Crime suspects who strike a deal to compensate their victims or become witnesses of the State may now be shielded from harsh sentences after the outgoing Attorney General Githu Muigai gazetted new rules.
Criminal Procedure (Plea Bargaining) Rules, 2018 allows a suspect to bargain with his accuser for a lesser charge upon satisfying the Director of Public Prosecutions (DPP) that justice will still be served.
Besides agreeing to become a State witness and compensate the victim, the plea agreement can be entered in occasions where the criminal agrees to a lesser offence and the prosecution withdraws other charges against him.
The accused, who must have an active case before the courts, in return pleads guilty to the offence, saving the prosecution and the Judiciary cash and time.
The compensation bit will be dropped if the parties fail to agree on the cash deal or when the prosecutor feels it will defeat justice.
“Where a plea agreement includes a clause for compensation payable to the victim by an accused person, the value or form of compensation shall be as agreed to after negotiations between the victim and the accused person and endorsed by the prosecutor if, in his or her opinion, the compensation serves the ends of justice,” the rules state in part.
A plea agreement, however, only becomes successful if the investigating officer is consulted, and interest of the accused and that of the community.
The plea-bargaining guidelines, whose draft was first done in July 2014, allows for the implementation of the nine-year old Criminal Procedure Code (Amendment) Act, 2008.
The court, however, retains the discretion to determine the sentence or penalty on the accused after agreeing to the Plea of Agreement.
Suspects facing charges relating to sexual offences, crimes of genocide, war crimes and crimes against humanity are, however, not eligible to enter into plea agreements.
A private prosecutor, under the rules, is required to write to the DPP 14 days before she enters into plea negotiations with the accused armed with supportive materials.
Where the plea negotiations are successful, the prosecutor is required to notify the DPP within seven days who, upon approval, may require the prosecutor to lay the case before the courts within a month.