I read an article in the New York Times that reminded me, not for the first time, of how in many ways our Constitution is superior – or potentially superior – to that of the United States. Yet as I pursued the topic in Kenya, I realised that our law is even more of a mess than I had previously realised.

THE US
The article was about President Trump’s use of the power to pardon, explaining that several of those he has pardoned have since been convicted of (other) criminal offences. These people were “are either allies of Trump and his associates or used connections to Trump or his family (or helped enrich Trump) to get relief from justice”.

The President also used his presidential powers to pardon a large number of people who tried to overthrow the 2020 election results by invading Congress. Various other presidents have given self-seeking pardons to associates and relatives, including Clinton and Biden.

Mediaeval monarchs asserted this power. The Times author suggested this was “one of the last vestiges of royalty in American law.”

OUR CONSTITUTION
Our President has a relic of that role, but only to approve or not approve the recommendation of a committee set up under the Constitution (Article 133 ). The President cannot issue any order not recommended by the Power of Mercy Advisory Committee – or Pomac.

Article 133 is not just about pardons. It also allows the postponement of a punishment, changing the sentence to a less severe one, reducing the length of sentence or removing it entirely. It goes much further than is possible in many countries. The usually accepted meaning of “pardon” means – you were guilty but are forgiven. The conviction can no longer be relied upon – for example, to refuse someone a job.

The powers of Pomac and the President remained the same in every draft of the Constitution. The provision was copied from the Uganda Constitution. The Uganda Constitution Commission said, “it should not be a power exercised for political reasons, and we therefore believe it should only be exercised on advice of an independent body.” I fear that this history may have meant it was not carefully analysed by our drafters.

THE CURRENT SYSTEM
Pomac works hard, I believe, and has made useful suggestions for reforming the law. But we know little about how the system works.  In  2023-24  Pomac received 460 petitions. The largest number had been convicted of defilement followed by murder then robbery with violence. The Pomac’s annual report does not state clearly what happened to these petitions. The names of those whose petitions are granted are published in the Gazette, but with no details of the offences, the sentences or what they have been relieved of.

In April this year the President accepted recommendations to release conditionally 31 prisoners serving life sentences, and 25 others were released. We do not know if he rejected any recommendation.

COMMENTS
I suggest that the drafters of our Constitution were wrong to introduce the Ugandan provisions into our law. What business does the President have getting involved in whether people are to be treated as guilty of a crime or not, and what sentence they should serve? How does it fit with the independence of the Judiciary?

A decision that a court has wrongly found someone guilty, or has imposed a seriously wrong sentence, ought to be decided by the courts. This is what appeals are for. In fact, the Constitution also provides a system for raising an issue if new evidence comes to light at a stage when, normally, it would be too late for an appeal. This approach should be expanded, rather than involving the President.

Some other possible situations might require a special procedure. The law might make a particular act no longer a crime. Or a major reduction in sentence is passed. Or social attitudes change, and a formerly normal sentence becomes unacceptable. If  Parliament decriminalises something, it ought to state in the Act what should happen to people already convicted of that offence.

If the courts do it,  they should similarly think about those convicted – as they did when making the death sentence no longer automatic for murder. In Kenya, we do need some procedure to deal with the complete mess over the death penalty. For some crimes the death penalty is mandatory –including for armed robbery, and occasionally a court sentences a murderer to die.

No one is ever executed. So every death sentence imposed must eventually be changed – usually to a life sentence. This situation results in part from Presidents deciding not to carry out the penalty. Maybe it is right to leave the commutation to presidents – or maybe Parliament could amend the Penal Code so that if the sentence is not carried out within a certain time, it is automatically commuted to life. Other reasons for making decisions about sentences while prisoners are undergoing them include release because of old age or sickness.

Prisoners who seem ready to be released with some chance of their not re-offending should be considered for reduction of sentence or parole. The Prisons Act says, “Prisoners may by industry and good conduct earn a remission of one-third of their sentence”. The Commissioner of  Prisons makes decisions about remission.

It is a professional decision, and should be made by professionals. At present, confusingly, we have two systems of remission: under the Act and through Pomac. However,  currently  there  is  no possibility of remission of a life sentence, so the only possibility of early release is through Pomac. Provision should be made for remission even for lifers – the courts have refused, so it would need legislation.

In April this year, the President granted, on the basis of Pomac recommendations, “general amnesty to all petty offenders sentenced to six months or less; and offenders serving sentences longer than six months, whose remaining terms are now six months or less.” Figures were in the thousands. It’s not clear what procedure was used for this, not that laid down in the Act, for individual petitions. Such measures may be necessary (during Covid it was important to decongest prisons) – but why involve the president?

WHAT’S LEFT FOR THE PRESIDENT?
I suggest that the role of the President should be restricted to matters of national interest. Maybe there is room for the occasional pardon or some other special treatment for special reasons, some of which might involve foreign affairs. These cases would be ones for which the expertise of the Judiciary or correctional services is not useful. You could call them political. But they must not be party political, or of personal benefit to the person granting the treatment. And for that, a committee that could bring to bear moral, legal and political judgment would be necessary.

I believe the Constitution ought to have taken this limited approach instead of the current confusing one. Otherwise, the issues should be for experts, with perhaps some public input, as well as allowing the victims to make input, which the Constitution requires. I see no reason why they should involve the president.

Apparently the Cabinet has approved the Power of Mercy Bill 2025. I have not seen this. If it is like the Bill of 2023 it has many interesting ideas.

Finally – why did I say at first that the Constitution is only “potentially superior” to that of the US because of Article 133? Because of the suspicion widely held that politics and other irrelevant factors are involved far before the post–sentence stage. We see how rarely prominent people are charged and few are actually convicted. How cases collapse, are  withdrawn or mysteriously go quiet. And this is when in theory the decisions are being made by institutions that are constitutionally independent.

This article was first published by The Star Newspaper.

Image:XINHUA