Recently, newspapers carried a story about police suspicions that prisoners had been bribing prison officials to get onto a list of those to get a presidential “pardon”.

Among the issues, the newspapers said, were that the prisoners to be released included “hardcore” prisoners, that many had multiple convictions. That of the 120 involved, 82 had been jailed for robbery with violence and 22 for murder, and that most were between 32 and 50 and might resume a “life of crime”.

The police solution was to have in the Committee on the Power of Mercy (POMAC) police, NIS etc.

The story shows there is a lot of misunderstanding about the whole question of how people sentenced to prison are treated if there is reason for them not to serve their full prison term.

The idea that Heads of State can give pardons goes back centuries, to the days of sovereigns from whom all power, including justice, flowed.

But the 2010 Constitution reflects a determination to move to a criminal justice system that is not the tool of politicians, and a concept that power flows from the people, not the President.

INVESTIGATING AND CHARGING 

The police investigate crime, but they no longer decide if a suspect should be prosecuted. The Director of Public Prosecutions decides that. The DPP can order the police to investigate a crime or a person, but cannot order them not to do so. The government (Cabinet Secretary) can direct the police on policy (eg make a special push on corruption) but not about specific cases. The DPP is supposed to be independent – and must not let anyone else make his/her decisions.

Whether a person is guilty as charged is a matter for the courts, as is the decision on punishment for anyone found guilty (though the law usually gives a maximum, and may give a minimum possible). The courts must be independent in this as in all other legal decisions.

The President still has the formal power to pardon offenders and to reduce sentences. He cannot act unless POMAC recommends, but can refuse to act, despite its recommendation. The committee is made up of the Attorney General, the relevant Cabinet Secretary and five others who must not be any sort of public officer.

“Pardon” by governments will be done perhaps because a person was found guilty in a political trial (and the political scene has radically changed), or because social attitudes have changed and what was thought of as a crime is no longer. It should not be given because of political friendship with the President – a very important point, especially in these days of high-profile corruption prosecutions.

You can see that it may raise various difficult issues. It should be rarely used, particularly because it interferes with the outcome of the work of the justice system and its various elements.

“Commutation” is the reduction of a sentence — often meaning reduction done by governments, and when a sentence of death is reduced (maybe to life imprisonment). A decision seems to have made in the Moi period not to carry out any death sentence. Death sentences have regularly been commuted to life.

Another example: suppose the country decided to reduce the sentence for a particular crime very much. But there are quite a lot of people already in prison serving the old, longer sentence. This would be unfair, and a decision might be made to reduce the sentences of the people sent to prison under the old, harsher law.

Such decisions are policy, not professional decisions. In Kenya now they are formally signed by the President, but he must do if POMAC recommends. It would perhaps be problematic if POMAC declined to recommend that an existing death sentence be commuted to life – the President cannot act without that recommendation.

CORRECTIONAL SERVICES, REMISSION

Correctional Services are not specifically mentioned in the Constitution (though they were in early drafts). They are the experts in the treatment of offenders who are detained.

Kenyan law says, “Prisoners may by industry and good conduct earn a remission of one-third of their sentence”. The decisions about remission are to be made by the Commissioner of Prisons. It is a professional decision about how well prisoners are responding to their sentencing and imprisonment. If prisoners are well behaved while in prison, this is taken as an indication that they are learning their lesson – are being rehabilitated. Judges in sentencing a person will know that they may be released early because of good behaviour.

Remission is a routine, professional matter, while pardons and commutations are exceptional occurrences.

All these parts of the system must be allowed to do their job, and should not be interfered with unless they act on wrong principles or without power.

CORRECTIONAL SERVICES OR POMAC?

As I read the law, POMAC (and of course the President) has no role to play in decisions about remissions. But any application for pardon or commutation of a sentence would be passed to POMAC (through correctional services). In the past, the Prisons Act required a Board of Review (appointed by the President) that did have a role in looking at cases for remission. But this has disappeared from the law.

And prison officers should not decide whether anyone gets the benefit of a presidential action – that is a matter for POMAC and then the President. POMAC must consider each case individually (a basic principle of administrative law). It is not clear why, then, the police accuse prison officers of being bribed to “select the convicts to be freed”.

Without more details, it is hard to know what procedure had been followed and how valid the concerns were.

Robbery with violence used to carry an automatic death sentence. In early 2018, the Supreme Court said that this was unconstitutional – the court should have room to adjust penalties to the degree of guilt of offender and their personal circumstances.

Most people who had been sentenced to death had been found guilty of robbery with violence – which covers a very wide range of actions. Stealing something small without violence can become “robbery with violence” just because more than one person was involved in committing the crime.

People already on death row or who had had their sentenced commuted were to be resentenced. This year, the courts expect to resentence 400 such people.

So how did so many people come to be asking POMAC to reconsider their sentences? If they were already sentenced before the Supreme Court case, they would have a resentencing date with the court. If afterwards, they should appeal to a higher court – the normal way to challenge a sentence.

There is, however, a reason why people sentenced for murder or robbery with violence might be approaching the Committee: No remission is possible for people serving a life sentence. The law seems to assume that such people cannot be rehabilitated.

In some countries, there is a system for allowing life prisoners to be released on licence once they have served a certain time, and if they seem to be suitable for release. But this is not possible in Kenya – so the only way for a prisoner to get out of prison early is to go via POMAC. This may explain why 104 prisoners applying had been jailed for robbery with violence or murder.

The proposal to include the police, NIS and DPP in POMAC is misconceived – and unconstitutional. Yes POMAC should have all the information it needs – but the whole idea was that its decisions should not be made by public officers.

CONCLUSION

Our sentencing, imprisonment and pardoning laws and procedures are a mess, and the vision of the Constitution neither understood nor respected. They need to be re-thought, ensuring that the responsibilities and skills of different actors in the system are used appropriately, and the rights of everyone involved are respected.

By Jill Cottrell Ghai, Director, Katiba Institute

This article was first published by the Star newspaper on 17th August 2019