Clemency can't deal with judicial excesses

When Kenyans celebrated 52 years of self-rule on 12 December, 2015, some 66 prisoners benefited from presidential pardon.

The number of pardons was quite dismal compared to the 23,808 petitions received for presidential pardon between July 2013 and June 2014.

Most notably is that more than 75 per cent of inmates in Kenya are innocent and that could explain the number of petitions. The power to grant mercy to someone who is unjustly serving a long sentence, is one of the most important constitutional powers a president can exercise against a sometimes not-so-just criminal justice system.

Contrary to what media reports depict, the President does not at his own discretion exercise the power of mercy. This is done through a legal framework and advisory committee enacted by the Power of Mercy Act 2011 that is also entrenched in the Constitution.

Under the Constitution, executive powers may not be entirely removed from the Presidency, he (the President) can issue pardons or commutes (shorten or prescribe other punishment) on recommendation of the Power of Mercy Advisory Committee (Pomac), which takes account of the views of victims before advising the President.

These prisoners are termed victims because, as indicated by the committee's vice chairperson Regina Boisabi, more than 75 per cent of inmates are innocent. The criteria for inmates to be considered for presidential pardon includes time served, age and special cases like the elderly and the sick.

Pomac draws its mandate from the Power of Mercy Act, 2011 which was one of the 23 laws enacted in the first year of implementation of the Constitution. If justice is to be served, the capacity in the Judiciary to deal with petitions should certainly be enhanced.