Revealed: Person pardoned by President might have been serving jail illegally

Some of the inmates at Kamiti Maximum Prison follow through a previous even at the facility. [Stafford Ondego, Standard] One of the persons pardoned by President William Ruto was set free by the court six years ago. A search done by The Standard on Sunday reveals that Jane Chesigei Sang ought to have been released in 2016 after she won an appeal against the state. Therefore, if she was behind bars, then she was being held illegally by the state. On the flip side, if she had already been released in 2016 as it had been ordered by Court of Appeal Judges Phillip Waki, Roselyn Nambuye, and Patrick Kiage, then the Power of Mercy Advisory Committee came in too late. Chesigei was freed after the court found that she was suffering from mental illness at the time she allegedly killed her son Collin Kipkoech Sang at Ogilgei farm in Nakuru. The High Court in 2007 found Chesigei guilty of murder but insane. She was to be held under the President's pleasure. In her appeal, Chesigei told the court that she could not remember what happened on the night of May 19 and 20, 2007. Justices Waki, Nambuye, and Kiage were unanimous that failure to call a witness who was with Chesigei in the kitchen and failing to consider that she was mentally sound was too fatal to the State's case against Chesigei. "Accordingly, we find and hold that failure to call him as a witness not only invited an inference that his evidence would have been adverse to the prosecution case but actually weakened the prosecution case and effectively cast doubt as to whether the appellant was culpable for the murder of the deceased. It failed to exclude other possibilities including accident or the involvement of a different party," the bench headed by Justice Waki. The pardon by the President however brings to the limelight the Power of Mercy Advisory Committee. Although Ruto allowed persons who had been found guilty but insane to leave prison, Courts have found that President no longer has powers to determine how long such persons serve in jail. Courts have held that sections 166 and 167 of the Penal Code, which mandate the detention of an individual at the President's pleasure, are unconstitutional. In a case filed by Charles Kipkoech, Justice Joel Ngugi (now a Court of Appeal Judge) ruled that holding a person at the President's pleasure is unconstitutional as it gives the President a sentencing role, breaching the separation of powers. He was of the view that sentencing is a role of a judicial officer or a judge. At the same time, he found that the two penal sections do now allow a magistrate or a judge to consider circumstances under which an offence was committed in order to hand an appropriate sentence. "A sentence to hold an individual at the President's Pleasure is an indefinite sentence which, according to emerging and evolving standards of decency and international human rights law is an inhuman and degrading punishment," said Prof Ngugi. In the meantime, Article 133 of the Constitution states that any person may petition the President, through the committee to exercise power of mercy. According to the Power of Mercy Act, the President may exercise the power of mercy by pardoning a convicted person, postponing a punishment either for a period or indefinitely, substituting a sentence with a less severe one or remitting all or part of the punishment. Section 21 (2) of the same Act states that those who can be considered are convicts who have served at least a third of the sentence or in instances where one had been sentenced to death or life, he or she had served at least five years. Once a convict has petitioned, the committee investigates his or her by looking at the prison report, probation officer's report, court record, medical report, security agency vetting report, and the convict's petition summary. They then interview the convict to get his or her demeanor. The assessment entails whether her 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. The committee then notifies the victims and then informs the convict whether the petition is successful or denied. However, there is one more step. The President can reject or allow the committee's recommendation within six days of his receipt of the report. The committee is headed by Attorney General Justin Muturi, and its Vice Chair is Dr. Janet Kirui. Interior CS Prof. Kithure Kindiki, Jerim Oloo, Dr. Scholastic Adeli, David Macharia, Richard Mativu, Abdi Hassan are members while Dr. Lydia Muriuki is the secretary

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