Constitution of Kenya explained
- Written by Steve Nguru
Advisory Committee on the Powers of Mercy
Open. Accountable. Responsible
Has the power to recommend the conferring of mercy by the President on a duly convicted person. The Committee is chaired by the Attorney General.
To examine every appeal for mercy by use of evidence, interviews, investigations, and probation reports, etc., and to advise the President accordingly.
One of the most progressive provisions in the Power of Mercy Act, 2011 is its generous requirements that compel the Cabinet Secretary in charge of the Prisons Service to ensure that the Advisory Committee on the Powers of Mercy develops and maintains the requisite outreach capacity to each and every prison at all times. Part II of the Act, excerpts:
17. (1) ....... the Cabinet Secretary shall,....... appoint pardon officers, ....... seconded to the Committee and stationed at correctional facilities ....... .
This essentially means that the Committee must devolve its operations by establishing a well-resourced and effective presence at all correctional facilities in the country.
(2) The persons appointed under subsection (1) shall ― (a) report directly to the Committee on all matters related to the power of mercy;
This is a good provision for justice and fair hearing as it makes it possible for every appeal to be independently assessed by persons other than prison officials who may be biased against an applicant.
In making an application for pardon, a convict may cite factors such as good behaviour, age, ill-health, or the length of time already served, etc.
The officers posted by the Committee to serve in the prison facilities are required to inform and educate the prison authorities on the rights of prisoners under their care especially their right to be informed about the work of the Committee and what it can do for them:
17. (2) The persons appointed under subsection (1) shall ― (b) advise the internal mechanism in each correctional facility on all matters relation to the power of mercy; .......
In fact, the outreach activities of the Committee extend to just about every public institution that works with the Prison Services:
14. In addition to the functions set out in Article 133 (1) and (4) of the Constitution, the Committee shall — (b) work with State organs responsible for correctional services to educate persons in correctional services on the power of mercy and procedures relating to applications for its exercise;
Further, these pardon officers are not only required to inform and educate the prisoners on their work, it is incumbent upon them to facilitate every application for pardon:
(2) The persons appointed under subsection (1) shall ― (c) be responsible for assisting the applicants in the preparation of petitions and providing general information on the power of mercy to the prisoners.
20. (5) The Cabinet Secretary and Committee shall ensure that the relevant forms and information are supplied to all the correctional facilities.
Even modern technology such as email is recognised and encouraged for use by anyone making an application for pardon:
20. (4) A petition under this section may be lodged by electronic means.
Simply put, the onus is upon the Advisory Committee to facilitate the ability of a convict to lodge his/her petition.
Anyone may lodge such a petition on behalf of another:
19. (1) Any person may, subject to the Constitution and this Act, petition the President, through the Committee, to exercise the power of mercy and grant any relief specified in Article 133(1) of the Constitution.
What is more, such a petition is considered valid even if it is not 'professionally' done - a truly convict-friendly provision:
(3) For the avoidance of doubt, a petition that provides the requisite information shall not be incompetent only for the reason that— (a) it does not accord strictly with the prescribed format; or (b) it has been commenced in person or through a representative other than an advocate.
Furthermore, any petition must be considered in good time:
23. (1) The President shall, within thirty days of receipt of the recommendations by the Committee, consider the recommendations and either approve or reject the petition.
The decision of the President must be communicated promptly reported to the applicant:
(2) Where the President approves or rejects a recommendation of the Committee pursuant to subsection (1), the Committee shall, in writing, notify the petitioner or their representative of the President’s decision within seven days.
All the while, the process of a request for pardon as well as the decision of the President on the request is to remain open and transparent to the general public:
21. (3) The Cabinet Secretary shall, by notice in the Gazette, from time to time, publish the venue and time where a public hearing and interviews by the Committee shall be conducted.
23. (3) The Committee shall cause the approved petitions under subsection (1) to be published, in the Gazette, within twenty-one days of the receipt of the President’s decision.
An applicant makes one single plea for pardon.
23. (4)The decision of the President for each petition made under this section shall be final.
That decision of the President is not always final in the sense of it being the end of the matter. An applicant may lodge a fresh request for pardon as long as they cite new grounds in their petition:
24. (1) ....... a person may, after the rejection of a petition ......., re-petition only once and on new grounds, to the President through the Committee.
Should the vote by Members of the Committee on a petition before them result in a tie, the petitioner has the benefit of doubt:
28. (1) The recommendations of the Committee shall be in accordance with the opinion of a majority of the members reviewing a petition.
(2) If the members are equally divided in opinion, a recommendation for the grant of the relief sought shall be considered as having been affirmed.
In May 2013, the Committee published findings on the composition of the inmates in the King'orani Correctional facility within the County of Mombasa:
32. (1) The Committee shall publish and publicize all important information within its mandate affecting the nation.
The report noted that as many as half the convicts in the facility were under-age and took issue with the Judiciary for failing to confirm the ages of those who are tried before its courts. The report was also critical of the Kenyan society which it accused of being unwilling to receive released convicts, explaining that many of these convicts do not look forward to their freedom.
This is a constitutional committee comprising the AG, one other Cabinet Secretary and several other members none of whom work in the public service. Chapter Nine - The Executive, Part 2 - The President and Deputy President, excerpt from Article 133.:
133. (2) There shall be an Advisory Committee on the Power of Mercy, comprising - (a) the Attorney-General; (b) the Cabinet Secretary responsible for correctional services; and (c) at least five other members as prescribed by an Act of Parliament, none of whom may be a State officer or in public service.
Githu Muigai, Attorney General and Chair of the Advisory Committee on the Powers of Mercy
Current Legislation (Part 2 of the Power of Mercy Act, 2011) has the Attorney-General as the Chair of a committee of eight persons drawn from psychiatry, psychology and counseling, religion, disability, among other backgrounds, serving on a part-time basis for a single term of 5 years.
As is the requirement for all other such Public Offices for purposes of checks and balances, the Committee must hand in a yearly report for consideration by Parliament. Excerpt from the Act:
29. (2) The Committee shall submit the annual report to the President and Parliament within three months after the end of the year to which it relates.
One of the revelations of its 2013 - 2014 report was the sheer large numbers of convicts that applied for pardon from the President between July 2013 and June 2014; a total of 23,808 in all.
These reports will hopefully enable the public to better know and understand the work of this little-known Committee.
Having been sworn in in October 2011, the Members' terms expires in October 2016.
This Committee is charged with reviewing petitions to the President by convicted persons for the pardon for their crime, for reprieve, or for the lessening of their punishment, etc. Excerpts from Chapter 9 - The Executive, Part 2 - The President and Deputy President:
133. (1) On the petition of any person, the President may exercise a power of mercy in accordance with the advice of the Advisory Committee ....... by— (a) granting a free or conditional pardon to a person convicted of an offence; (b) postponing the carrying out of a punishment, either for a specified or indefinite period; (c) substituting a less severe form of punishment; or (d) remitting all or part of a punishment.
The Power of Mercy is one of the most cardinal/solemn responsibilities due to the holder of the office of the President granted by the New Constitution. Indeed, the Power of Mercy cannot be exercised by an outgoing President or one who is acting as President. Excerpts from Article 134:
134. (1) A person who holds the office of President or who is authorised in terms of this Constitution to exercise the powers of the President — (a) during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected President assumes office; or (b) while the President is absent or incapacitated ..... may not exercise the powers of the President.
(2) The powers referred to ....... are (e) the power of mercy ....... .
For reasons of natural justice while deliberating on a petition, the Committee has been granted by the New Constitution, the option of interviewing any victim of the crime that was committed by the petitioner, with a view to assist it to arrive at a correct and fair decision:
133. (4) The Advisory Committee may take into account the views of the victims of the offence in respect of which it is considering making recommendations to the President.
When all is said and done, the reader should bear in mind that a successful appeal for pardon does not imply an acquittal. Article 25 of the Power of Mercy Act, 2011:
25. (1) Where the relief sought and granted in a petition for the exercise of power of mercy is a pardon under Article 133 (1) (a) of the Constitution — (b) the pardon shall not be construed to be an acquittal.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. Power of Mercy Act, 2011. National Council for Law Reporting. The Attorney General.
3. "State urged to build safe houses for convicts". The Star Newspaper. Retrieved May 2013.
4. "1,107 death row convicts plead for Uhuru Kenyatta's pardon". The Daily Nation online. Retrieved October 2014.