The special Law Commission on the development of legislation on sentencing guidelines has recommended that the there should be review on an act of grace, proceeding from the power entrusted with the President on inmates as it lacks detail.
The commission also that the prerogative which is based on the exercise by the president lack transparency making the granting of pardon susceptible to abuse.
Briefing the media on the Development of Legislation on Sentencing Guidelines at Sunbird Capital Hotel in Lilongwe, Special Law Commission Chairperson Justice of appeal Edward Twea SC said there have been occasions when the use of presidential power of pardon has been criticised.
“Since the granting of pardon is one way in which the administration of a lawful sentence is interfered with, there is need to ensure that when it is done, it should be done in a transparent and procedural manner so that the public does not lose trust in the criminal justice system.
“Therefore, the commission recommends that the Advisory Committee on the Granting of Pardons Act be repealed and replaced with more detailed legislation,” he said.
Cases which depicts the abuse of presidential pardons are that of Shabir Suleman who had been sentenced to five years’ imprisonment in 2003 after being convicted of attempting to bribe a judge of High Court but was released in 2004.
In 2012, prisoners at Zomba Maximum Prison rioted after the president granted pardon to a number of them, including a man convicted of rape whom it was alleged was related to the Head of State and a British citizen sentenced to 12 years’ imprisonment for sexually abusing three boys.
“We also recommend that any person who commits an offence that causes public harm or a sense of moral should not be eligible for pardon, regardless of whether technically the offence may or may not be grades as a serious office. This is because it is in respect of such offences that public anger is stirred whenever perpetrators are pardoned,” said Twea.
Some of the offences, according to the commission are rape, defilement, indecent assault of a child, abduction which is is a felony, trafficking in children and persons, trading in body parts, being found in possession of human body parts and the by public servant among others.
Twea said that where the relied sought and granted in a petition for the exercise of power of pardon is a pardon under section 89 (2) (a) of the constitution, the pardon should not be construed as an acquittal.
The Special Law Commission was constituted to develop a legislation on Sentencing guidelines following the inconsistencies and disparities that have marred the criminal justice system.
Law Commissioner Gertrude Hiwa explained that ‘sentence’ is the term of imprisonment imposed on an offender and that “sentence remains the pinnacle of the justice process which attracts public interest.”
She said the new legislation has a balance of the state, the offender, the victim and the community.
Hiwa added, “although the sentencing process might be technical, there is nothing technical about the pain felt by a victim of an offence, the grief and sense of injustice felt by an offender who has been handed a harsh sentence, nor indeed the anger of the community which feels the criminal justice system is not protecting them from crime.”
And Justice Twea noted that sentencing in Malawi has over the years been marred by issues of inconsistencies and disparities of sentence among others.
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