The Power of Mercy Bill, 2025

Background

The Power of Mercy Bill, 2025 seeks to give effect to Article 133 of the Constitution of Kenya, which outlines the presidential Power of Mercy. It establishes a comprehensive structure to replace the repealed Power of Mercy Act (Cap. 94), setting clear guidelines, procedures, and institutional frameworks to handle petitions for presidential pardons, sentence remissions, and the rehabilitation and reintegration of reformed offenders.

Key Amendments

The Bill makes widespread consequential amendments to several statutes to align them with the new power of mercy framework:

• Criminal Procedure Code (Cap. 75): Updates procedures regarding mental health inquiries and findings of 'not guilty by reason of mental incapacitation,' allowing courts to order detention in mental health facilities for up to 90 days.
• Penal Code (Cap. 63): Restricts the passing of death sentences on individuals who committed offences while under eighteen years of age. It also specifies the burden of proof regarding criminal responsibility.
• Prisons Act (Cap. 90): Applies mental health detention provisions (Section 15A of the Mental Health Act) to prisoners whose terms of imprisonment have expired.
• Kenya Defence Forces Act (Cap. 199): Harmonizes court-martial special findings with mental health facility detention order procedures under the Mental Health Offenders Review Committee.
• Mutual Legal Assistance Act (Cap. 75A): Incorporates eligibility for release on remission pursuant to the Power of Mercy Act.
• Victim Protection Act (Cap. 79A): Incorporates the role of the Power of Mercy Advisory Committee on the pardon of offenders.
• National Police Service Act (Cap. 84): Enhances record-keeping functions to include retrieving and sealing criminal records of pardoned offenders.

New Obligations

• Advisory Committee Qualifications: Appointed members must be Kenyan citizens holding at least a university degree and 15 years of post-qualification experience in designated fields (law, psychiatry, human rights, public administration, or correction science).
• Petition Eligibility & Process: Petitioners must apply in the prescribed form. Offenders on probation, serving a suspended sentence, or with pending judicial remedies are ineligible.
• Sealing Records: The Directorate of Criminal Investigations and custodians of criminal records are obligated to seal the records of pardoned individuals, keeping them separate from standard databases unless the individual re-offends.
• Record Keeping & Data Collection: The Committee is obligated to securely maintain individual files for each petitioner and publish annual statistics on the number of petitions received, hearings held, and decisions made.

Penalties

• Conflict of Interest: Any member or staff of the Advisory Committee who fails to disclose a direct or indirect personal interest in a matter under consideration commits an offence. Upon conviction, they face a fine not exceeding KSh 1 million, imprisonment for up to 10 years, or both (Clause 18).
• General Penalty: Any person who contravenes the provisions of the Act for which no specific penalty is provided is liable on conviction to a fine not exceeding KSh 1 million, imprisonment for up to five years, or both (Clause 50).

Transitional Provisions

• Staff of Former Institution: Staff and officers of the former Power of Mercy Advisory Committee Secretariat who were in service immediately before the commencement of this Act are given an option to serve in the new Advisory Committee or be redeployed in the Public Service within three years.
• Contracts and Assets: All rights, obligations, contracts, assets, liabilities, and funds of the former institution are transferred to and vested in the new Advisory Committee.
• Pending Proceedings: Any petitions or proceedings pending before the former institution, a tribunal, or a court immediately before the commencement date will continue as if instituted under the new Act.