Every few years, the President pardons a number of prisoners as part of the constitutionally sanctioned clemency process. The Constitution of Kenya, through the Power of Mercy Act (No. 21 of 2011), empowers the Head of State to grant mercy to individuals who have been convicted of crimes.
The Act thus provides convicts with an opportunity to reform and potentially reintegrate into society, but only if they have shown genuine remorse and are actively pursuing rehabilitation. However, not all convicts qualify for a pardon, as there are specific requirements and procedures that must be adhered to in order to improve their chances of obtaining mercy.
Here are some key aspects of petitioning for the power of mercy in Kenya:
Eligibility
To be eligible to petition, the Power of Mercy Act requires that a convicted person meet the following criteria:
1. Conviction and sentencing
The petitioner must have been convicted and sentenced by a court of law.
Individuals on probation, serving a suspended sentence, or pursuing an ongoing appeal or other judicial remedy are not permitted to petition under the law.
2. Completion of a miminum sentence
Typically, a petitioner must have served at least one-third of their sentence.
For those sentenced to life imprisonment or the death penalty, a minimum of five years must be served before submitting a petition.
3. Nature of the offence
Although the Act does not explicitly exclude any offense from eligibility for a petition, the nature and severity of the crime will be major factors considered during the review process.
4. Rehabilitation
The convict must present proof of rehabilitation, showing they have reformed and are unlikely to commit further offenses.
4. Good Conduct
The convict must have exhibited good behavior during their sentence, as this is a critical factor in the evaluation process.
5. Special Circumstances
In certain cases, special circumstances such as health issues, advanced age, or other humanitarian reasons may be taken into account.
Procedure
If the convicted person meets the above criteria, they should follow these steps to petition for the Power of Mercy:
1. Application By the Convict or Family
The process usually begins with an application submitted by the convict or their family members to the Power of Mercy Advisory Committee (POMAC), the entity responsible for handling such requests.
2. Filling the petition
After application , the convicted person then fills the petition on the prescribed form. The petition must detail the petitioner’s information, the nature of the offense, the requested relief, and the justification for the request. It should be accompanied by supporting documents, such as evidence of good conduct, rehabilitation, and any other pertinent information.
The forms are available at correctional facilities and can be lodged either in person or electronically.
3. Submission of relevant documents
After completing the form and attaching the relevant documents, the convicted person can submit the petition to the appropriate authorities. The petitioner must also include all pertinent documents, such as the court judgment, sentence records, and any other materials that may support the petition.
4. Review by the advisory committee
Upon receiving the petition, the advisory committee reviews it to assess its admissibility. The committee may conduct investigations, interviews, and gather reports from correctional facilities to evaluate the petitioner’s eligibility. The review considers the applicant’s conduct during incarceration, including rehabilitation efforts, educational achievements, and other positive changes, which significantly influence this stage.
5. Notification of victims
If the crime involved a victim, the committee may notify the victim and invite them to provide their input. The victim’s feedback is taken into account before the committee makes a final recommendation.
6. Committee’s recommendation
After a thorough review, the committee makes a recommendation to the President, which may either support or deny the petition.
7. Presidential decision
The President examines the committee’s recommendation and makes the final decision. The outcome, whether to approve or reject the petition, is conveyed to the petitioner and published in the Gazette. The President’s decision is conclusive and cannot be appealed.
8. Notification
If the pardon is granted, the convict is notified, and the relevant authorities are directed to implement their release or adjust the sentence accordingly. If the petition is denied, the convict or their family is informed, and they may be eligible to reapply after a specified period.
The POMAC’s decision to approve a petition is influenced by several factors, including the potential impact of granting mercy on public safety and societal values. Additionally, the committee ensures compliance with the guidelines outlined in the Power of Mercy Act, including proper documentation and adherence to procedural rules.
It is important to note that the process can be lengthy and involves thorough scrutiny to ensure that only deserving cases receive a pardon. Additionally, a presidential pardon does not erase the conviction but may result in an early release or commutation of the sentence. If you are considering filing a petition, seeking legal counsel is advisable to ensure that all procedures and documentation are properly managed.
