Constitution of Kenya explained
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Other Offices Under the New Constitution
Firm. Fair. Free
The Office of the Attorney-General is an office established by the Constitution of Kenya, 2010, to advise the National and County Governments, State Organs and Offices. The Attorney-General is a member of the Cabinet.
The Director of Public Prosecution's office is an independent office responsible for all prosecutions. The DPP serves for a term of eight years.
It will receive and examine every appeal for mercy from convicted offenders.
The DPP was an office under the Attorney-General's office under the Old Constitution. The little-known Advisory Committee on the Power of Mercy too before the New Constitution.
1. Constitution of Kenya 2010. National Council for Law Reporting. The Attorney-General.
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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.
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Director of Public Prosecutions under the New Constitution
Open. Accountable. Responsible
The Director of Public Prosecution has authority over all criminal investigations and prosecutions. The DPP can direct the Inspector-General of Police to investigate any crime. This authority can be delegated to others.
The DPP serves for a maximum of eight years
The office of Public Prosecutions was previously under that of the Attorney-General, under the old constitution. Under the Constitution of Kenya 2010, the Director of Public Prosecution is an autonomous office under the Public Service. This arrangement appears to have weakened the clout of the DPP, leading to inadequate funding to the Office and thereby perpetuating the delay of justice because of insufficient numbers of prosecutors.
The office of the Director of Public Prosecutions DPP, is now an independent constitutional office concerned mainly with criminal investigations and prosecutions. Chapter Nine - The Executive, Part 4 of the New Constitution:
157. (1) There is established the office of Director of Public Prosecutions.
(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.
The DPP is expected to be and indeed is independent of any person(s) or authority in the exercise of the powers of that office:
(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.
The powers of the office of the DPP may be exercised by delegation to other(s) under specific instructions from the DPP;
(9) The powers of the Director of Public Prosecutions may be exercised in person or by subordinate officers acting in accordance with general or special instructions.
Or by other Constitutional Offices such as Independent Commissions by way of legislation:
(12) Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions.
The DPP has wide ranging Constitutional powers in criminal prosecutions and specifically in relation to commencement and terminations of proceedings.
(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may— (a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed; (b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and (c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).
The powers so accorded the DPP under Clause (6) above, will be presumed to have been exercised in the interest of justice for the accused and ultimately, in the interest of public good;
(7) If the discontinuance of any proceedings under clause (6) (c) takes place after the close of the prosecution’s case, the defendant shall be acquitted.
(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice .......
All in all, the affected Court is duty bound to ensure that justice is served in any such action by the DPP; it retains the ultimate say on the matter of whether the DPP can terminate an on-going prosecution, lest the DPP be acting mischievously:
(11) In exercising the powers conferred by this Article, ........ to prevent and avoid abuse of the legal process.
(8) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.
Keriako Tobiko, Director of Public Prosecutions
The DPP serves for a maximum period of 8 years:
157. (5) The Director of Public Prosecutions shall hold office for a term of eight years and shall not be eligible for re-appointment.
The DPP is hired (and can only be fired) by the Public Service Commission, PSC; and may only be removed from office by the President upon a successful application to the President via the Public Service Commission, PSC as the nominating authority of the holder of the office, and following investigations by a tribunal that confirms the charges against the DPP:
158. (1) The Director of Public Prosecutions may be removed from office only on the grounds of— (a) inability to perform the functions of office arising from mental or physical incapacity; (b) non-compliance with Chapter Six; (c) bankruptcy; (d) incompetence; or (e) gross misconduct or misbehaviour.
(2) A person desiring the removal of the Director of Public Prosecutions may present a petition to the Public Service Commission which, shall be in writing, setting out the alleged facts constituting the grounds for the removal of the Director.
(3) The Public Service Commission shall consider the petition and, if it is satisfied that it discloses the existence of a ground under clause (1), it shall send the petition to the President.
(4) On receipt and examination of the petition, the President shall, within fourteen days, suspend the Director of Public Prosecutions from office pending action by the President in accordance with clause (5) and shall, acting in accordance with the advice of the Public Service Commission, appoint a tribunal consisting of—(a) four members from among persons who hold or have held office as a judge of a superior court, or who are qualified to be appointed as such; (b) one advocate of at least fifteen years’ standing nominated by the statutory body responsible for the professional regulation of advocates; and (c) two other persons with experience in public affairs.
(5) The tribunal shall inquire into the matter expeditiously and report on the facts and make recommendations to the President, who shall act in accordance with the recommendations of the tribunal.
In the absence of the above process happening, the current DPP will serve until 2019. Clearly, the process for the removal of the DPP is designed to prevent the sort of witch-hunting and the accompanying public kangaroo courts and lynch-mobs that accompanied calls for the removal of the then newly-appointed DPP in 2011.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
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The Attorney-General under the New Constitution
Open. Accountable. Responsible
The Attorney-General is a Cabinet-level office.
The AG is the legal adviser of Government.
The Attorney-General's tenure follows the cycle of a General Elections.
Prof. Githu Muigai - The Attorney General of the Republic of Kenya
Under the Old Constitution, the Attorney-General of the Republic of Kenya has been a key member of both the Executive and the Legislature (as an ex-officio member). However, the Constitution of Kenya 2010 makes no mention of the AG's membership by right or otherwise, to either House of Parliament. Under the Old Constitution, the AG was a member of the National Assembly and would be referred to as the Honourable Attorney General. Excerpts from Chapter III, Parliament, Part 1 - Composition of Parliament under the Old Constitution:
36. The Attorney-General shall be an ex officio member of the National Assembly, but he shall not be entitled to vote on any question before the Assembly.
The AG is the only Cabinet office which by law (ie., under the New Constitution) must be occupied by a person with specific technical background. Chapter Nine - The Executive, Part 4 - Other Offices, Article 156, excerpts::
156. (1) There is established the office of Attorney-General.
(3) The qualifications for appointment as Attorney-General are the same as for appointment to the office of Chief Justice.
The Attorney-General (or AG), is a member of the Cabinet - the highest executive authority in the country. Excerpts from Part 3 - The Cabinet:
152. (1) The Cabinet consists of— ....... (c) the Attorney-General; ........
The office of the AG is often referred to as the State Law Office. As a member of the Cabinet, the AG is and acts as the Principal Legal Adviser to executive authority.
(4) The Attorney-General— (a) is the principal legal adviser to the Government; (b) shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; .......
Under the New Constitution, the function of prosecutions is no longer under the AG's office. That role is now assigned to the office of the Director of Public Prosecution. This change should free the AG's office from the controversy that often accompanied Presidential directions to the office of the AG, leading to accusations that it was was lacking independence by taking instructions from an executive that could not be relied on to remain neutral. As a member of the Cabinet, the AG may take lawful instructions in writing from the President.
(4) The Attorney-General— (c) shall perform any other functions conferred on the office by ....... the President.
The fact that the AG's Office was often times regarded by the public as not being independent led to the provision that the holder of the office quit within one year of the promulgation of the New Constitution, in order for the citizens to feel that they have made a clean break with the past constitutional order and embrace a new office holder in whom they can place their confidence. Consider Article 30 in the Sixth Schedule - Transitional and Consequential Provisions, Part 6 - Miscellaneous Matters:
30. (7) ......., the Attorney-General ....... shall continue in office for a period of no more than twelve months after the effective date ........
The AG is given wide-ranging freedom to volunteer as a friend of the court (or an 'amicus curiae') to assist in the service of justice by 'offering information to assist a court in deciding a matter before it'; for example, to assist the courts to interpret the provisions in the Constitution for affirmative action i.e., "......to treat unequals appropriately unequally", (Nyanjom, 2011), or in disputes before the court, or in criminal proceedings, etc; cases in which the AG feels that public or special interests should be given due consideration by the Court:
152. (5) The Attorney-General shall have authority, with the leave of the court, to appear as a friend of the court in any civil proceedings to which the Government is not a party.
The important role of the AG can be replicated through appropriate delegation to others in order to expedite accessibility to justice by those before the courts, or those in need of the intervention of the same Courts, or to assist the Court and justice system in general to work better:
(6) The Attorney-General shall promote, protect and uphold the rule of law and defend the public interest.
(7) The powers of the Attorney-General may be exercised in person or by subordinate officers acting in accordance with general or special instructions.
Subsection (4) (a), sections (6) and (7) of Article 156, make the AG a permanent member of one key Commission and entitled to have a representative in another i.e., the JSC and SRC (ex-officio) respectively, plus direct membership into the National Security Council, and the Advisory Committee on the Power of Mercy:
171. (1) There is established the Judicial Service Commission.
(2) The Commission shall consist of— ......(e) the Attorney-General;
230. (1) There is established the Salaries and Remuneration Commission.
(2) The Salaries and Remuneration Commission consists of the following persons appointed by the President— (d) one person each nominated by—(ii) the Attorney-General; .......
(3) The Commissioners under clause (2) (d) shall have no vote.
240. (1) There is established a National Security Council.
(2) The Council consists of— ....... (f) the Attorney-General;
133. (2) There shall be an Advisory Committee on the Power of Mercy, comprising - (a) the Attorney-General;
As we noted earlier in our introduction, the New Constitution is rather quiet on the matter of the AG's direct membership to Parliament. It does however require the AG to cooperate with various committees and commissions to ensure the passing of necessary legislation on the implementation of the Constitution. Excerpts from the Sixth Schedule:
4. ....... (b) coordinate with the Attorney-General, the Commission on the Implementation of the Constitution and relevant parliamentary committees to ensure the timely introduction and passage of the legislation required by this Constitution; .......
6. ....... (b) co-ordinate with the Attorney-General and the Kenya Law Reform Commission in preparing, for tabling in Parliament, the legislation required to implement this Constitution;
Also from Chapter 18 - Transitional and Consequential Provisions:
261. (4) ...... the Attorney-General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified.
The holder of the office of the AG enjoys security of tenure equivalent to that of a Cabinet Secretary and thus can only be removed by the President for criminal, unconstitutional or gross misconduct as determined by a select committee of 11 members of the National Assembly, which would present its report to the Assembly for a vote (See Article 152 Clauses (6)-(10). As a member of the Cabinet, therefore, the AG's term of service comes to an end only on the appointment of a new Cabinet after a General Election.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.
2. The Constitution of Kenya Revised edition 2008 (2001), National Council for Law Reporting, The Attorney-General.
2. Othieno Nyanjom (2011). "Devolution in Kenya's new Constitution". Constitution Working Paper Series No 4. Society for International Development, SID.