Why Kenya should rethink presidential pardon powers

The Head of Public Service vide a communique dated April 28, 2025, informed the general public that the President exercised his power of mercy provided for under Article 133 of the Constitution, also referred to as the pardon powers.

Specifically, the President let off 31 prisoners serving life sentences on conditional release, one foreign national of the East African partner state, remission and release to 25 individuals allowing for their discharge upon the remission of the unexpired portion of their custodial sentences, all petty offenders sentenced to six months or less and offenders serving sentences longer than six months but have remaining terms being six months or less.

It is important to note at this point that the communication assured the public that the full particulars of the pardon would be released to the public via a Gazette Notice.

Article 133 sets up the Power of Mercy Advisory Committee comprised of the Attorney General, the Cabinet Secretary responsible for correctional services; and at least five other members provided for by the Act, none of whom may be a State officer or in public service.

The mandate of the committee is to advise the President in the manner in which the President exercises this role. Article 133(3) and (4) then provides two key things—first that Parliament shall enact legislation providing for the criteria that the Advisory Committee shall apply in formulating its advice. Secondly, the Advisory Committee may take into account the views of the victims of the offence in respect of which it is considering making recommendations to the President.

Ultimately what the Constitution does is to ring-fence and circumscribe the power of pardon by the President and then guides the Advisory Committee on the manner in which they are to give advice to the President.

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This two-tier check is important because the Constitution grants such enormous powers that are at times compared to judicial powers to the President, although in reality they are not judicial powers since remission does not take away the offence committed at all. It merely deals with the sentence.

Put differently, a presidential pardon does not undo the conviction, it just provides for a shorter sentence for the offence committed and that informs the provision under Section 25(b) of the Power of Mercy Act which provides that a presidential pardon shall not be construed as an acquittal but this is not in issue in this piece.

Back on track, the legislation contemplated in Article 133 to guide the criteria of formulation of advice to the President is the Power of Mercy Act Cap 94 of the Laws of Kenya. It provides for the process of petitioning to be considered for pardon, hearing to consider the said petitions and the criteria applied to recommend for pardon.

In determining the admissibility of any petition, the committee may consider—whether the convicted criminal prisoner has served at least one-third of the sentence pronounced by a court; 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 other matter that the committee may consider necessary.

This is as per section 21 of the Act. It further provides that 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.

In cases where the offence is a felony, and there was a victim, the committee may determine whether to contact the victim and, once contacted, the victim shall present their views before the committee.

However, despite these elaborate constitutional and statutory obligations, in recent past, the President has merely provided for a Gazette Notice in regards to those pardoned and nothing more. This violates not just Article 10 of the Constitution on the principles of Accountability and Transparency but also the rights of victims to be heard under the Power of Mercy Act.

How are Kenyans to be sure that the same was ever conducted or that victims were ever called to be interviewed by the committee if a full report of the committee is not released to the public?

Both the President and the committee must be aware that in the current constitutional architecture, no public entity or officer under the Constitution can exercise any powers unless the same is justified.

In short, if you exercise certain powers and discretion as of this case, one must be able to show from where it flows. Once that test is met, we can then ask the question of whether you did exercise it in the manner provided for in the law.

In 2023, the President pardoned about 38 convicted persons, including the late former Kenya Medical Research Institute boss Davy Koech. At that time, like now, there was no report of the Advisory Committee known to the public as to the circumstances of the pardon of the 38. We do not know what the committee considered and whether it was in line with Section 22 of the Act.

The manner in which the President and the committee handled the pardon screams just one verdict when tested against tenets of constitutionalism—unconstitutional and of no consequence. The President and the committee have no two ways, just the rule of law.