The plea bargain has become one of the most sought after routes to justice in Kenya, with accused persons in criminal cases exploring this option to speed up their cases.
One of the notable cases in which the route could be taken is that of Naftali Kinuthia, the prime suspect in the murder of Moi University medical student Ivy Wangechi. Last week, Mr Kinuthia applied for a plea bargain with Director of Pubic Prosecution Noordin Haji.
Another notable case is that of the theft of Sh8 billion at the National Youth Service (NYS).
In March, Mr Haji said he was mulling negotiating a plea bargain with five banks and their officials in connection with the case.
This means officials of the five banks, including chief executive officers implicated in failing to follow proper procedures that resulted in aiding the loss of the funds, may not go to jail, after all.
Mr Haji and Ethics and Anti-Corruption Commission (EACC) boss Twlib Mbarak back the plea bargain but maintain it is not a shortcut to justice.
But what is plea bargain and what does it entail?
In a plea bargain, the defendant agrees to plead guilty to one or more charges — often lesser than one for which they could stand trial, in exchange for a more lenient sentence.
In this arrangement, certain related charges may be dropped or dismissed.
For plea negotiations to be entered into, a number of factors come into play.
These include the seriousness of the alleged crime, strength of the evidence in the case presented to court and prospects of a guilty verdict at trial.
So, why is plea bargain important to the accused person, the court system and the prosecutors?
According to FindLaw, an online legal information resource, negotiated pleas are used in resolving the vast majority of criminal cases in the world.
Across the world, plea bargains are encouraged by the judicial systems owing to overburdened criminal court calendars.
Justice delayed is justice denied, it is said.
When an accused person pleads, the matter is concluded faster, paving the way for other cases to be determined.
Plea bargains are also cheaper and less gruelling to execute than trials.
A crowded calendar is a concern for a prosecutor, especially when a judicial system is grappling with budgetary constraints.
Additionally, plea bargains allow prosecutors to protect their witnesses, some of whom may have criminal records which could potentially collapse cases.
In some parts of the world, prisons are so overcrowded that incarcerating more people would further stretch resources.
In other cases, accused persons without ‘‘a vigorous legal defence may plead out regardless of their actual guilt’’, according to FindLaw.
How a plea bargain is initiated
According to a 2019 guidelines manual published by the DPP’s office, the prosecutor (in a case), the accused person, the legal representative of the accused person or any other party of the accused person’s choice may initiate plea negotiations.
In cases involving minors, parents, guardians or a children’s officer may initiate the process.
“The plea agreement is entered into freely, without coercion, duress, intimidation, promise or threats to any parties and shall be binding,” reads the agreement signed by Senior Counsel Paul Muite and senior assistant DPP Alexander Muteti.
When negotiating for pleas, the parties are required ‘‘to act openly, reasonably and fairly and in the interest of the administration of justice’’.
The accused person "agrees voluntarily and without undue influence, coercion or misrepresentation of facts".
The guidelines also require that 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 sentence".
In a plea bargain, the victim/complainant of his or her legal representative is required to sign the agreement.
Once the court accepts the agreement, it becomes binding.
Nothing, however, stop police from investigating the matter while negotiations are ongoing.
In cases of great public interest, the DPP shall be consulted and appraised on a plea agreement before the start and during the negotiations.
Withdrawal of a plea bargain
A plea bargain can be withdrawn if the accused person is found to have breached the agreement of what was negotiated.
Fraud, misrepresentation, concealment of material facts relating to the matter and coercion could all result in cancellation of the bargain.
Other factors include death of the accused person, withdrawal of the plea by the defence or its rejection by the court.
According to Mr Haji’s office, the plea bargain has for a long time been part of Kenya’s criminal justice system "in theory", and its applicability has been "poorly utilised".
That said, has this method of justice dispensation worked in Kenya before and how popular is it?
A number of cases in Kenya have been resolved through the plea bargain.
In 2018, Mr Haji entered into a plea agreement with several managers at Family Bank accused of money laundering over the bank’s role in the NYS scandal.
In the deal, the bank pleaded guilty to six counts and the DPP’s office dropped three counts after the financial institution undertook to cooperate.
In May, Mr Haji withdrew charges of attempted murder against directors of a Moroccan company that imported fertiliser alleged to contain excessive mercury.
He also withdrew charges against a supervisor of Bollore Transport and Logistics, a clearing and forwarding company, who was also facing charges alongside former Kenya Bureau of Standards Managing Director Charles Ongwae and other government officials.
The four whose charges were dropped were Mr Benson Oduor a supervisor at Bollore; and Malika Karama, Younes Addou, Mr Karim Lofti, all directors of OCP-K Limited.
The charges against the company were also dropped following the deal.
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, a former director of quality control at Kebs; Mr Erick Kiptoo; Mr Peter Kinyanjui, the Inspection manager at the Kilindini Port; Mr Pole Mwangemi, the coast regional manager; and Mr Erick Kariuki, the Kilindini Port health officer.
The parties also agreed to cooperate with the DPP “in the pursuit of justice”, record statements and supply supporting documentation, information and evidence to the investigating officer.