The presidential power of mercy needs another look
Updated: Aug 5
Now under new management, the Power of Mercy Committee may have generated both a celebratory win and more controversy for the Presidency. Last week President Ruto commuted sentences for death row prisoners to life imprisonment. The Committee also advised the president to pardon 37 prisoners with some very troubled backgrounds. The first needs saluting, but the second needs closer attention.
First, a disclosure, I am an abolitionist. I believe, based on evidence and ethics that the death penalty is cruel, inhuman punishment and is no longer a deterrent for serious criminals. Two Kenya National Commission on Human Rights opinion surveys over the last couple of years suggest that I may not be alone. Like other citizens across the world, a growing number of Kenyans are in favor of abolishing the death penalty. The President’s commuting of their sentences is therefore a very welcome first step to the abolition of the death penalty from our statute books. We hope he will follow up and abolish the death penalty ahead of Death Penalty Day on 10 October.
Secondly, I believe that for criminal justice to truly work it must be insulated from political influence and corruption. It must deliver justice fairly, equally, and quickly and be founded on transformative justice. Transformative justice seeks to overhaul the system that created the conditions for crime. It is different from punitive justice that focuses on punishing the wrongdoer or even restorative justice that seeks to repair the harm the wrongdoer may have caused. Rather than arresting and sentencing individual youth involved in petty crime or even seeking to rehabilitate them, we need to invest in anti-crime and anti-poverty programmes, this logic goes.
Article 133 of the Constitution is founded on the principle of restorative justice. It vests the power of mercy in the Office of the President upon the advice of the Advisory Committee comprising of the Attorney-General, Interior Ministry Cabinet Secretary and five members of the public.
The power of pardon has existed across many states for hundreds of years. The Egyptian, Malian, and Greek empires all vested these powers in their rulers. Over the last 225 years, American Presidents have controversially forgiven crimes committed by friends, family, and public figures. In 1974, President Gerald Ford shocked Americans and probably lost the 1976 elections when he pardoned his disgraced predecessor Richard Nixon.
In 2018, President Abdel Fattah El-Sisi pardoned 300 suspects for participating in “unauthorized protests” on his twitter handle (now X). In 2020, President Trump spent his last few hours pardoning and commuting 143 people including former strategist ally Steve Bannon and former top fundraiser Elliott Broidy convicted of money laundering and violating foreign Government lobbying laws respectively. Four months ago, Zimbabwean President Emmerson Mnangagwa’s decision to release 4,270 prisoners ahead of the General Elections later this month was criticized as a strategic re-election campaign tactic.
On 21 July, President Ruto commuted the sentences of 37 persons serving stiff sentences for stealing public health finance, murder, rape of adults and minors and robbery with violence and theft. A cursory look at some of the cases leaves one wondering whether justice has been served for their victims, rehabilitation has taken place and whether the experience will deter future serious criminals. Their release after serving a small portion of their sentences is questionable.
Impunity remains the common denominator in the lack of confidence in our justice system. Police officers often mistakenly argue extra-judicial killings are the only way to deal with hardened criminals. Ensuring that there are prompt and effective investigations, independent prosecution, fair trials, and appropriate sentencing is the only way to restore public confidence.
While the power of mercy is a presidential prerogative, let’s invite the Senate Justice, Legal Affairs and Human Rights Committee to scrutinize the list of those released last week. Let them determine whether the pardons were in the public interest or unduly influenced. Justice is not only a deterrent for others who may seek to commit crimes against us, it is also important for survivors and victims’ families.
This opinion was also published in the Saturday Standard on 4 August 2023