Hope for freedom dashed by debate on Uhuru's powers

The constitution stipulates a president serving temporary incumbency does not have the power to pardon prisoners

Prisoners who were hoping to be released during 2017 Mashujaa day celebrations could have become the latest casualties of the ongoing political crisis.

The inmates' fate appears to be sealed by a raging disagreement on powers that President Uhuru Kenyatta can exercise and whether he is serving on temporary incumbency or not.

Uhuru has maintained several times that he is the sitting president while the National Super Alliance (NASA) has insisted he is serving under temporary incumbency.

The constitution stipulates a president serving temporary incumbency does not have the power to pardon prisoners and confer honours, two rituals that have often been exercised on public holidays.

A source at the Power of Mercy Committee Thursday told The Standard that the president might not be releasing any prisoners today. 

“No list has been prepared, this was supposed to be done at least two weeks ago,” said the source.

“These things happen on a rolling basis, but so far we have not been asked for a list by State House unless they do it today,” said the source.

It is also unlikely the president will award any heroes, although The Standard could not get State House to confirm or deny this.

Article 134 of the constitution lists six things a person serving as President on temporary incumbency cannot do on behalf of the people of Kenya.

These include the power of mercy and the authority to confer honours. Such a president also lacks the power to nominate or dismiss judges, public officers, ambassadors or senior diplomatic officers.

Since independence, presidents have always used national holidays to award outstanding Kenyans for their service to the nation. Recipients include academicians, technocrats, politicians, clergymen, athletes, journalists, entrepreneurs or even activists.

Last Mashujaa day, the president awarded the Order of the Grand Warrior (posthumous) to Salah Farah who died from injuries sustained while she shielded Christians from being killed by Al Shabaab militants who had attacked a bus heading to Nairobi from Mandera in November 2015.

Since 2015, when he first exercised his Power of Mercy the president has made it a habit of releasing prisoners every Mashujaa day without fail. Last year he pardoned 7,000 petty offenders.