Waluke is right; president can save him from his tribulations

One of the modest consolations for Waluke lies in Article 133 of the Constitution which enables a convict to petition the president to exercise his constitutional power of mercy.

From a historical perspective, the presidential power of mercy is not fashioned as a tool to determine justice but one of exercising mercy. The urge to be merciful to others who have done wrong is found in almost every society in the world; whatever their way of life or governance. Do we not in the Quran and Sunnah refer to Allah as the Most Merciful? In the Judeo-Christian teachings, Christ in his Sermon on the Mount tells his disciples that blessed are the merciful for they will be shown mercy.

The great Russian writer Fyodor Dostoevsky in his magnum opus The Brothers Karamazov (arguably the greatest novel of all time) asks whether there is a sin so great to exhaust the infinite love of God.

Article 133 of the Constitution grants the president the authority to exercise the power of mercy. The president upon being advised by the Advisory Committee on the Power of Mercy may grant a free or conditional pardon to a convicted person, postpone the carrying out of the sentence for definite period of time, substitute a less severe form of punishment or remit all or part of the punishment.

The Power of Mercy Act provides a raft of criteria that the Advisory Committee on the Power of Mercy may utilise in its advisory to the president. They include the age of the convicted prisoner at the time of the commission of the offence, the circumstances surrounding the commission of the offence, the nature and seriousness of the offence, and the personal circumstances of the offender at the time of making the petition, including mental and physical health.

The committee may also consider the interest of the State and community, the post-conviction conduct, character and reputation of the offender and the official recommendations and reports from the State Department of Correctional Services.

From the above desiderata, it is possible that a good case may be made for Waluke to deserve the mercy of President Ruto. Indeed, no man can commit an offence so great to exhaust the infinite mercy of the State. Can there be an offence so great it could exceed the compassion of the President?

But in what manner is this vast pity of the President to be exercised in favour of Waluke? Perhaps suspending the sentence until his parliamentary tenure ends is a good option. Another merciful option would be to reduce the fine to a reasonable payable figure and direct that it is paid in instalments.

Finally, lest we forget, the right to petition the President for pardon is not only for Waluke but all those are incarcerated. And since the Constitution was promulgated in 2010, more than 14,000 prisoners have successfully petitioned the heads of government at that time, and their applications were allowed. For no one can commit an offence so great as to surpass the mercy of the State.

Mr Memba is an Advocate of the High Court of Kenya. [email protected]