The guilty plea by the Akasha brothers involving the drug related charges has sent shivers across the nation and the world as a whole: The United States does not negotiate with drug dealers. it has been reported that top officials in the government have been implicated as a result of the Akasha’s plea.
The brothers were in 2017 charged with six counts after extradition to the USA. Four of the charges were drug related as they involved supply of heroin and methamphetamine in the United States. The fifth charge related to use of machine guns and destructive devices in furtherance of their objective and the sixth charge related to drug trafficking.
The Drug Enforcement Agency and the Prosecution build such a strong case against the brothers and in order to avoid the full trial, the brothers entered into a plea deal with the prosecution.
The practice by the United States has exposed how plea deals can be used to ensure prosecution of cases. The prosecution in Kenya can utilize plea bargains to deal with suspected criminals. But before we explore how this can be effective, it is important to understand what a plea bargain is.
What is a Plea deal/bargain?
According to the Legal Dictionary it is an agreement between the Defendant and the Prosecution, in which the former agrees to plead guilty in exchange for reduction of severity of the charges, dismissal of some charges or sometimes the disclosure of information by the Defendant. This information can be used to advance the Prosecution’s case.
The prosecution (the State) enters into an agreement with the accused person in which he accepts some of the offences he committed in exchange for some leniency.
Therefore, this means that the prosecution (the State) enters into an agreement with the accused person in which he accepts some of the offences he committed in exchange for some leniency. It is a practice that is prevalent in the United States. Kenyan law has provisions for plea bargain under the Criminal Procedure Code
Under Section 137A, a prosecutor and an accused person may negotiate and enter into an agreement for reduction of the charge to a lesser included offence, withdrawal of charge, stay of charges or promise not to proceed with other charges. It then stipulates the various procedures to be followed by the prosecution such as consulting with the police officer investigating the case, having regard to the circumstances of the case and affording the victim the right to make representations concerning the agreement. Under section 137F, the plea agreement has to be recorded in court. Here, the accused person is informed about the implications of the deal.
In addition, the DPP is mandated to make rules on plea bargaining. This has been actualized through the Criminal Procedure (Plea Bargaining)Rules 2018. They contain specific provisions concerning the procedures to be followed when it comes to plea bargaining.
Indeed, the law has made adequate provisions when it comes to plea bargaining. Then this begs the next question, how can they be utilized in Kenya?
Utilization in Kenya.
The Country has been involved in a vicious war against corruption, drugs, murder among many other things. The public has been treated to an array of arrests of prominent politicians, top government officials among others.
There was a rumor doing rounds in social media that corrupt people used to hide on Friday to avoid the embarrassment caused by the arrests. Well, the arrests can be seen as good progress, nevertheless, the accused persons have to go for a full trial before their fate can be established. The fact that somebody has been arrested does not mean that he is guilty. The trial process takes time and, in most cases, people are acquitted on avoidable grounds such as lack of evidence.
The fact that somebody has been arrested does not mean that he is guilty.
Therefore, to avoid these kinds of scenarios, the Director of Public Prosecutions can employ plea bargains so as to ensure a guaranteed conviction. This can be done by turning some or one of the Defendants into a state witness in which he or she shall provide information implicating the others against corruption. Indeed, the Magistrate in the NYS case case has encouraged the use of plea bargains to ensure the prompt conclusion of the case.
This method cannot be employed alone but rather, it also involves the combination of other factors such as cooperation among the various stakeholders, adequate financing of the institutions, building strong cases among others. This will ensure that those implicated in major graft allegations are convicted thus serving as a deterrence. In addition, plea bargains ensure that there is no need for trial, thus saving money and resources. Plea bargains may seem lucrative but they have attracted a lot of criticism.
This method cannot be employed alone but rather, it also involves the combination of other factors such as cooperation among the various stakeholders, adequate financing of the institutions, building strong cases among others.
Criticism of plea bargain.
Remember, the concept of plea bargains involves a compromise between two parties. The Prosecution agrees to drop charges and the accused person pleads guilty. This notion has been critiqued as violating key rights of the accused person in relation to a fair trial. This right has several underpinnings. They include, the right to be presumed innocent until proven guilty; to adduce and challenge evidence; right to appeal among others. When one signs a deal, he is presumed guilty, he cannot challenge the evidence being used against him and forfeits the right to appeal.
When one signs a deal, he is presumed guilty, he cannot challenge the evidence being used against him and forfeits the right to appeal.
Nonetheless, where the prosecution has built a strong case with a high rate of conviction and the accused person has a lawyer and has reviewed the evidence, the accused person cannot cry foul. Similarly, this concept has been a success in the United States and if employed in Kenya, it can go a long way to ensure a high win rate for the prosecution.
Where the prosecution has built a strong case with a high rate of conviction and the accused person has a lawyer and has reviewed the evidence, the accused person cannot cry foul.
For example, the Mueller investigation in the United States investigating alleged campaign finance violations by the Trump campaign has employed this idea. Recently, Paul Manafort, signed a deal in which five of the seven charges against him were dropped, and in exchange, he was to cooperate with Mueller. Legal experts have noted that this is not going to end well for Mr. Trump.
Kenya operates on the principle of separation of powers between the executive, judiciary and the legislature. It is upon all agencies to cooperate to ensure that crime is eradicated. The executive has done its part by arresting the corrupt individuals. It is up to the judiciary to ensure that there is a conviction if there is overwhelming evidence against the accused persons. Likewise, for a judge to acquit or convict, that is dependent on the evidence presented to him. Then if proper evidence is not collected, plea bargains are not used, we will then hear another acquittal and blame games will begin.
If plea bargains are not applied, we will continue pirouetting to the jingles of apprehensions, mortifications and then exonerations.
As the president noted, after a challenge from a student ,that he wants his legacy to be based on the fact that he left a cohesive society and the country shall have won the war against corruption. Correspondingly, if plea bargains are not applied, we will continue pirouetting to the jingles of apprehensions, mortifications and then exonerations.
*Image Credits, The Economist*