Inmates and correctional officers at Kamiti Maximum Security Prison.
I am a paralegal based in Western Kenya. In our village in Busia, someone who has been imprisoned for a long time has returned home, and his presence is causing concern among relatives. He claims that he received a presidential pardon. What does this mean?
Dear Concerned Paralegal,
The criminal justice system aims to provide justice for both offenders and victims. It is designed to address and remedy offences in a way that enhances safety, security, character, and the quality of relationships. The system seeks to achieve several goals, including deterrence, reform, retribution, reconciliation, community protection, and rehabilitation.
To this end, the justice system allows for clemency and pardons for reformed offenders who have served part of their sentences. The power of pardon is enshrined in the Constitution, specifically in Article 48 concerning the right to access justice, and is further outlined in Article 133. In Kenya, the President has the authority to grant pardons to convicted individuals who have served part of their sentences, based on the recommendations of the Advisory Committee on the Power of Mercy, which was established by the Power of Mercy Act as per Article 133(2) of the Constitution.
The committee's recommendations may include: (a) granting a free or conditional pardon to a person convicted of an offence; (b) postponing the enforcement of a punishment for a specified or indefinite period; (c) substituting a lesser form of punishment or (d) remitting all or part of a punishment.
This committee is made up of the Attorney-General, the Cabinet Secretary responsible for correctional services, and other appointed members. The process for a Presidential Pardon begins when an offender submits a petition to the committee. The committee reviews the petition based on the criteria outlined in Sections 19 and 21 of the Power of Mercy Act. It is particularly important to note that the applicant must have served at least one-third of the sentence imposed by the court. Additionally, a person who has been convicted and sentenced to life imprisonment or death must have served at least five years if their sentence has not been altered.
The Committee may take into account several factors when considering a petition for pardon, including the age of the convicted individual at the time the offence was committed; the circumstances surrounding the commission of the offence; whether the person on whose behalf the petition is made is a first-time offender; the nature and seriousness of the offence; the length of time the individual served in remand; the personal circumstances of the offender at the time the petition is made, including their mental and physical health and any disabilities; the interests of the State and the community; the post-conviction conduct, character, and reputation of the convicted individual, and official recommendations and reports from the State organ or department responsible for correctional services.
Additionally, the opinions of the victims of the offence may be sought, as outlined in Article 133(4) of the Constitution. After considering all relevant factors, the Committee makes recommendations to the President, who may either approve or reject them. If the recommendation is approved, it is important to note that the pardon should not be viewed as an acquittal. If the recommendation is rejected, the individual may apply to re-petition only once and must provide new grounds for their request. In summary, a presidential pardon does not erase the conviction itself but rather forgives the offence and its associated punishment.
This procedure is guided by the Power of Mercy Committee (Procedure) Regulations, which emphasise transparency and fair administrative action in accordance with Article 10 and 47 of the Constitution, respectively, and the need for a written decision outlining reasons for granting or denying a pardon. Despite its noble intent, the re-entry of pardoned individuals into society can be challenging. Communities may doubt the legitimacy of the release or fear re-offending. Such stigma can hinder reintegration, undermining the rehabilitative goals of the pardon system. Community members should, however, remember that the Constitution, under Article 27, prohibits discrimination, whether direct or indirect, against any person on any ground. Moreover, Article 28 advocates for the respect and protection of a person’s dignity.
Kenya’s Probation and Aftercare Service plays an integral role in helping former offenders reintegrate into society by guiding both individuals and communities. It represents a careful balance between justice and compassion, founded on the belief that people are capable of change. Although the return of someone pardoned may cause unease within the community, it remains a legitimate and well-founded legal process that reflects the country’s respect for human dignity and commitment to rehabilitation. Citizens are therefore encouraged to recognise that such persons have been freed lawfully and to support their reintegration, as this fosters understanding and restorative justice.
