Power of Mercy Act

Section 1. Short title Section This Act may be cited as the Power of Mercy Act.

Section 2. Interpretation Section 2(1) In this Act, unless the context otherwise requires— "acquittal" means a judgment that a person has not been found guilty of the crime with which the person had been charged; "Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to correctional services; "chairperson" means the chairperson of the Committee provided for under section 5 (2); "Chief Registrar" means the Chief Registrar of the Judiciary referred to in Article 161 of the Constitution; "Committee" means the Advisory Committee on the Power of Mercy established pursuant to Article 133(2) of the Constitution; "convicted criminal prisoner" means any criminal prisoner under sentence of a court or a court martial, and includes a person detained in prison under sections 162 to 167 of the Criminal Procedure Code (Cap. 75); "correctional facility" means an institution used to detain persons who are in the lawful custody of the State, whether accused persons awaiting trial or convicted criminal prisoners serving a sentence, and includes a prison established or deemed to have been established under section 24 of the Prisons Act (Cap. 90) and a youth...

Section 3. Application Section The provisions of this Act shall govern all matters relating to a petition for the exercise of power of mercy by the President pursuant to Article 133 of the Constitution.

Section 4. Guiding principles Section In the performance of the functions and exercise of powers under the Constitution and this Act, the President and Committee shall act in accordance with Article 47(1) of the Constitution and be guided by the values and principles set out in Article 10 of the Constitution.

Section 5. Composition of the Committee Section 5(1)(a) the members appointed under Article 133(2)(a) and (b) of the Constitution; and Section 5(1)(b) seven other members appointed in accordance with the provisions of this Act. Section 5(2) The Attorney-General shall be the chairperson of the Committee. Section 5(3) The members under section 5 (1)(b) shall serve on a part-time basis.

Section 6. Qualification for appointment as a member Section is a citizen of Kenya;

Section 7. Disqualification for appointment as a member Section 7(1)(a) is a member of a governing body of a political party; Section 7(1)(b) is an undischarged bankrupt; Section 7(1)(c) has been convicted, whether in Kenya or elsewhere, of an offence and sentenced to imprisonment for a term exceeding six months without the option of a fine; Section 7(1)(d) is unable to perform the functions of office due to mental incapacity; or Section 7(1)(e) has been removed from public office for contravening the provisions of the Constitution or any other law. Section 7(2) Notwithstanding subsection (1)(c), a person who has fully served the sentence shall be not be disqualified for appointment as a member of the Committee.

Section 8. The constitution of the panel Section 8(1)(a) declare vacancies in the panel; and Section 8(1)(b) constitute a panel. Section 8(2)(a) a chairperson, who shall not be a State officer or public officer, appointed by the President; Section 8(2)(b) the Principal Secretary in the Ministry for the time being responsible for matters relating to justice or his or her representative appointed in writing; Section 8(2)(c) the Principal Secretary in the Ministry for the time being responsible for correctional services or his or her representative appointed in writing; Section 8(2)(d) the Commissioner of Prisons or his or her representative appointed in writing; Section 8(2)(e) a representative of the Office of the President; Section 8(2)(f) a representative of the Office of the Prime Minister; Section 8(2)(g) the joint forum of the religious organizations described in subsection (3); Section 8(2)(h) a representative of the commission for the time being responsible for matters of human rights; and Section 8(2)(i) a representative of the department or commission for the time being responsible for matters of gender. Section 8(3)(a) the Supreme Council of Kenya Muslims; Section 8(3)(b)...

Section 9. Procedure for appointment of a member Section 9(1) Once the panel is constituted in accordance with section 8 , the panel shall, within seven days of its convening, by advertisement in at least two daily newspapers of national circulation, invite applications from persons who qualify for appointment as members of the Committee under section 5 (1)(b). Section 9(2)(a) consider the applications received under subsection (1) to determine their compliance with the provisions of the Constitution and this Act; Section 9(2)(b) short list the applicants; Section 9(2)(c) publish the names of the shortlisted applicants and the qualified applicants in at least two daily newspapers of national circulation; Section 9(2)(d) conduct interviews of the shortlisted persons in public; Section 9(2)(e) recommend to the President ten suitably qualified persons for appointment as members. Section 9(3) The President shall, within seven days of receipt of the shortlisted persons under subsection (2), by notice in the Gazette , appoint seven members from among the persons recommended by the panel.

Section 10. General principles of appointing of members Section have regard to ethnic and regional diversity of the people of Kenya;

Section 11. Oath of office Section Before assuming office, the members and secretary of the Committee shall each make and subscribe, before the Chief Registrar, the oath or affirmation set out in the First Schedule.

Section 12. Election of vice-chairperson Section 12(1) The chairperson shall, within seven days of the appointment of the members, convene the first meeting of the Committee at which the members shall elect the vice chairperson of the Committee from amongst their number. Section 12(2) The vice chairperson shall be elected from amongst the members appointed under section 9 (3). Section 12(3) The chairperson and vice chairperson shall not be of the same gender.

Section 13. Tenure and vacancy in the office of a member Section 13(1) Members of the Committee, apart from the Attorney-General and Cabinet Secretary, shall hold office, for a single term of five years, and shall not be eligible for re-appointment. Section 13(2)(a) dies; Section 13(2)(b) resigns from office by notice in writing addressed to the President; Section 13(2)(c) is convicted of an offence and sentenced to imprisonment for a term exceeding six months without the option of a fine; Section 13(2)(d) is absent from three consecutive meetings of the Committee without good cause; Section 13(2)(e) is adjudged bankrupt; Section 13(2)(f) is found guilty of gross misconduct; or Section 13(2)(g) is unable to perform any of the functions of the office. Section 13(3) The President shall notify every resignation, vacancy or termination in the Gazette within fourteen days thereof. Section 13(4) Where a vacancy occurs in the membership of the Committee, the appointment procedure provided for in Article 133(2) of the Constitution and section 9 shall, with necessary modifications, apply. Section 13(5) A member appointed under subsection (4), shall serve for a single term of five years and...

Section 14. Functions of the Committee Section undertake or commission research and collect data on matters relating to the power of mercy;

Section 15. Powers of the Committee Section 15(1) The Committee shall have all powers necessary for the execution of its functions under the Constitution and this Act. Section 15(2)(a) may, subject to this Act, determine its procedure; Section 15(2)(b) shall, where appropriate, receive written or oral statements; Section 15(2)(c) may establish sub-committees; Section 15(2)(d) may co-opt into its sub-committees persons whose knowledge and expertise it requires; Section 15(2)(e) is not bound by the strict rules of evidence; and Section 15(2)(f) shall conduct interviews of the individuals on whose behalf the petition is made.

Section 16. Secretariat Section 16(1) The office of the President shall provide secretariat services to the Committee. Section 16(2) There shall be a secretary to the Committee who shall be a public officer nominated by the Public Service Commission through a competitive process and appointed by the President.

Section 17. Appointment of a pardon officer Section 17(1) For the purpose of this Act, the Cabinet Secretary shall, by notice in the Gazette , appoint pardon officers, who shall be public officers seconded to the Committee and stationed at correctional facilities as shall be prescribed. Section 17(2)(a) report directly to the Committee on all matters related to the power of mercy; Section 17(2)(b) advise the internal mechanism in each correctional facility on all matters relation to the power of mercy; and Section 17(2)(c) be responsible for assisting the applicants in the preparation of petitions and providing general information on the power of mercy to the prisoners.

Section 18. Conduct of the affairs of the Committee Section 18(1) The business and affairs of the Committee shall be conducted in accordance with the Second Schedule. Section 18(2) Except as provided for in the Second Schedule, the Committee may regulate its own procedure. Section 18(3) The Committee may invite any person to attend any of its meetings and to participate in its deliberations, but such a person shall not have a vote in any decision of the Committee.

Section 19. Eligibility to file a petition Section 19(1) Any person may, subject to the Constitution and this Act, petition the President, through the Committee, to exercise the power of mercy and grant any relief specified in Article 133(1) of the Constitution. Section 19(2)(a) the person for whose benefit it is made, is on probation or serving a suspended sentence; or Section 19(2)(b) an application for any judicial remedy is pending before a court.

Section 20. Commencing a petition Section 20(1) An application for the exercise of the power of mercy shall be by a petition in the prescribed form. Section 20(2) The petition referred to in subsection (1) shall comply with the requirements set out in the Third Schedule. Section 20(3)(a) it does not accord strictly with the prescribed format; or Section 20(3)(b) it has been commenced in person or through a representative other than an advocate. Section 20(4) A petition under this section may be lodged by electronic means. Section 20(5) The Cabinet Secretary and Committee shall ensure that the relevant forms and information are supplied to all the correctional facilities.

Section 21. Consideration of petitions, notification of victims, etc. Section 21(1)(a) determine the admissibility of the petition; Section 21(1)(b) calling for evidence; Section 21(1)(b)(i) calling for evidence; Section 21(1)(b)(ii) where appropriate conducting interviews; Section 21(1)(b)(iii) conducting investigations; Section 21(1)(b)(iv) receiving and reviewing the necessary reports from appropriate government agencies or officials; and Section 21(1)(c) make appropriate recommendations to the President in accordance with the Constitution. Section 21(2)(a) whether the convicted criminal prisoner has served at least one-third of the sentence pronounced by a court; Section 21(2)(b) where a person who is convicted and sentenced to imprisonment for life or to death and whose sentence has not been effected, has served for at least five years; or Section 21(2)(c) any other matter that the Committee may consider necessary. Section 21(3) The Cabinet Secretary shall, by notice in the Gazette , from time to time, publish the venue and time where a public hearing and interviews by the Committee shall be conducted. Section 21(4) Where the relief sought under this Part relates to a convicti...

Section 22. Criteria to be applied by the Committee Section 22(1)(a) the age of the convicted criminal prisoner at the time of the commission of the offence; Section 22(1)(b) the circumstances surrounding the commission of the offence; Section 22(1)(c) whether the person, for whose benefit the petition is made, is a first offender; Section 22(1)(d) the nature and seriousness of the offence; Section 22(1)(e) the length of period so far served by the convicted criminal prisoner; Section 22(1)(f) the length of period served by the convicted criminal prisoner in remand; Section 22(1)(g) the personal circumstances of the offender at the time of making the petition, including mental and physical health and any disabilities; Section 22(1)(h) the interest of the State and community; Section 22(1)(i) the post-conviction conduct, character and reputation of the convicted criminal prisoner; Section 22(1)(j) the official recommendations and reports from the State organ or department responsible for correctional services; Section 22(1)(k) where the petitioner has opted to pursue other available remedies, the outcome of such avenue; and Section 22(1)(l) the representation of the victim where app...

Section 23. Notification of grant or denial of petition Section 23(1) The President shall, within sixty days of receipt of the recommendations by the Committee, consider the recommendations and either approve or reject the petition. Section 23(2) Where the President approves or rejects a recommendation of the Committee pursuant to subsection (1), the Committee shall, in writing, notify the petitioner or their representative of the President’s decision within seven days. Section 23(3) The Committee shall cause the approved petitions under subsection (1) to be published, in the Gazette , within twenty-one days of the receipt of the President’s decision. Section 23(4) The decision of the President for each petition made under this section shall be final. [Act No. 25 of 2015 , Sch.]

Section 24. Re-petition Section 24(1) Notwithstanding section 23 (4), a person may, after the rejection of a petition under section 23 (1), re-petition only once and on new grounds, to the President through the Committee. Section 24(2)(a) consider a request for a re-petition referred to it under subsection (1); and Section 24(2)(b) where it is satisfied that the request raises reasonable facts, inform the petitioner of the outcome and require the petitioner to file the petition in the prescribed manner. Section 24(3) The procedure for a petition under this Act shall apply to a re-petition.

Section 25. Effect of pardon Section 25(1)(a) such pardon shall operate as conclusive proof that the Committee and the President are satisfied that the petitioner for the pardon is deserving of the relief; and Section 25(1)(b) the pardon shall not be construed to be an acquittal. Section 25(2) The chairperson may require any person having the custody or control of any judicial record of a conviction in respect of which a pardon has been granted, to deliver that record into the custody of the Committee.

Section 26. Financial arrangements Section 26(1) The expenses incurred by the Committee in accordance with the Constitution and this Act shall be borne by the Office of the President. Section 26(2) The members of the Committee may be paid such allowances as may be determined by the Cabinet Secretary responsible for matters relating to finance in consultation with the Salaries and Remuneration Commission.

Section 27. Conflict of interest Section 27(1) A member of the Committee who has a direct or indirect personal interest in a matter being considered or to be considered by the Committee shall, as soon as reasonably practicable after the relevant facts concerning the matter have come to their knowledge, disclose the nature of the interest to the Committee. Section 27(2) A disclosure of any such interest in a matter shall be recorded in the minutes of the meeting of the Committee and the member shall not be present while that matter is being dealt with by the Committee and shall not take part in any deliberations or vote relating to the matter. Section 27(3) No member or staff of the Committee, including their family members, shall transact any business or trade with the Committee. Section 27(4) A person who contravenes subsection (1) or (3) commits an offence and shall be liable, on conviction, to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding ten years, or to both.

Section 28. Recommendations of the Committee Section 28(1) The recommendations of the Committee shall be in accordance with the opinion of a majority of the members reviewing a petition. Section 28(2) If the members are equally divided in opinion, a recommendation for the grant of the relief sought shall be considered as having been affirmed.

Section 29. Annual reports Section 29(1) The Committee shall cause an annual report to be prepared for each financial year. Section 29(2) The Committee shall submit the annual report to the President and Parliament within three months after the end of the year to which it relates. Section 29(3)(a) the financial statements of the Committee; Section 29(3)(b) a description of the activities of the Committee; Section 29(3)(c) such other statistical information as the Committee considers appropriate relating to its mandate; Section 29(3)(d) any other information relating to its functions that the Committee considers necessary. Section 29(4) The Committee shall cause the annual report to be published in the Gazette and in such other manner as the Committee may determine.

Section 30. Legal proceedings Section Proceedings against the Committee shall be deemed to be proceedings against the Government and shall be subject to the Government Proceedings Act (Cap. 40).

Section 31. Protection from personal liability Section No matter or thing done by a member of the Committee shall, if the matter or thing is done in good faith for executing the functions, powers or duties of the Committee, render the member personally liable to any action, claim or demand whatsoever.

Section 32. Management of information and records Section 32(1) The Committee shall publish and publicize all important information within its mandate affecting the nation. Section 32(2)(a) shall be addressed to the chairperson or such other person as the Committee may for that purpose designate and may be subject to the payment of a reasonable fee in instances where the Committee incurs an expense in providing the information; and Section 32(2)(b) may be subject to confidentiality requirements of the Committee. Section 32(3)(a) the disclosure of such information is undesirable in public interest or the interests of the administration of justice; or Section 32(3)(b) the information requested is at a deliberative stage by the Committee. Section 32(4) The right of access to information under Article 35 of the Constitution shall be limited to the nature and extent specified under this section. Section 32(5) Every member and staff assigned to the Committee shall sign a confidentiality agreement.

Section 33. General penalty Section A person who contravenes the provisions of this Act commits an offence and shall be liable on conviction, where no other penalty is provided, to a fine not exceeding one million shillings, or imprisonment for a term not exceeding five years, or to both.

Section 34. Prescribed forms Section 34(1) Subject to the Third Schedule, the Cabinet Secretary shall, in consultation with the Committee, prescribe forms to be used for the purposes of filing petitions and relevant notices under this Act. Section 34(2) Notwithstanding subsection (1), an instrument or document which deviates from the prescribed form shall not be void by reason of a deviation and such deviation shall not affect the substance of the instrument or document, unless it is calculated to mislead.

Section 35. Regulations Section 35(1) The Cabinet Secretary may make regulations generally for the better carrying into effect the provisions of this Act. Section 35(2)(a) the conduct of the Committee’s operations and proceedings, including the mandatory interviews of the convicted criminal prisoner; Section 35(2)(b) the manner of receiving and processing petitions; Section 35(2)(c) any summary procedure the Committee may adopt in the execution of its mandate; Section 35(2)(d) the steps that may be taken by the Committee before a determination; Section 35(2)(e) matters relating to the conditions that shall apply in the determination and circumstances that may lead to the grant of power of mercy in accordance with Article 133(1)(a) to (d) of the Constitution; Section 35(2)(f) the deployment of pardon officers to correctional facilities; Section 35(2)(g) the just, efficient and expeditious determination of petitions under the Constitution and this Act. Section 35(3) Nothing in this Act shall limit or otherwise affect the power of the Committee conferred by the Constitution or under this Act, either on its own motion or on the application of any person, to make such orders as may be n...

Section 36. Transitional Provisions Section The provisions of section 29(2) of the Sixth Schedule to the Constitution shall apply with respect to the appointment of the members of the panel and of the Committee.