• This is a negotiated agreement between a criminal accused and a prosecutor.
• In this case, the accused agrees to voluntarily plead guilty or no contest for a concession from a prosecutor in exchange for a plea.
Image: FILE
It is not every criminal case that should be prosecuted to finality through a trial if it can be resolved by alternative means.
These were the words of Director Public Prosecutions Noordin Haji in regards to plea bargaining during a recent workshop in Mombasa.
“What is important is that justice is done in each case and as far as is possible, all parties are dealt with fairly and equitably,” he adds.
He adds that considering that in some cases remandees remain in prison custody during court proceedings, it is important that stakeholders embrace creative provisions in law to decongest the prisons.
“If properly employed, plea bargaining will serve as an important, useful and effective tool to keep the wheels of justice moving in a timely and cost-effective manner,” he says.
But what exactly is plea bargaining?
This is a negotiated agreement between a criminal accused and a prosecutor. In this case, the accused agrees to voluntarily plead guilty or no contest for a concession from a prosecutor in exchange for a plea.
“This may take the form of an offer of a plea by the accused to some but not all the charges, a different offence or less serious charge or to one of the multiple charges or agreement to testify against some or other of the accused person(s),” Haji says.
However, the accused cannot just cave into the prosecutor. He or she has the right to know the procedures, the gains and the guidelines of the plea before bargaining.
The purpose of the Plea Bargaining Guidelines is to ensure decisions on alternative means of disposing of a case by the public to whom the prosecutor is accountable.
The process of plea bargaining may be cut short by the prosecution if they find out that some material facts have been concealed or misrepresented by the accused person with the intention of misleading the plea negotiations.
But, in some instances, the process may end if the accused withdraws their plea of guilty or if the court rejects the plea agreement.
‘Kenya, US situation’
According to the United States Department of Justice Tomica Patterson, plea bargain has greatly helped to speed up the justice system in America.
She says, for instance, 97 per cent of all federal cases are being handled through the plea bargain.
“The high number of cases being handled through bargains has enabled the country to resolve cases without the use of much resources,” she says during the workshop.
Unlike Kenya where Sexual offences cannot be subjected to plea bargain, in the US she says there is no limitation on the cases that can be subjected to this process.
“This results in many cases not being resolved quickly and this then drags cases in most cases,” she says.
In 2020, the Ministry of Health said it received reports of at least 5,000 sexual violence cases across the country, 65 per cent of them involving girls younger than 18, many of whom live in poverty.
Officials say in many cases the perpetrators are close to the victims and do not believe the abuse is a crime.
Patterson says that having good data on the criminal history of suspects is very key in plea bargain.
“Plea bargain can be done at any stage of a case but must be before the judgement stage. We can actually negotiate with a suspect before they are arrested,” she says.
If you look at the plea bargaining laws, the US and Kenya are still similar. For example in both scenarios, you negotiate with the prosecutor and the court is the mutual gatekeeper.
‘Anytime’
In Kenya, Plea Bargaining is guided by Section 137 A - O of the Criminal Procedure Code and the Criminal Procedure (Plea Bargaining) Rules, 2018.
Before negotiating a plea agreement, the prosecutor is required to ensure that the accused is informed of the right to a full trial before a court of law.
Image: Star
The prosecutor is also required to ensure that there is sufficient evidence to support a conviction and that it is in the public interest.
United Nations Office on Drugs and Crime (UNODC) in UK Shamini Jayanathan, says plea bargain can also be done any time, even before a trial starts or even when a case is ongoing.
She says every criminal offence has its own ingredients. The prosecutor will show the ingredients before a decision to charge is reached.
In 2019, Haji called for a full rollout of plea bargaining as a tool for decongesting the criminal justice system.
Plea bargaining will ensure speedy resolution of cases and reduce congestion in prisons, he said.
He said the huge case backlogs in courts and lengthy litigation will be effectively addressed when the new system is given priority, especially in economic crime cases.