Recently, key criminal justice players in Kenya, led by the Office of the Director of Public Prosecution (ODPP), pitched tents in Lamu County for a service week.
The intention of the state and non-state actors in this part of the All for Justice Project, which seeks to reduce case backlogs in courts and decongest prison population, was to dispense justice without delay but within the realm of the law.
They sought to put into use three “new” prosecutorial tools — plea bargaining, diversion policy and prosecutorial power on whether to charge or not.
The tools have either been in our laws but rarely used or practically used but lacked legal and policy backing. In a country with a prison population way above 200 per cent of capacity and a huge case backlog in the courts, 70 per cent of them petty offences, alternatives to prosecution must be considered.
Plea bargaining is a legal concept provided for in Section 137(A) to 137 (O) of the Criminal Procedure Code (CPC). The accused person or their legal representative mutually agree with the prosecution to bring a case to an end with the approval of the court. The deal, in writing in the form of a plea agreement, is then filed with the court.
It can be entered in all cases except sexual offences, crimes against humanity, war crimes and genocide. It includes murder and terrorism.
It allows an accused to plead guilty in exchange for a lesser charge — for instance, from murder to manslaughter — softer sentence or alternative charge. It is, therefore, not for the innocent.
But despite being a deal between the accused and the prosecution, the victim’s sentiment is considered, through victim impact assessment, as well as a recommendation of compensation and apology in certain instances.
This method can reduce case backlog since one waives their right to trial. It can also aid the fight against corruption, where the accused has the option of refunding the embezzled public funds for a lesser punishment.
And it can be crucial in terrorism- and drug-related cases as the lowest in the chain can provide information about their masters for leniency.
However, there is a need for rigorous sensitisation about the plea agreement. The public need to know that the accused are not cutting deals with prosecutors.
The victims’ and public interest must also be at the centre of it. Justice must be served to all.
The second tool is the diversion policy, introduced by the National Prosecution Policy (2015) as an alternative to criminal prosecution.
Is it not more effective to take a drug addict to a rehabilitation facility instead of prison? How helpful is it to jail a young person operating a business without a permit? Wouldn’t it be more useful if they were given two more days to get one? Why not escort someone without an ID to Huduma Centre to get one rather than jail them?
The police and, in some instances, prosecutors have previously used diversion. Rather than go through the entire formal judicial process, and with due considerations, prosecutors are encouraged to wave prosecution or discontinue proceedings either conditionally or unconditionally.
Diversion enhances quick conclusion of criminal matters while offering the accused, who accepts responsibility, a second chance to correct their mistakes and/or reform.
Lastly, prosecutors should be empowered enough to decide which cases to prosecute or not after clear consideration and due diligence.
It is of no use for a prosecutor to proceed with a case that has no evidence — at the expense of the court’s time and public resources.
These alternatives will not only reduce case backlog but also the agony of imprisonment. The public, if made aware of these “quick fix” legal processes, are likely to stop bribing to avoid the long and complex legal processes. Public resources and courts’ time will be saved as judicial officers concentrate on the more complex cases.
Kenya’s criminal justice system needs to uphold the spirit of the Constitution, which shifted from retributive to restorative justice. Both the prosecution and defence counsels, and paralegals must uphold these tools. The public should also be made aware of the availability of these alternatives and how they work.
Mr Muthuri is the legal aid manager at the African Prisons Project. firstname.lastname@example.org @MuthuriKathure