POWER OF MERCY- CHALLENGES FOR BENEFICIARIES

What factors should be considered prior to release of an offender through the power of mercy?

•  Introduction. 

When offenders leave penal institutions on any ground, whether through completion of sentences or through power of mercy; they face important challenges. The following presentation focuses on important issues that should be considered when the Power of Mercy Advisory Committee (POMAC) considers petitions by offenders in penal institutions. 

•   Challenges:

1. 1. Certificate Of Good Conduct:

In Kenya, police clearance certificate also referred to as the certificate of good conduct issued by the Directorate of Criminal Investigations (DCI) is a very important document since it determines ones suitability to be employed and enjoyment of other important social, economic and political opportunities. The certificate is generated based on the past criminal records as determined by existence or non-existence of archived finger-print database. 

Lately, the certificate of good conduct has become a source of pain especially for people who may have come into conflict with the law despite interventions done by various actors including the Probation and Aftercare Services and Civil Society Organizations (CSOs).

Due to the growing concerns raised by the affected, it has thus emerged that there is a need to critically analyze the situation and come up with strategic actionable proposals that will ease the process of acquiring the certificate of good conduct devoid of unwarranted details obtained from the DCI database.

Background of good conduct certificate.

The history of police clearance certificate goes back to the colonial period when suspected offenders would have their fingerprints taken and archived by authorities. This was continued by the subsequent regimes in the post-colonial period whereby someone’s history in relation to conflict with the law could be archived and retrieved in case of any need. 

The certificate of good conduct has its basis on the premise of the constitution and other legal framework which governs the criminal justice system, especially the need to establish a previous conviction during sentencing. These include the Judicial Service Act and a raft of other policies such as sentencing policy, bail and bond policy, among others. The Judiciary works with other agencies that are guided by relevant statutes such as Penal Code, Probation of Offenders Act, Prison Act, and Kenya Police Service Act among others.

The Directorate of Criminal Investigations (DCI) under the National Police Service (NPS) keeps the historical data of past offenders; which is used to determine the entries to be made in the certificate of good conduct as indicated in section 55 of the National Police Service Act. Further, the National Police Service on their website inform the public that;

A certificate of good conduct means that the particular Kenyan holder has been searched in the criminal records of Kenya, and no criminal record has been traced. The validity of a certificate of good conduct is based on the information provided as from the date of issuance of the certificate.

Though acquiring a certificate of good conduct in Kenya has eased over the years, it still remains a challenge to many Kenyans. The matter is further complicated by the fact that if one has been in conflict with the law, the certificate captures the details of the offences committed. This makes it difficult for holders to acquire employment opportunities and other state and non-state social and economic opportunities whether they are released after the end of the sentence term or are beneficiaries of power of mercy. 

1. Lack of preparation for post penal interventions. 

Aside from the good conduct certified clearance, other challenges include; (i) restorative Justice and mediation taking in account the family, victim, community and offender, (iii) Mental health assessment of the offender at pre-release stage, (iv) offender rehabilitation and psychosocial support at pre-release and after prison (who follows up?) 

There have been cases where a person released through power of mercy faces challenges associated with stigma. The good intentions of POMAC are at times affected by such hostility and this promotes recidivism which further complicates the situation.

Post penal period is associated with great mental anguish because so much usually has changed during the period of incarceration. In the current set up, there is no follow up mechanism in place for those who leave penal institutions through POMAC. When pardon has been granted; there seems to be no legal basis to continue  such follow up. 

•  Impact of challenges on released offenders and need for interventions  through POMAC

The impact of the foregoing challenges can summarized as follows:

1. Exclusion-  A person who leaves a penal institution on POMAC or completion of sentence may be barred from holding important social and political positions either for decision making or representing subjects. This includes social and political positions in the society.  Such negates the impact of pardon and its intentions. The big question is; can a person who has been pardoned hold political offices or get jobs that require clearance by the department of criminal investigation?  

We hold that in as far as that certificate bears records of past offences even after pardon, or completion of a sentence it aggravates exclusion of the holder to fully achieve the intentions of pardon or any other decision arising through power of mercy. 

1. Discrimination- A person who holds a certificate with information which portrays a negative past character may suffer prejudice and therefore fail to capture employment opportunities, grants, business opportunities and academic privileges in certain contexts. This impacts more negatively for the rest of their lives, on the young people who might have had come into conflict with the law.

1. Stigma- A person whose identity is defined by negative past deeds may suffer prejudice on the basis that his past, whether he or she complied with judicial directives and or by mere fact that records held by the DCI indicate so, will stand as forever vindicated by society. This is because there is a lack of community awareness of the various reasons and circumstances under which a person can leave a penal institution.  This stigmatization negates the spirit of penal releases especially when done through power of mercy options. 

1. 1. Recidivism– With limited opportunities, it is possible that one might go back to crime so as to fend for him/herself and family or siblings.

• Nullification of power of mercy: Where a person has been released under power of mercy; the same appears to be an exercise in futility since the power of mercy does not address the issue of the archived data, post penal institution support (such as psychosocial support, addressing accommodation needs). The Power of Mercy Act no 21 of 2011 has no provision that addresses what happens when a person is released from a penal institution under power of mercy. In as far as there lacks defined post penal arrangement, release of an offender under power of mercy may appear a null exercise due to failure to achieve its important role of enabling the person to regain their civility.

• Recommendations to cure the identified challenges

Understanding that there is great need to support those who leave the penal institutions on completion of sentences or through power of mercy; we propose the following remedies:

1. There is a need to redefine the legal, policy and administrative circumstances under which a certificate of good conduct can be populated with past offences details. That while the original intent of certificate of good conduct is that of ensuring citizens abide to law and order, the same has the potential to achieve the exact opposite as many people issued with certificates reflecting their past offences whether petty or for which they served prison sentences continue to face the above mentioned challenges.  

Anyone leaving a penal institution has undergone some level of correction or intervention to correct the past wrongs.  Consequently, the  legal or policy framework;

1. Should define under what circumstances the good conduct certificate can be populated with past offences- should it be before conviction, during trial or after conviction. There are good certificates that contain past records even without a conviction in court.
2. Should define who should access the said information- whether it is for public safety reasons or for the sake of general knowledge. Should employers ask for a certificate of good conduct when all they could be interested in are competencies? 
3. Should classify the data held by DCI used to populate a good conduct certificate as protected data and therefore any person should have control on when to disclose the same if not it does not affect public safety. To aid proper reintegration, the past records should remain confidential and should only be disclosed in cases where public safety is at risk.
4. Should define what agencies should keep such data and for what reasons- preferably neutral agencies. The DCI is the one charged with prosecuting offences in court. Should they be the custodian of such private information and can the same affect their impartiality in serving the citizens. The policy/legal framework should provide for a neutral agency that can hold such information. 

1. In addition to the functions of the POMAC, there is a need to establish a prison pre-release throughcare checklist guide that would monitor client behavior and mental health prior to release. The establishment of the same will pave way for correctional agencies to validate the process of client reintegration. Ultimately, the gaps identified during client, shall be addressed appropriately and effectively during throughcare procedures. 
2. The POMAC should include non-state correctional agencies in the committee. In the corrections practice in Kenya, non-state actors have worked well with  correctional agencies in a complimentary manner in management of offenders in the penal institutions.  Their inclusion in the POMAC committee would bring the much needed complimentary support especially during the post penal release period. Such inclusion would provide a structure and system for the offender reintegration and management plan and to enhance the validation of the various criteria applied by the committee when making client recommendations from the list of considerations provided to the committee under Article 133 of the constitution
3. To facilitate the realization of these recommendations, we recommend the review of POMAC governance structure which needs to be as inclusive as possible to allow citizen participation in addressing the various gaps identified during the offender reintegration and also to allow the committee to be synced to the grassroot issues as the committee carries out its National mandate in the criminal Justice Sector. 

Conclusion

The release of an offender from a penal institution on pardon or recommendation under power of mercy begins a process in restorative justice. The process may be informed by the offender’s willingness to take responsibility for harm done to the victim or society and may provide opportunity for the parties directly affected by the crime – victims, offenders and communities to identify and address their needs in the aftermath of a crime. 

Penal release may also be proof that rehabilitation has taken place and a confirmation that the offenders being released into the society are reformed persons and hence the need to offer them all the necessary support. We submit that POMAC has the opportunity to accelerate these gains by adopting our recommendations. 

Signed and submitted by the following organizations:

1. Defenders Coalition
2. Faraja Foundation
3. Clean Start
4. HAKI Africa
5. Legal Resources Foundation
6. Kenya Human Rights Commission
7. Amnesty International – Kenya