Understanding the presidential pardon

Ezekiel Kipkosgei Chelimo at the Eldoret GK Prison Uasin Gishu County, where he was alleged to have lost his eyesight. He was sentenced to serve life imprisonment in 2010 for defilement. [File, Standard] President William Ruto has issued presidential pardons to inmates in various correctional facilities at least twice since taking office. The most recent pardon, granted on April 28, 2025, approved petitions from 56 Kenyans and one foreign national, giving them a chance to reintegrate into society. However, the move has stirred controversy. Critics have warned of potential abuse of power, pointing to global examples. Recently, US President Donald Trump pardoned a gang leader, while his predecessor, Joe Biden, pardoned his son, Hunter Biden, just weeks before his sentencing on gun and tax offences. Presidential pardons in Kenya have seen individuals considered to have committed serious crimes get a taste of freedom or lesser punishments, raising concerns that such leniency undermines the integrity of the criminal justice system. What is a presidential pardon?A presidential pardon is the legal authority granted to the Head of State to forgive convicted individuals, either by reducing their sentence or setting it aside altogether. How is a pardon granted? Article 133 of the 2010 Constitution of Kenya grants the president the power to issue free or conditional pardons, delay or commute sentences, or remit all or part of a punishment. However, the president does not act alone. He relies on recommendations from the Power of Mercy Advisory Committee, which reviews and shortlists deserving candidates. "There shall be an Advisory Committee on the Power of Mercy, comprising the Attorney-General, the Cabinet Secretary responsible for correctional services, and at least five other members as prescribed by an Act of Parliament, none of whom may be a State officer or in public service," reads part of Article 133. The petition process All prisoners are eligible to petition for a pardon, except those on probation, those serving suspended sentences, or individuals with similar petitions pending before the courts. The process begins when a properly filled and formatted petition is submitted, usually through a lawyer. The process then follows a cycle consisting of seven stages: 1. Investigation Once a petition is deemed eligible, information on the applicant is collected, focusing on their post-conviction behavior. Their files are reviewed, including prison records, probation reports, court documents, medical evaluations, and intelligence reports from agencies like the Directorate of Criminal Investigations (DCI). This information is compiled into a summary report for the committee. 2. HearingThe committee then meets to deliberate on each petition. At this stage, applications may be recommended, deferred, or rejected. 3. InterviewApplicants whose petitions are recommended are interviewed by a panel. The goal is to determine whether the applicant has genuinely reformed, is remorseful, or has valid grounds for clemency, such as medical conditions, supported by relevant records. 4. Victim notificationVictims of the applicant's crimes are then notified of the pardon request and may be represented during the interview stage. 5. Review of applicationThe committee assesses applications based on various criteria: The offender's age at the time of the crime, motivation for the offense, whether it was a first offense, and the severity of the crime. Other considerations include the health status, public interest, character, and reputation of the offender. This review also aims to ensure that a candidate has served at least a third of the sentence, while those on life imprisonment or death sentences must have served at least five years. 6. Grant or denial of pardonOnce the committee has finalised its work, it recommends deserving prisoners to the president, whose decision is final. When the president grants a pardon, the Commissioner-General of Prisons is under obligation to facilitate the release of the prisoner. "The President shall, within sixty days of receipt of the recommendations by the Committee, consider the recommendations and either approve or reject the petition," reads part of the Act. "The Committee shall cause the approved petitions to be published, in the Gazette, within twenty-one days of the receipt of the President's decision." 7. Re-petitionApplicants whose requests are denied may reapply only once, and only if they can present new grounds for consideration. A pardon grant does not mean that one is acquitted of crimes committed. Instead, it only serves as proof that a prisoner is worthy of the relief granted. In law, an acquittal means that a suspect has not been found guilty of the crime they were charged with. However, a pardon acknowledges the guilty verdict but aims to reduce the court sentence or do away with it. Who is on the Power of Mercy Advisory committeeThis body operates within the office of the president. Its core function is to advise the president on how to exercise mercy upon receiving pardon requests from people in legal custody of the state. It is chaired by the Attorney General, with the Cabinet Secretary for Correctional Services serving as a member. There are seven other members who are not public servants, and from whom the vice chairperson is selected. They are only eligible for a single five-year term. The members are required to possess relevant skills, including expertise in areas such as law, psychology, human rights, children's matters, gender, correctional services, among others. The committee secretariat handles the technical operations. The Pardon officersPardon officers are key to the implementation of the mercy process. Appointed by the Cabinet Secretary in charge of correctional services, they are stationed in prisons and serve as liaisons between inmates and the committee. They inform prisoners of their eligibility, guide them through the application process, and offer advisory support on matters relating to clemency.

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