The Presidential Power of Mercy in Kenya: Legal Framework, Public Understanding and Accountability Issues

Abstract

The confusion surrounding the release of Joseph Irungu Maina has illustrated the need to seriously relook Kenya’s presidential power of mercy. There was a great public confusion especially on social media accounts as many believed that the notorious “Jowie” had been granted clemency. This incident highlights a broader concern about the transparency and fairness of the clemency process in cases involving serious crimes like corruption and sexual offenses. Sexual Offenses against children do not allow for diversion but the law via its blanket application and provisions permit’s them to be considered for presidential pardon. This paper examines the legal framework governing the presidential power of mercy with a focus on the role of the advisory committee. Despite the law’s mandatory language, the use of the word “shall” in relation to public hearings and victim consultations, there is no clear evidence that these provisions are being followed in practice. It is clear that they are just honoured in breach. This paper seeks to explore how the failure to ensure transparency and victim involvement by the advisory committee affects public trust in the clemency process. The aim is to assess the gaps in Kenya’s legal framework for granting clemency, particularly in serious crime cases and propose reforms to ensure the process is transparent, accountable and just. This will restore public confidence in the justice system and ensure that the power of mercy is used ethically and consistently in relation to clemency.