In what appears to be a historic move by a single president of the United States of America, President Barack Obama has extended more pardons to convicts in the US judicial system than his predecessors, giving rise to criticism and applauds. Under the U.S Constitution, Art. II, Section 2, the president has powers to grant a pardon, commute a sentence or rescind a fine.
Despite the uproar on some pardons, a valid dispute is on what a pardon is, why it is given and who is entitled to it?
A pardon is where the state (figuratively through the leader) extends forgiveness to a convict wholly or partially for the offence committed. Because capital offences are deemed to be committed against the state and therefore prosecuted by it, the state has the prerogative through its leadership to extend any pardon to a convict. A pardon may be full or partial, conditional or unconditional. There is also a faultless pardon which is granted to a person convicted of an act that was not considered a crime at the time of his conviction.
In a pardon, the element of ‘remorse’ for one’s acts is crucial. In the public eye, it cannot be measured. Most leaders consider the nature of the crime/offence, the period spent in prison and the records of the convict’s behaviour while in prison.
In 2012 for instance, President Museveni pardoned Sharma Kooky who was convicted of murdering his wife. He had been sentenced to death but had at the time of his pardon, served 12 years for the crime. Whether or not he showed remorse; and whether or not the period served made up for his crime, the public could not infer but the pardon happened.
Sometimes, the pardon is an act of leniency extended for social justification like Tanzania’s president Magufuli’s pardon of more than 3000 convicts during the 52nd commemoration of the union between Tanganyika and Zanzibar to form Tanzania.
Similarly, public outcry may influence the president’s decision on leniency where it is confirmed that pardoning the convict is in the public’s interest than a judicial sanction.
Petty criminals may also receive pardon. In such a scenario, the convicts will have served a sentence as punishable by law although not for longer periods. President Uhuru Kenyatta pardoned about 7000 petty offenders in 2016: President Museveni pardoned taxi operators convicted or accused of committing petty crimes like theft, tax evasion, assault etc in 2016; President Magufuli exercised his in April 2016 to mostly prisoners above 70 years and the terminally ill.
Commuting a sentence
In commuting a sentence, the person authorised to do so reduces the sentence a convict should serve for his/her crime. The convict is still guilty of the crime he/she was convicted of but is allowed to serve a lesser duration or sentence. This type of pardon is seldom in East Africa and presidents Kenyatta, Museveni and Magufuli have on several occasions reduced the sentences of capital offenders. For example President Uhuru Kenyatta commuted the death sentences of more than 2700 convicts to life in prison. The last execution in Kenya was reported in 1987.
Commuting a sentence does not mean the convict is free. It only reduces his punishment which the law considers harsher and he or she is given a lesser one.
Rescinding a fine
For the pardon of rescinding a fine, the convict is forgiven of his debt he owes. The fine is cancelled.
Other terms crucial to a pardon include:
- Respite: Wikipedia defines ‘respite’ as ‘a delay in the imposition of sentence but in no way modifies a sentence or addresses questions of due process, guilt or innocence’. Black’s Law dictionary, the lawyers’ dictionary, defines it as ‘a period of temporary delay; an extension of time or a temporary suspension of a death sentence’. Given the nature of its meaning, ‘respite’ as a pardon does not in any way alter an act already done but merely gives the judicial authority adequate time to study the case and give an appropriate decision before any sentencing is done.
- Amnesty: Amnesty defined by Black’s Law dictionary is ‘a pardon extended by the government to a group or class of persons usually for a political offence’. It further gives an alternative definition as, ‘the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted’.
Treason, military insurrections and armed conflicts, coup d’états, sedition (no longer a crime in Ugandan law) fall under this category. They are like political pardons. President Barack Obama’s pardon of Chelsea Manning (former US soldier) and Oscar Lopez Rivera (former Puerto Rican guerilla leader in a failed military uprising in the U.S) is an example of a political pardon.
Art. 121 of Uganda’s constitution, Art.133 of Kenya’s constitution and Art.45 of Tanzania’s constitution illustrate the authority a president may invoke to ‘alter’ the cause after a legal process i.e. exercise the ‘prerogative of mercy’, ‘power of mercy’ and ‘prerogative of mercy’, respectively.
In Uganda, the president through his respective constitutional powers is vested with a privilege to extend mercy to any person convicted of an offence. He however exercises this privilege after receiving advice from an advisory committee consisting of the Attorney General and six prominent citizens appointed by him.
Kenya’s law dictates that the president acts on advice from the Attorney General, the Cabinet secretary responsible for correctional services and five non-state officers.
Tanzania’s constitution left the procedure to be regulated by the parliament but the sole decision vests in the president.
Pardons, if conducted justly;
- Show the importance of laws as correctional instead of punitive avenues. Assuming that cases are handled professionally, jail sentences depict a reformative process. Where a punishment is intended to restore unity, pardons seem viable options for reconciliation.
- Foster peace through amnesty. Official pardons encourage many conflicting parties to seek peaceful means of settling disputes rather than chaos.
However, factors like abuse of power mar the good intentions of official pardons, creating public disarray when done without justification.
Also a president who is subject to another judicial/legal process limiting his powers cannot exercisie this privilege. In the U.S, for instance, an ‘impeached’ president cannot exercise the prerogative of mercy because he, too, is subject to a legal process that limits his mandate to offer pardon to another.
Many convicts make formal requests to the president for pardon, stating reasons for but most importantly, showing remorse for their crimes/offences. When a president receives these requests, it is important that he exhausts the facts in the case so as not to offend the victims of the acts by the convicts.
Like in his response to requests from Prince John Katuramu, president Museveni defended his silent position on the matter saying that he would grant a pardon to the convicted Tooro prince once his family and the victim’s agreed. The prince, convicted of murdering another prince Happy Kijjanangoma of Tooro, has his freedom dependent on that condition.
Today, what appeared to be an academic matter became norm for most presidents. It is not surprising that President Barack Obama ends his second term with more pardons than alarm for how his successor’s leadership will cruise for the next four years.
To Barack Obama,
BY ATUHAIRWE AGRACE
This article appears in our weekly digital law magazine, The Deuteronomy Vol 1, Issue 3 of January 20th, 2017
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