- According to DPP Noordin Haji, plea bargains are not a shortcut to justice, but their aim is for the accused to enter into an agreement or plead guilty in exchange for some concessions by the prosecution.
- Plea bargaining is most often seen in the US justice system but is now being used with more frequency locally.
- Section 137 of the Criminal Procedure Code empowers the DPP’s office to make and or consider and accept plea bargain proposals from or on behalf of the accused.
Plea bargaining is gaining traction in Kenya, with the office of the Director of Public Prosecutions (DPP) entering into such agreements with an increasing number of accused persons as a way of speeding up the wheels of justice and promoting reconciliation among warring parties.
According to DPP Noordin Haji, plea bargains are not a shortcut to justice, but their aim is for the accused to enter into an agreement or plead guilty in exchange for some concessions by the prosecution.
This form of resolution is also useful in unlocking difficult cases, where some of the accused agree to give evidence that helps the prosecution in exchange for some concessions in their sentences.
Plea bargaining is most often seen in the US justice system but is now being used with more frequency locally.
“This may take the form of an offer of a guilty 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),” said Mr Haji.
The DPP says the purpose of plea bargaining is to narrow down the issues in a case, with a view to reaching a just outcome within the shortest possible time.
Section 137 of the Criminal Procedure Code empowers the DPP’s office to make and or consider and accept plea bargain proposals from or on behalf of the accused.
When she took office, Chief Justice Martha Koome also encouraged parties to explore plea bargaining as a way of reducing the case backlog at the Judiciary.
“I will engage other stakeholders at the National Council on the Administration of Justice to encourage the use of plea bargaining,” she said in August in a meeting with the principal and presiding judges of the High Court.
A plea agreement includes a compensation clause, and the victim or complainant and their legal representative sign an agreement that is binding once the court accepts it.
In 2018, the DPP entered into a plea agreement with several persons at Family Bank accused of money laundering over the lender’s role in the National Youth Service scandal.
In the deal, they pleaded guilty to six counts and the DPP’s office dropped three counts after the financial institution undertook to cooperate with the prosecution.
In another ongoing case, the DPP withdrew charges of attempted murder against directors of a Moroccan company OCP (K) that imported fertiliser alleged to contain excessive mercury.
Mr Haji also withdrew charges against a supervisor of Bollore Transport and Logistics Company, a clearing and forwarding firm, who was also facing charges together with former Kenya Bureau of Standards managing director Charles Ongwae and other government officials.
The parties also agreed to cooperate with the DPP “in the pursuit of justice” as they agreed to record their statements and supply the necessary supporting documentation, information and evidence to the investigating officer.
“The plea agreement is entered into freely, without coercion, duress, intimidation, promise or threats to any parties and shall be binding,” read part of the agreement signed by senior counsel Paul Muite and senior assistant DPP Alexander Muteti.
And as the DPP made the deal with the four together with OCP (K) to drop the charges, the parties also agreed to release the 65,000 bags of fertiliser, which was still being held at the company’s warehouse in Mombasa.
The four whose charges were dropped include Benson Oduor, a supervisor at Bollore Transport and Logistics, as well Malika Karama, Younes Addou, Karim Lofti, all directors of OCP-K Ltd. The company had also been charged and its charges were dropped following the deal.
Breach of trust
For others, however, the charges of attempted murder, abuse of office, commission of a felony and breach of trust will proceed.
They include Mr Ongwae, former director of quality control at Kebs Erick Kiptoo, Peter Kinyanjui, inspection manager at the Kilindini port and Pole Mwangemi.
In the ongoing graft case against former Treasury Cabinet secretary Henry Rotich, Mr Haji dropped charges against other co-accused senior officials former PSs Kamau Thugge and Susan Koech who agreed to join the prosecution side as witnesses.
Five more accused persons later entered into an agreement with the DPP, to be witnesses in the trial, in exchange for the dropping of their charges.
In yet a different case, former nominated Senator Joy Gwendo entered a plea agreement in a corruption case and Milimani chief magistrate Douglas Ogoti slapped her with a two-year jail term without the option of a fine. She had opted to plead guilty in December 2018 for stealing Sh1.7 million and abuse of office.
The former lawmaker, however, rushed to the High Court and Justice John Onyiego ordered her to pay a Sh600,000 fine or serve a one-year jail term.
Guidelines published by the DPP’s office show that the plea agreement may, however, be terminated by either party for reasons that include fraud, misrepresentation, and mistake of fact, concealment of material fact, death of the accused person and coercion or rejection by the court.
A plea bargain is initiated by the DPP or any other officer acting under his direction and in cases of great public interest, the DPP shall be consulted and appraised on plea agreement before commencement and during the negotiations.
When negotiating, the parties shall act openly, reasonably and fairly and in the interest of the administration of justice. During the negotiations, the accused person agrees voluntarily and without undue influence, coercion or misrepresentation of facts.
The accused person is informed of his or her right and that by entering the plea negotiations, he or she waives his or her right to a full trial and appeal, except as to the extent or legality of the sentence.
A full and accurate record of the plea negotiations is prepared and maintained and the agreement is placed before the court and the judicial officer reflects the matters agreed upon.
Nothing though stops the police from investigating the matter while negotiations are going on.