The (outgoing) President of the United States pardons his son who has been convicted of two significant crimes, though not yet sentenced.
The US Constitution says simply the President “shall have Power to grant Reprieves and Pardons for Offences against the United States...”
Biden argues that the process had been unfair anyway because Hunter Biden had been prosecuted only because he is his son.
COULD IT HAPPEN HERE?
The Kenyan constitution drafters certainly tried to stop anything like this from happening.
In theory, the whole criminal justice system is insulated from interference by politicians or indeed by anyone outside the justice system.
A general principle is also relevant: a state officer (covering all elected officials, executive members and a host of senior appointees) must always behave in a way that avoids “any conflict between personal interests and public or official duties” (Article 75 ).
I return to this pardon issue later. AN OVERVIEW The vision in the constitution is of a criminal justice system with a series of institutions that exercise their functions purely on the basis of their professional knowledge, experience and judgement, and in accordance with constitutional values.
A key concept is independence: they must act without pressure from, especially, the government and political interests.
Ways to, supposedly, ensure this include the method of appointment, protection from dismissal except for very serious reasons, sometimes a limit on the term of office, to avoid the officer settling into too cosy a relationship, and sometimes financial security for the institution.
A criminal case begins most often with the police. It is clear that government is not supposed to tell the police how to do its job, especially how to deal with any particular case.
The police no longer prosecute cases – to ensure that a balanced and sound judgement is made about which cases should go to court.
That decision is made by the Office of the Director of Public Prosecutions, and that office also takes the cases to court.
The DPP is also to be independent of government. Another organisation may also be a major source of cases for court – the Ethics and Anti-corruption commission.
As an independent commission it again must not take directions from government. And again it investigates but cannot prosecute – it simply sends files to the ODPP which decides whether to prosecute.
The independence of the Judiciary is something that is much discussed – these other agencies less so. It is the independent Judiciary that decides on the guilt or innocence of those who are tried.
And if a person is sentenced to prison or some other form of detention, the responsible organisation is Correctional Services. They are, however, not mentioned in the constitution.
The final stage of the criminal process is the possible change in sentence administratively not by the courts.
THE POLICE - A CLOSER LOOK
In South Africa the President appoints the head of the police; here the same is true but Parliament must approve.
However, we all know how ineffective parliamentary approval has been as a way of ensuring the people’s voice in appointments – or any voice but that of the President.
Many staff are appointed by the “independent” National Police Service Commission, which is responsible for discipline of police also.
The Inspector General of Police serves only four years and may not easily be dismissed though no process is laid down and the President personally dismisses.
Originally the National Police Service Act laid down procedures for appointment and dismissal of the IGP, but these were removed in 2014.
A court felt unable to interfere. The South African Act does lay down a formal process for removal. Our president has no guidance – nor constraint.
The IGP is to exercise “independent command”, though the Cabinet Secretary Interior may give general directions on policy.
The South African Constitution is similar but envisages “a policy” developed by the Prosecuting Authority (not the ministry) and a draft national policing policy was indeed recently prepared, with objectives including “the posture, philosophy and doctrine of policing in a democratic state” as well as improving capacity, effectiveness and efficiency of policing services.
I am not sure we have any equivalent policy. Despite the law, it is striking how often Kenyan government members speak as though they can tell the police what to do.
Partly it is a matter of trying to show they are in charge and can actually stop crime.
However, it sometimes seems that they genuinely do not understand the limits on their power to control the police – and that the police also do not believe it.
In reality it seems that presidents can with impunity ensure major reshaping of the police top hierarchy, as Ruto did soon after he took office.
THE DPP – A CLOSER LOOK
A DPP, not under the control of the Attorney General, or anyone, was an important innovation of the constitution.
The DPP is chosen by the President but must be approved by the National Assembly, must not be directed or controlled by anyone else, and serve for a single term of eight years.
He or she can only be removed for incompetence or serious misbehaviour through the PSC and by an elaborate procedure.
The DPP can direct the IGP to investigate any particular alleged criminal conduct. But because the DPP is independent he or she should not be acting on behalf of government in giving those directions.
The directions must be in writing – as must those of the CS to the police.
From a webinar last Monday from the University of the Western Cape I learned (among a good deal else) that research shows that a legal framework protecting independence is no guarantee that officeholders will act independently.
This is clear here. Corruption, subservience, hope of personal advantage all work to undermine the constitutional demand of independence of these various agencies.
Ultimately I believe that the best, maybe only, guarantee of independence lies with the office holders who are supposed to be independent.
If they don’t believe in it, it is dead. Presidents can undermine it. President Uhuru gave his DPP a nice, political job not long before his appointment as DPP was to expire.
President Ruto appointed the next DPP to head the NIS two years before his DPP appointment ended.
What’s the lesson for future appointees as DPP? Please the president while in office and you may get a plum job. The ODPP is a crucial element in the enforcement of our criminal law.
The Chief Justice of South Africa said that an army of prosecutors is needed to clear up the consequences of state capture mess.
We need an army, too, but in 2020-21 the office had a theoretical establishment of 2276 but actual staff of 1,105. A South African commentator complained that their National Prosecuting Authority had merely 6,000 personnel. That country has a population of about 60 million – not so much more Kenya.
FINALLY Back to the President. Article 133 is more restricted than the US constitution; it says “…the President may exercise a power of mercy in accordance with the advice of the Advisory Committee [on the power of mercy].”
“In accordance with the advice of” means the advice must be followed.
The AG and CS are members of the committee but five others are not state officers nor in the public service.
In 2022-23 the President pardoned 40 prisoners on the committee’s recommendation. Clearly our president should not emulate President Biden if the occasion arose.
Of course our doubt must be whether such a case would ever get to trial in Kenya.
The most perfect language in a
constitution will have no effect if
those in charge do not believe in it.
