Plea bargaining occurs when an accused person reaches an agreement with the prosecution to forego his right to a full criminal trial by pleading guilty to an offence (s) in exchange for a concession by the prosecution. In Kenya, plea bargaining is anchored in Section 137A-O of the Criminal Procedure Code (CAP 75) and the Plea Bargaining Rules. It is also worth taking into account the Plea Bargaining Rules, Guidelines published by the Office of the Director of Public Prosecutions (ODPP) which are aimed at promoting accountability and transparency by officers of the Office of the Director of Public Prosecutions (ODPP.
Section 137 (A) (3) of Criminal Procedure Code provides that a plea agreement shall be entered into only after an accused person has been charged, or at any time before judgment is entered.
Procedure for realizing a Plea Bargaining Agreement
• Initiation; discussions on plea agreements may be initiated by; a prosecutor; or (b) an accused person or his legal representative. The court is prohibited from participating in the negotiation between a prosecutor and an accused person or his legal representative. However, Section 137C (2) stipulates that the Court ought to be notified of the discussion.
• Plea agreement negotiation; this initial stage allows the prosecution and an accused person or the accused person’s representative to commence negotiations. The negotiations are geared towards (a) reduction of a charge to a lesser included offence; (b) withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges; and (c) payment by an accused person of any restitution or compensation.
• Consultation with the victim; the place of a victim in the criminal justice system cannot be understated and it is for that reason that the Section 137D of the Criminal Procedure Code places a mandatory requirement that a prosecutor shall enter into a plea bargaining agreement (a) after consultation with the police officer investigating the case; (b) pay due regard to the nature of and the circumstances relating to the offence, the personal circumstances of the accused person and the interests of the community; and after granting the accused person to make representations (if any) regarding the terms of the agreement.
• The agreement; A plea agreement shall be in writing, reviewed and accepted by the accused person, explained to the accused person in a language that he understands, be signed by the prosecutor and the accused person or his legal representative; signed by the complainant if a has been included in the agreement.
• Before the court records the plea agreement; Once an agreement has is reached between the prosecutor and the accused person or his legal representative, the agreement has to be presented to the trial court for purposes of determining;
a) Whether the accused person understands inter alia; (a) he has the right to be presumed innocent until proven guilty; they have a right to remain silent and not to testify during the proceedings; that by accepting the plea agreement, the accused person is waiving his right to a full trial; the prosecution’s right, in the case of prosecution for perjury or false statement, to use against the accused any statement that the accused gives in the agreement. Section 137F of the Criminal Procedure Code.
b) Whether the accused person was competent at the time of entering into the agreement and whether they were of sound mind and acted without coercion or duress.
• Acceptance of the plea agreement by the Court; once is satisfied of the above, it shall record the agreement and the same shall become binding upon the prosecutor and the accused and form part of the record of the court.
• Rejection of plea agreement; Section 137J of the Criminal Procedure Code gives the Court the power to reject a plea agreement. Of note is that once a plea agreement is rejected by the Court, no further plea negotiation can be held relating to the same facts and no party shall appeal against, or apply for a review of, the order of the court rejecting the agreement.
Not all offences can attract the option of engagement between the prosecutor and the accused person or his legal representative with the aim of entering into a Plea Bargaining Agreement. Section 137N of the Criminal Procedure Code provides that an accused person of offences under the Sexual Offences Act, offences of genocide, war crimes and crimes against humanity cannot exercise the option to engage in plea bargaining with the prosecution.
One would not be faulted to raise concerns about the practice of plea bargaining in Kenya’s criminal justice system, the impact it has on the victims or the rights of an accused person. However, it should be acknowledged the strain in Kenya’s judicial system Kenya requires an innovative solution to be employed by the prosecution, the accused person and the Courts. The plea bargaining system if properly used in strict adherence to the rights of the victims and the accused person can be one way to resolve disputes efficiently while at the same time ensuring that justice is served.
This write-up is for informational purposes only and should not be construed as a legal opinion. If you have any queries or need clarifications, please do not hesitate to contact Gregory Makambo, Partner, (gmakambo@makambolaw.com), Diana M. Kimiti, (dkimiti@makambolaw.com) or your usual contact at our firm, for legal advice.