198. Generally however, a Clemency power is used in a situation where the President believes that the public welfare will be better served by the pardon, or to people who have served part of their sentences and lived within the law, or a belief that a sentence was excessive or unjust or again for personal circumstances that warrant compassion. In all these situations, the President exercises a near absolute discretion. 199. The reason the framers of national constitutions vest this broad power in the executive branch is to ensure that the President would have the freedom to do what he/she deems to be the right thing. In Ex Parte Garland,72 the US Supreme Court characterized the scope of Executive Clemency thus: the clemency power thus conferred is unlimited, with the exception (in the case of impeachment). It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgement. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restriction 200. Over the years however, this strict interpretation of Clemency powers have been the subject of considerable scrutiny by international human rights bodies and legal scholars. It is generally believed that the single most important factor in the proliferation and continuation of human rights violations is the persistence of impunity, be it of a de jure or de facto nature. Clemency, it is believed, encourages de jure as well as de facto impunity and leaves the victims without just compensation and effective remedy. De jure impunity generally arises where legislation provides indemnity from legal process in respect of acts to be committed in a particular context or exemption from legal responsibility in respect of acts that have in the past been committed, for example, as in the present case, by way of clemency (amnesty or pardon). De facto impunity occurs where those committing the acts in question are in practice insulated from the normal operation of the legal system. That seems to be the situation with the present case. 201. There has been consistent international jurisprudence suggesting that the prohibition of amnesties leading to impunity for serious human rights has become a rule of customary international law. In a report entitled "Question of the impunity of perpetrators of human rights violations (civil and political)", prepared by Mr. Louis Joinet for the Sub-commission on Prevention of Discrimination and Protection of Minorities, pursuant to Sub-commission decision 1996/119, it was noted that "amnesty cannot be accorded to perpetrators of violations before the victims have obtained justice by means of an effective remedy" and that "the right to justice entails obligations for the State: to investigate violations, to prosecute the perpetrators and, if their guilt is established, to punish them".73 202. In his report, Mr. Joinet drafted a set of principles for the protection and promotion of human rights through action to combat impunity, in which he stated that "there can be no just and lasting reconciliation unless the need for justice is effectively justified" and that "national and international measures must be taken ... with a view to securing jointly, in the interests of the victims of human rights violations, observance of the right to know and, by implication, the right to the truth, the right to justice and the right to reparation, without which there can be no effective remedy against the pernicious effects of impunity". The Report went on to state that "even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within certain bounds, namely: (a) the perpetrators of serious crimes under international law may not benefit from such measures until such time as the State has met their obligations to investigate violations, to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that they are prosecuted, tried and duly punished, to provide victims with effective remedies and reparation for the injuries suffered, and to take acts to prevent the recurrence of such atrocities."74 203. In its General Comment No. 20 on Article 7 of the ICCPR, the UN Human Rights Committee noted that "amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible".75 In the case of Hugo Rodríguez v. Uruguay,76 the Committee reaffirmed its position that amnesties for gross violations of human rights are incompatible with the obligations of the State party under the Covenant and expressed concern that in adopting the amnesty law in question, the State party contributed to an atmosphere of impunity which may undermine the democratic order and give rise to further human rights violations. The 1993 Vienna Declaration and Programme of Action supports this stand and stipulates that "States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law".77 26