PART 3

Executive Powers

Executive authority of Government of Kenya.

23.  (1)  The executive authority of the Government of Kenya shall vest in the President and, subject to this Constitution, may be exercised by him either directly or through officers subordinate to him.

(2)   Nothing in this section shall prevent Parliament from conferring functions on persons or authorities other than the President.

Constitution of offices.

24.  Subject to this Constitution and any other law, the powers of constituting and abolishing offices for the Republic of Kenya, of making appointments to any such office and terminating any such appointment, shall vest in the President.

Tenure of office in the service of the Republic.

25.  (1)   Save in so far as may be otherwise provided by this Constitution or by any other law, every person who holds office in the service of the Republic of Kenya shall hold that office during the pleasure of the President:

Provided that his subsection shall not apply in the case of a person who enters into a contract of service in writing with the Government of Kenya by which he undertakes to serve the Government for a period which does not exceed three years.

(2)   In this section “office in the service of the Republic of Kenya” means office in or membership of the public service, the armed forces of the Republic, the National Youth Service or any other force or service established for the Republic of Kenya.

Attorney-General

26.  (1) There shall be an Attorney-General whose office shall be an office in the public service.

(2)   The Attorney-General shall be the principal legal adviser to the Government of Kenya.

(3)   The Attorney-General shall have power in any case in which he considers it desirable so to do:-

(a)    to institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person;

(b)    to take over and continue any such criminal proceedings that have been instituted or undertaken by another person or authority; and

(c)    to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by himself or another person or authority.

(4)   The Attorney-General may require the Commissioner of Police to investigate any matter which, in the Attorney-General’s opinion, relates to any offence or alleged offence or suspected offence, and the Commissioner shall comply with that requirement and shall report to the Attorney-General upon the investigation.

(5)   The powers of the Attorney-General under subsections (3) and (4) may be exercised by him in person or by officers subordinate to him acting in accordance with his general or special instructions.

(6)   The powers conferred on the Attorney-General by paragraphs (b) and (c) of subsection (3) shall be vested in him to the exclusion of any other person or authority:

Provided that where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with the leave of the court.

(7)   For the purposes of this section, an appeal from a judgement in criminal proceedings before any court, or a question of law reserved for the purpose of those proceedings to any other court, shall be deemed to be part of those proceedings:

Provided that the power conferred on the Attorney-General by subsection (3) (c) shall not be exercised in relation to an appeal by a person convicted in criminal proceedings or to a question of law reserved at the instance of such a person.

(8)   In the exercise of the functions vested in him by subsection (3) and (4) of this section and by sections 44 and 55, the Attorney-General shall not be subject to the direction or control of any other person or authority.

Prerogative of mercy.

14 of 1975, s. 2.

Cap. 7.

27.  The President may:-

(a)    grant a person convicted of an offence a pardon, either free or subject to lawful conditions;

(b)    grant to a person a respite, either indefinite or for a specified period, of the execution of a punishment imposed on that person for an offence;

(c)    substitute a less severe form of punishment for a punishment imposed on a person for an offence;

(d)    remit the whole or part of a punishment imposed on a person for an offence or of a penalty or forfeiture otherwise due to the Republic on account of an offence; and

(e)    remove in whole or in part the non-qualification or the disqualification of a person, arising out of or in consequence of the report of an election court under the provisions of the National Assembly and Presidential Elections Act, from registration as an elector on a register of electors or from nomination for election as an elected member of the National Assembly.

Advisory Committee on Prerogative of Mercy.

28.  (1) There shall be an Advisory Committee on the Prerogative of Mercy which shall consist of:-

(a)   the Attorney-General; and

(b)   not less than three nor more than five other members appointed by the President, of whom at least one shall be a Minister and at least one shall be a person qualified to practice in Kenya as a medical practitioner.

(2)   A member of the Committee appointed under subsection (1) (b) shall hold his seat thereon for such period as may be specified in the instrument by which he was appointed:

Provided that his seat shall become vacant:-

(i)                 in the case of a person who at the date of his appointment was a Minister, if he cases to be a Minister; or

(ii)               in any case, if the President in writing so directs.

(3)   The Committee may act notwithstanding a vacancy in its membership and its proceedings shall not be invalidated by the presence or participation of a person not entitled to be present at or to participate in its proceedings.

(4)   The Committee may regulate its own procedure.

Functions of Advisory Committee on Prerogative of Mercy.

29.  (1) Where a person has been sentenced to death (otherwise than by a court-martial) for an offence, the President shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as he may require, to be considered at a meeting of the Advisory Committee on the Prerogative of Mercy; and after obtaining the advice of the Committee he shall decide in his own judgement whether to exercise any of his functions under section 27.

(2)   The President may consult with the Committee before deciding whether to exercise any of his functions under section 27 in a case not falling within subsection (1), but he shall not be obliged to act in accordance with the advice of the Committee.