Article 133 of the Constitution states that any person may petition the President, through the Committee to exercise power of mercy and grant any relief specified in Article 133(1)
Section (19) of the Power of Mercy Act provide for the eligibility to file a petition for the exercise of the power of mercy. Section 19 (2) states that a petition shall not be permitted where:
- The person for whose benefit it is made is on Probation or serving a suspended sentence
- The person has a pending judicial remedy before a court
Where a petition does not pass the eligibility test, the petitioner is notified of the reasons thereof.
The President may exercise power of mercy in accordance with the advice of the Advisory Committee by granting any of the following reliefs:
- Granting a free or conditional pardon to a person convicted of an offence
- Postponing the carrying out of a punishment, either for a specified or indefinite period
- Substituting a less severe form of punishment, or
- Remitting all or part of punishment.
Admissibility is the inherent power within the Committee set by the Act to either admit or defer a petition therefore rendering it inadmissible. In determining the admissibility of the petition as set out by section 21 (2) of the Power of Mercy Act, the Committee may consider:
- Whether, the convicted criminal prisoner has served at least one third of the sentence pronounced by a court (For determinate sentences)
- Where a person who is convicted and sentenced to imprisonment for life or to death and whose sentence has not been affected, has served for at least five years.
Any other relief that the committee may consider necessary.
Once a petition is deemed eligible and admissible, a petition file shall be opened with a unique petition number. The petitioner will be notified of the number so that in the event that he/she wishes to make any enquiry it is the reference quoted. The Committee has powers as per section 21(1) (b) to call for further evidence which will may include:
a. Prison Report
This report assists the Committee to understand post-conviction conduct, character and reputation of the convicted criminal offender. It is a comprehensive report giving a holistic view of the prisoner including, personal information, family history, details of the offence committed, rehabilitation history, prisoners’ medical and physical report and the Officer’s in Charge remarks.
b. Probation Officer’s Report
It is a social enquiry report of the convicted criminal offender. It provides information such as the family background of the offender, social history including religion and education status, offenders’ criminal history, the victim’s views, the attitude of the offender’s family towards possible release, state and community interest and the reintegration plan among other factors.
c. Court Documents
Judiciary provides court records that are vital in the process of consideration for mercy. Such record includes court proceedings and judgment, documents related to appeal and any other record generated from the courts.
d. Medical Report
The Committee is mandated by section 22(1) (g) of the Act to consider personal circumstances of the offender at the time of making petition, including mental and physical health and any other disabilities. This report should be filed by a competent medical practitioner.
e. Security Appraisal Report
Key security agencies vets all petitioners being considered for mercy to protect the interests of the community and the State and submits its reports to the Committee.
f. Petition Summary
After receiving all the documents, a petition summary which includes the Petitioner’s Bio-Data, the type and circumstances of the offence, petition overview with emphasis on post-conviction conduct and views from other relevant agencies, is made for presentation to the Committee
Complete petition files having all the necessary documents up to petition summary is then presented to the Committee for members’ hearings and deliberations. The Committee at this stage makes use of the Hearing Form as the tool to record observations regarding the parameters of assessment for possible recommendation of mercy.
At this stage, the petition may either be recommended for further consideration, therefore listed for interview, or not recommended with reasons or be deferred to a later date. When the Committee recommends the petition for interview, the interview date and venue is set.
All the petitions that are recommended for interview are presented before the Committee at this stage where the Committee members interrogate the petitioner with the objective of not only getting his/ her side of the story but also observing the demeanor of the petitioner. The assessment of whether one is truly remorseful for the crime committed, has fully reformed, genuinely wishes to be pardoned, has atoned for the offence and is less likely to recidivate is more possible at this stage.
If the basis of the petition was ill health for instance, the Committee will interrogate the documents and make an assessment of the petitioner relying on the medical professional in the membership. The observations at this stage will be recorded in the tool referred as interview summary form.
Where the relief sought relates to a conviction for a felony or misdemeanor in which there was a victim and the committee determines that there’s need to contact the victim, reasonable efforts are made to notify the victim. The victim notified shall be entitled to make a representation at the interview stage.
When making a recommendation under Article 133 of the Constitution and Section 21(1) (c) of the Power of Mercy Act, the Committee considers the following:
- the age of the convicted criminal offender at the time of commission of the offence.
- the circumstances surrounding the commission of the offence.
- whether the person for whose benefit the petition is made is a first offender.
- the nature and seriousness of the offence.
- the length of period so far served by the convicted criminal offender in prison after conviction.
- the length of period served by the convicted criminal prisoner in remand.
- the personal circumstances of the offender at the time of making the petition including the mental, physical health and any disabilities.
- the interest of the State and community.
- the post-conviction conduct, character and reputation of the convicted criminal prisoner.
- the official recommendations and reports from the State organ or department responsible for correctional services.
- where the petitioner has opted to pursue other available remedies the outcome of such avenue.
- the representation of the victim where applicable.
- the Committee may also consider reports from fellow inmates or reports from probation services.
Where a petition is deferred or not recommended for one or other reason, the petitioner is duly notified of the decision of the Committee.
- The President shall, within sixty days of receipt of the recommendations by the committee, consider the recommendations and either approve or reject the petition.
- Where the president approves or rejects a recommendation by the Committee, the Committee shall in writing notify the petitioner or their representative of the President’s Decision within Seven Days.
- The Pardon Warrant will be prepared for all the approved petitions and be transmitted to the Commissioner General of Prisons to facilitate release of the petitioner. The approved petitions will be published in the Kenya Gazette within twenty-one days of the receipt of the President’s Decision.
- The decision of the President for each Petition made shall be final.
- A person may after the rejection of a petition, re-petition only once and on new grounds, to the President through the Committee;
- The Committee shall consider a request for re-petition and where it is satisfied that the request raises reasonable facts, inform the petitioner of the outcome and require the petitioner to file the petition in a prescribed manner; and
- The procedure for the petition process shall then apply to a re-petition.