Should prisoner pardon be purely an executive decision?

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By Shadrack Muyesu

Where constitutions allow, presidential pardons have always been a subject of controversy. Part of this has been blamed on the unfettered discretion regimes afford their presidents in exercising this power, and the thinking that the power of pardon significantly encroaches into the domain of the Judiciary.

To highlight the extent of this discretion, the United States president has unlimited power to pardon any federal offence, which power can be exercised at any time and is not subject to judicial review or legislative control. This creates an unpredictable regime where one president can actively and consistently apply pardon while another, such as George Bush, legally passes uninterested.

Others have been accused of exploiting this power to their own advantage and at the expense of national security and human rights – a classic example being Bill Clinton whose pardon of among others, his brother, his former housing secretary, an old political friend, the son of his education secretary and an orchestrator of the biggest tax evasion scam in the nation’s history in Marc Rich, sparked national outrage. Clinton also represents a strain of former presidents notorious for issuing conditional pardons – an action which, according to experts, significantly erodes the constitutional rights and freedoms of the pardoned.

Unable to arrest this unpredictability through independent review, the regime relies on a personal accountability of the president for any problems arising from the pardons.
The situation is slightly different in the United Kingdom. While discretion is legitimized by the interpretation of a pardon – properly known as the Royal Prerogative of Mercy – as a people’s pardon, the power to exercise it is not absolute. It is exercised on ministerial advice. But, like the US, it remains immune to judicial review and is not restricted to time. The Crown also retains power to suspend or remit the whole or part of the sentence.

The Indian regime borrows heavily from England. More specifically, pardon can be extended to cases where sentencing has been by a court martial; where the punishment is for an offence against any law relating to a matter to which the executive powers of the Union extends, and cases where the sentence is death. The Executive also reserves authority to commute sentences and to change punishment.

In Kenya, pardon can be free or subject to conditions and is given on the evidence of the Advisory Committee on the Prerogative of Mercy. This committee is established under the Power of Mercy Act, 2011 to make recommendations on those to be pardoned by considering among others; the nature and seriousness of the offence; the length of the prison sentence; the age of the offender and his personal circumstances. To determine whether an offender qualifies for pardon, the Committee reviews his application against a report of fellow inmates, recommendations of State organs and parole officers. The final decision is however, made by the President and is not subject to challenge by any other body.

De facto, pardon is usually reserved for petty offences attracting jail terms of nine months or less, star class prisoners being 1st offenders with nine months or less to serve as at the stated date of amnesty, and ordinary class offenders being those serving nine months or less.  Felonies generally fall off the list.

The question lingers as to whether presidential pardon is a purely executive duty and therefore free from the need to adhere to rules of natural justice, or whether it is a quasi-judicial function that imposes a duty to act fairly. While opinion may be divided, the generally accepted position that presidential pardon powers are not subject to judicial review seemingly disposes it of the need to subscribe to procedural fairness.

While absolving presidential pardon off judicial review, the court in US vs. Wisconsin actually observed that to subject pardon to judicial review would be to intrude into executive power. It, however, noted that pardon must be exercised voluntarily i.e. it has to be accepted by the offender for it to be legal. If conditional, the offender also has to accept the terms and conditions. A similar position was adopted in Murphy vs. Ford where the prayer to review pardons on their merits and to a lesser extent the power to second-guess presidential exercise of discretion in granting the pardons was rejected. According to the court, no review should exist regardless of whether the President is offering a pardon on the information of domestic and international affairs or compassion. The disaffection of the electorate and a possible impeachment by the House were deemed enough.

Such as in the recent release of petty offenders to make room for serious economic crimes, does the President always act on the advice of the Committee? Perhaps not… But even then it is impossible to compel him to do so since the law doesn’t offer any recourse for failure apart from disaffection or impeachment.

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