Article 133 of the Constitution of Kenya, 2010 establishes the Power of Mercy Advisory Committee (POMAC). This Article is operationalized through the Power of Mercy Act, 2011. Prior to the provisions of Article 133 of the Constitution, the prerogative of mercy was anchored under Sections 46, 48 and 49 of the Prisons Act (Cap 90) which dealt with all matters pertaining to Presidential pardon or clemency, remission and parole for convicted criminal offenders.
Article 133 of the Constitution and the Power of Mercy Act, 2011 give the Committee an expanded mandate to carry out its functions without interference from any quarters since, the said provisions consolidated all matters dealing with pardon or clemency, remission and parole for convicted criminal offenders under the Committee. The functions of the Committee include undertaking or commissioning research on areas of its jurisdiction, carrying out public education and awareness to inmates and the public in general on the exercise of the Power of Mercy, carrying out investigations, partnering with state and non-state actors and undertaking any other such activities for the better discharge of its functions. In order for the Committee to discharge its functions effectively and efficiently, it has been further empowered to determine its own procedures, receive written or oral statements, establish subcommittees, and co-opt persons into its sub-committees who have the required knowledge and expertise. In particular, the Committee is also, not bound by the strict rules of evidence and conducts mandatory interviews of the individuals on whose behalf the petition has been made.
On the petition of any person, the President may exercise a Power of Mercy in accordance with the advice of the Committee established under Article 133 of the Constitution by:
- granting a free or conditional pardon to a person convicted of an offence;
- postponing the carrying out of a punishment, either for a specified or indefinite period;
- substituting a less severe form of punishment; or
- remitting all or part of a punishment.
In addition to advising the president on the exercise of the power of mercy, the Committee has the following functions:
- undertake or commission research and collect data on matters relating to the power of mercy;
- work with State organs responsible for correctional services to educate persons in correctional facilities on the power of mercy and procedures relating to applications for its exercise;
- carry out any necessary investigations required to make a determination on a petition for power of mercy;
- partner with State and non-state actors to educate the public on the nature and implications of the power of mercy;
- undertake such other activities as may be necessary for the discharge of its functions and the exercise of its powers; and
- carry out any other function as may be conferred on it under any other written law
In the execution of its functions, the Committee has all powers necessary under the legal framework:
- to determine its procedure
- where appropriate, receive written or oral statements
- to establish sub-committees
- co-opt into its sub-committees persons whose knowledge and expertise it requires
- is not bound by the strict rules of evidence
- conduct interviews of the individuals on whose behalf a petition is made