Our politicians have gone deep into the amnesty debate based on one yet unproved assumption: that there are youths in police custody. Although Government Spokesman Alfred Mutua has stated that there are only 302 cases pending in court, and no other person is in custody, the presumption on both sides of the political divide is that there are persons regarding whom the amnesty debate relates.

According to Konoin MP, Dr. Julius Kones, more than 1000 youths are still in custody and have not been charged. Apart from Dr. Mutua, no one else has been categorical in denying that there are youths in custody. The responses that have come to ODM’s claims have dealt only with the propriety of granting amnesty. Dr. Kones has not revealed the names of the police stations in which these youths are being held. Nor has he revealed any other location in which the youths may be in custody. So where are they?

At first glance, it would seem that the positions of Dr. Kones and Dr. Mutua are irreconcilable. But it is possible that both are telling the truth. That is, there are over 1000 youths missing as Dr. Kones says, but they are not in police custody as Dr. Mutua says. They possibly never were in police custody as alleged. To come up with a possible reconciliation of these two positions, let us consider the circumstances.

It is not denied that youths in some parts of the country came out to demonstrate after the disputed elections. It is not denied that some of them engaged in murder, rape, arson and displacement of people. It is not denied that some came up against law enforcement agencies. It is reasonable to assume that these agencies did use force, reasonable and unreasonable, to prevent the crimes. It is, therefore, also reasonable to suppose that many youths were shot dead.

Secondly, it is not denied that more than 1,500 people died and more than 300,000 were displaced. It is not denied that some of the demonstrating youths carried out murder and displacement. It is not denied that the victims, in many instances, attempted to resist. It is therefore reasonable to assume that many of these assailants died from the attempts of their victims to defend themselves.

If the above two scenarios are plausible, then it is quite reasonable to state that both Dr. Kones and Dr. Mutua are telling the truth, only that each is addressing a part of the whole issue. The missing part is that these youths are not detained by police or anyone. They are possibly dead and their bodies may be lying in the post-election killing fields.

Possibly, therefore, we need to address this matter first and foremost before we go further in the amnesty debate. Are there youths to whom the question of amnesty relates? And where are they currently? What are their names and for what crime are they being detained? Or are they dead as my hypothesis states? Only after ascertaining these facts does the amnesty debate arise. For if they are dead, we should be holding a totally different debate.

A second mistake we are making is to assume that the President, or the Cabinet of ministers, have the power to grant amnesty. The truth is that neither the President nor the Cabinet has such powers. The powers of the President regarding the grant of amnesty are found in Section 27 of the Constitution. These powers are known as “The Prerogative Mercy”. The powers are exercised exclusively by the President. He cannot delegate them ask someone to exercise them on his behalf. He may follow the advice of the “Advisory Committee on Prerogative of Mercy”, but he is not bound to any person or any consideration in exercising these powers.

Secondly, the President can only exercise these powers in regard to “a person convicted of an offence.” He cannot use these powers in regard to “a person convicted of an offence.” He cannot use these powers to save someone suspected of having committed an offence or facing a trial before a court of law.

About amnesty, the President is powerless. He can only act once the “youths” have been tried and convicted. The only person who can grant amnesty at this juncture is the Attorney-General. The AG’s office has the powers of prosecution. He may “institute and undertake, take over and continue or discontinue “any criminal proceedings.

In our current circumstances therefore, only the Attorney-General can rule out a prosecution. He can direct the Commissioner of Police to stop investigating the “youths”. He can order that his office shall not institute and undertake any prosecution of the “youths”. He can also discontinue any current criminal proceedings relating to any “youths”. The powers of the Attorney-General in this regard are not subject to any control. Though he is generally required to act in the public interest, Section 26 states that in the exercise of these powers, he “shall not be subject to the direction or control of any person or authority.” Neither the President nor the Cabinet can direct the Attorney-General to grant amnesty.

The amnesty debate therefore, if the youths are actually alive and in custody, lies with the Office of the Attorney-General. It is Mr. Amos Wako who will have to decide on the fate of these “youths”. And if he decides that the prosecution continue, then the debate will have to wait until the “youths” are convicted or acquitted. Only when they have been convicted can the debate be addressed by the President.