving the president's judgement, the Committee will have the petitions published in the Gazette.
For each petition submitted, the President's decision is final.
Re-petition
A person may only re-petition the President through the committee once after a petition has been rejected, and only on new grounds.
When a petitioner requests a re-petition, the Committee shall take that request into consideration, determine if the request raises reasonable facts, notify the petitioner of the decision, and then require the petitioner to file the petition in the manner specified.
Pardon not acquittal
When a pardon is requested and granted in a petition for the use of the power of compassion, this pardon serves as convincing evidence that the committee and the President are convinced the petitioner is deserving of the relief.
No acquittal should be inferred from the pardon.
Any person in possession of a court record of a conviction for which a pardon has been granted may be ordered by the chairperson to turn such record on to the Committee.
