Background
The Power of Mercy Advisory Committee is a constitutional body established pursuant to Article 133 of the Constitution of Kenya whose core mandate is to assist the President in the exercise of the power of mercy. The Power of Mercy is a prerogative power conferred upon the President by the Constitution and it entails granting reprieve to eligible convicted offenders through:
- Granting a free or conditional pardon to a person convicted of an offence,
- Postponing the carrying out of a punishment, either for a specific or indefinite period,
- Substituting a less severe form of punishment, or
- Remitting all or part of a punishment
Towards this end, Parliament enacted the Power of Mercy Act, 2011 which makes further provisions for the appointment, tenure of office of the members and the powers and functions of the Advisory Committee on the Power of Mercy, and for connected purposes
The Committee ensures that the process of exercising the power of mercy is transparent, free from bias, just and used for public good. The Committee studies the critical issues surrounding a petition, carries independent research, hears both the beneficiary of the petition and where necessary the testimony of others, reviews reports and recommendations from relevant agencies - all of which ensure the Committee formulates and forwards to the President well developed, thoughtful recommendations on all petitions for the exercise of mercy made by convicted criminal offenders or their representatives. The Committee’s role therefore guarantees that the mercy process is predictable and procedural. The establishment of the Committee was part of the criminal justice system reforms.
The membership of the Advisory Committee comprises of:-
1. The Honorable Attorney General, who is the Chairperson.
2. The Cabinet Secretary responsible for Correctional Services.
3. Seven (7) other members who are not State officers or in public service appointed by the President, one of whom is elected vice chairperson by the members.
The principal functions of the Advisory Committee are set out in Article 133(1) and (4) of the Constitution while Section 14 of the Power of Mercy Act, 2011 provides the additional functions, the Committee shall:
1. Advise the President in petitions for the exercise of mercy filed by any person.
2. Take into account, where necessary, the views of the victims of the offence in respect of which it is considering making recommendations to the President.
3. Undertake or commission research and collect data on matters relating to the Power of Mercy.
4. 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.
5. Carry out any necessary investigations required to make a determination on a petition for Power of Mercy.
6. Partner with State and non-state actors to educate the public on the nature and implications of the Power of Mercy.
7. Undertake such other activity as may be necessary for the discharge of its functions and exercise of its powers; and
8. Carry out any other function as may be conferred on it under any other written law.