The Ombudsman’s decision to file a Constitutional application in court against the Head of State, was for the court to provide a guideline on the applications of any requests of pardon made to the President.
According to Ombudsman, Hamlison Bulu, the case concerns the process and exercise of power by the Head of State on pardoning.
“It is not a personal matter against the Head of State. But it concerns the exercise of power and the process,” he clarified.
The Chief Justice had struck out the constitutional case this week.
According to Ombudsman Bulu, when the matter went before the court, the court's decision was that the Ombudsman has no standing, to take this matter to the court.
He explained; “The Ombudsman must show the court that it had its rights under the Constitution, which have been infringed, so it has this standing, to take the matter before the court.
“As far as I understand, based on this decision, the court made its ruling, that it would not entertain the application submitted by the Ombudsman.”
Bulu agreed that any matter that concerns the state is not a minor matter. It is an important and serious matter, and there are standards to follow, to ensure that the decisions made are the right decisions.
Article 38 of the Constitution gives power to the President to make its decisions, in relation to pardoning of people who have imprisonment sentences.
The Ombudsman is concerned that the only power existed now is under the Constitution. The President has power under the Constitution, and with any power, there are usually guidelines to assist decision makers to make their decisions.
“In this matter, unfortunately, although, Article 38 states that Parliament may provide for a committee to advise the President in the exercise of power, unfortunately, it has not happened yet.”
The Ombudsman’s concern on this aspect is how a clear guideline on how a request for pardon reaches the Head of State for him to deal with it.
The President’s power under Article 38, on anyone wanting the president to consider an application to pardon a sentence is clear, but, under what guidelines, is not known.
“It is also clear that the Ombudsman cannot enquire into the conduct of the Head of State. Whatever decision the President makes, the Ombudsman cannot enquire on the conduct.
“The Head of State is the highest institution. With the court decision, it now leaves a gap, as how to protect the process to Head of State for him to consider applications for pardoning.
“There are no guidelines to consider which considerations are relevant and those that cannot be taken on-board to make decisions to agree and pardon or disapprove the pardoning of that particular person."