The calls to release people arrested for political violence are misplaced, to say the least. The amnesty calls were made last week at the peace rallies in the Rift Valley conducted by President Kibaki, Vice-President Kalonzo Musyoka and Prime Minister Raila Odinga.

To begin with, President Kibaki, to whom the calls were directed, has no powers to discontinue cases in court. And that is the way it should be. Otherwise, courts would become politicised and lose their independence, and we would all be left worse off.

President Kibaki can, of course, release accused persons but only after they have been convicted and sentenced. He can pardon anybody, at any time, after he or she has been convicted and sentenced. And he occasionally does so, for example on December 12 when he normally releases certain categories of prisoners to mark Independence Day. He can do so because he enjoys the prerogative of mercy provided for in the Constitution.

But he has no powers to intervene in court proceedings. As Justice, National Cohesion and Constitutional Affairs minister Martha Karua rightly pointed out last weekend, the due process of law cannot be stopped.

SOME OF THE PEOPLE ARRESTED in connection with post-election violence may be innocent, as Agriculture minister William Ruto said at a rally in Kipkelion. But that is a matter for the law to establish, not politics.

The law, in running its course, would normally, and as a matter of course, set free those who are innocent or the prosecution is unable to produce evidence that is acceptable to the court.

Apart from being misplaced, the calls for amnesty are insensitive, inappropriate, wrong and inexpedient. The calls amount to cheating justice. They also disregard the need for balance and atonement in dealing with the post-election trauma.

The social fabric in Rift Valley Province can only be restored if the life of the offender is not viewed to be more worthy than the life of the victim, and there is apparent atonement. In any case, a pardon is best granted by the victim, not decreed by politicians.

Genuine forgiveness, flowing from the victim, clears the offender's slate of crimes, maintains social balance and makes the social fabric whole again. Even under Christian religion, forgiveness is the result of atonement, not fiat, and a person forgiven of his sins is born again.

Apart from being misplaced, insensitive, inappropriate, wrong and inexpedient, those indiscriminate calls for amnesty are likely to promote the culture of impunity - that it is okay to kill, burn and destroy in the name of politics and ethnic affiliation because politicians will get you off the hook.

Those politicians in the Rift Valley who are calling for amnesty should, instead, commit themselves publicly to the respect and protection of the human rights of all citizens, regardless of their ethnic origins and political allegiance. They must not be seen to implicitly condone ethnic and political violence.

The law should be allowed to take its course. And the law is not always an ass. It provides for discontinuing cases that are trivial, an abuse of the court process, or for which there is no evidence to sustain a prosecution.

It also provides for the Attorney-General to step in to discontinue court cases in the public interest. The Constitution gives the AG powers to terminate any criminal prosecution, at any stage, before the court declares its judgment.

However, he does not share those powers with the President, or any of his colleagues in the Cabinet. That is why the calls for amnesty - if that means terminating cases already in court - should be made to the AG, not the President.

The Constitution is unequivocal. The AG alone decides whether to prosecute or not. The nolle prosequi (Latin for "we shall no longer prosecute") is a matter purely for the AG's discretion. It is a power vested in him to the exclusion of any other person or authority by section 26 of the Constitution.

BUT IT WOULD BE NAIVE FOR anybody to imagine that the AG does not consult in the exercise of his powers of nolle prosequi. As the first law officer, he decides when to prosecute and, where appropriate, not to prosecute.

But in high-profile cases or matters likely to have a political backlash or impact on public policy or interest, it is to be expected that he would consult and take into consideration the views of his Cabinet colleagues, including the President.

Still, the responsibility for the decision to prosecute or not rests with the AG and him alone. He can drop a prosecution if he thinks there is not enough evidence to maintain the prosecution, or the prosecution would not be in the public interest.

A nolle prosequi, where it is in the public interest, would be more appropriate in dealing with the post-election crimes than generalised amnesty.