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“Starting Where the Law Finishes”: An Analysis of the Prerogative of Mercy in Sierra Leone

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“Starting Where the Law Finishes”: An Analysis of the Prerogative of Mercy in Sierra Leone

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By Signe Roelsgaard

In August 2016, Rebecca Agliolo – a Law Student at the University of Cambridge – volunteered remotely for AdvocAid.

One of the outcomes was an interesting analysis of “the Prerogative of Mercy”, which offers offenders the opportunity of retrospective pardon.

Prerogative of Mercy: Background

Lapses of the criminal justice system are inevitable in even the most exacting of legal systems. Whether through lack of information, violation of civil rights or human fallibility, occasionally innocent individuals are erroneously convicted of a crime.

In most situations, cases are appealed through the judicial system. However, where due process has been exhausted, the Prerogative of Mercy provides an extra-judicial remedy. Perhaps this is why the Prerogative of Mercy is said to “start where the law finishes”. 

The prerogative traces its origins to the British tradition, as a form of retrospective mercy offered by the monarch.

Today a discretionary power typically vested in either the monarch or head of state, the Prerogative of Mercy functions to ameliorate the harshness of sentencing or alleviate miscarriages of justice; most commonly, an offender may be pardoned, or have his sentence commuted.

In Sierra Leone, the purpose of the Prerogative of Mercy is divorced from its typical function in historical and international contexts. The President may grant a ‘Presidential Pardon’, which is exercised twice a year: on New Year and on Sierra Leone’s Independence Day.

The Presidential Pardon is seen to be a gesture of goodwill and celebration.

However, the legal and political backdrop of the Presidential Pardon is not entirely a cause for celebration.

In this article I shall first outline the typical functioning of the Prerogative of Mercy in the Commonwealth jurisdictions of Canada and Britain in order to provide a basis for comparison.

Following this, I shall explore the legal basis of the prerogative in Sierra Leone, followed by recent case studies of its application, and finally conclude with criticisms of the current law and recommendations for its reform.

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