Power of Mercy Act

The short title of the Act is "Power of Mercy Act."

Section 2 provides interpretations: it states that, unless context requires otherwise, the Act defines a set of terms (for example "acquittal", "Cabinet Secretary", "committee", "convicted criminal prisoner", "correctional facility", "court", "felony", "member", "misdemeanour", "panel", "pardon", "pardon officer", "petitioner", "power of mercy", "prisoner", "prison officer", and "victim").

This Act governs all matters related to a petition for the exercise of the President's power of mercy under Article 133 of the Constitution.

The President and Committee must, when performing functions and exercising powers under the Constitution and this Act, act in accordance with Article 47(1) of the Constitution and be guided by the values and principles in Article 10 of the Constitution.

Appointment principles must have regard to the ethnic and regional diversity of the people of Kenya.

Members and the secretary of the Committee must, before assuming office and before the Chief Registrar, make and subscribe the oath or affirmation in the First Schedule.

The chairperson must convene the Committee's first meeting within seven days of members' appointment so the members can elect a vice-chairperson; the chairperson and vice-chairperson must not be of the same gender.

Members of the Committee (except the Attorney-General and Cabinet Secretary) serve a single five-year term and may not be re-appointed; the President must publish any resignation, vacancy or termination in the Gazette within fourteen days.

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

The Committee has powers to carry out its functions, may set procedure, establish sub-committees and co-opt members, must receive statements and conduct interviews, and is not bound by strict rules of evidence.

The office of the President must provide secretariat services to the Committee; there must be a secretary to the Committee who is a public officer nominated by the Public Service Commission through a competitive process and appointed by the President.

The Cabinet Secretary must appoint pardon officers by notice in the Gazette; those pardon officers must be public officers seconded to the Committee and stationed at correctional facilities as prescribed.

The Committee may regulate its own procedure, may invite people to meetings (but invited persons have no vote), and the Committee's business is governed by the Second Schedule.

Section 5 sets the Committee's composition (members appointed under Article 133(2)(a) and (b) and seven other members), names the Attorney-General as chairperson, and requires the members under section 5(1)(b) to serve part-time.

Qualification for appointment: is a citizen of Kenya

Lists circumstances that disqualify a person from appointment as a member, including political party governing-body membership, undischarged bankruptcy, conviction with imprisonment over six months without option of a fine, mental incapacity, and removal from public office; notes an exception that a person who has fully served such a sentence is not disqualified.

Section 8 sets out who composes the panel, requires the Office of the President to provide secretariat services, requires vacancies to be filled within seven days by the nominating body, and sets the quorum at five members.

Sets a procedure: once the panel is constituted it must, within seven days, advertise in at least two national daily newspapers to invite applications; the panel must consider, shortlist, publish shortlisted and qualified applicants, hold public interviews, and recommend ten persons to the President; the President must, within seven days of receipt, by Gazette notice appoint seven members from the recommended persons.

Any person may petition the President, through the Committee, to exercise the power of mercy and grant relief, subject to the Constitution and this Act; eligibility conditions set out in Section 19(2)(a)–(b).

The Cabinet Secretary and Committee must ensure that the relevant forms and information are supplied to all correctional facilities.

Section 21 assigns the Committee powers to determine admissibility of petitions, call for and review evidence (including interviews and investigations), receive reports, and make recommendations to the President; the Cabinet Secretary must publish hearing venues/times; victims notified may make representations.

The Committee must apply the listed criteria (Section 22(1)(a)–(l) and Section 22(2)(a)–(b)) when considering a petition for the exercise of the power of mercy.

The President must decide on Committee recommendations within sixty days; the Committee must notify petitioners in writing within seven days of the President’s decision and must publish approved petitions in the Gazette within twenty-one days; the President’s decision is final.

A person may re-petition once on new grounds after a previous petition was rejected, by petitioning the President through the Committee; the Committee must consider the re-petition, and if satisfied that reasonable facts are raised, inform the petitioner and require filing in the prescribed manner.

The chairperson may require any person holding judicial records of a convicted person who received a pardon to deliver those records to the Committee.

The Office of the President must bear the Committee's expenses; members of the Committee may be paid allowances determined by the Cabinet Secretary (finance) in consultation with the Salaries and Remuneration Commission.

Committee members with a direct or indirect personal interest must disclose it; such members must not be present or participate on that matter. Members, staff, and their family must not transact business with the Committee. Contraventions are offences punishable by fine or imprisonment.

Committee recommendations follow the opinion of the majority of members reviewing a petition; if members are equally divided, a recommendation to grant the relief sought is treated as affirmed.

The Committee must prepare an annual report for each financial year, submit it to the President and Parliament within three months after the end of that year, and cause it to be published in the Gazette and other manner the Committee determines.

Proceedings against the Committee are treated as proceedings against the Government and are subject to the Government Proceedings Act (Cap. 40).

Members of the Committee are protected from personal liability for acts done in good faith in executing the Committee's functions, powers or duties.

The Committee must publish and publicize important information within its mandate; requests for information may be addressed to the chairperson or a designated person and may require a reasonable fee; some information may be kept confidential or withheld if disclosure is undesirable or the information is at a deliberative stage; members and staff assigned to the Committee must sign confidentiality agreements.

A person who contravenes this Act commits an offence and on conviction may be punished by a fine up to one million shillings, imprisonment up to five years, or both.

The Cabinet Secretary must, subject to the Third Schedule and in consultation with the Committee, prescribe forms for filing petitions and relevant notices under this Act.

The Cabinet Secretary may make regulations to implement this Act, including specified topics; the Committee retains its power to make orders to secure justice or prevent abuse.

The provisions of section 29(2) of the Sixth Schedule to the Constitution apply to the appointment of the members of the panel and of the Committee.