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"id": 195160,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/195160/?format=api",
"text_counter": 141,
"type": "speech",
"speaker_name": "Mr. Wako",
"speaker_title": "The Attorney-General",
"speaker": {
"id": 208,
"legal_name": "Sylvester Wakoli Bifwoli",
"slug": "wakoli-bifwoli"
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"content": " Mr. Speaker, Sir, I beg to move that The Criminal Procedure Code (Amendment) Bill be now read a Second Time. This is yet another Bill which tries to reform our penal laws and procedures to comply with the international standards relating to the conduct of the criminal justice system. It may be recalled that in the 1990s, I set up a task force on penal laws and procedures, which was chaired by Justice Luttah and which made many recommendations. This House debated those recommendations under the Criminal Law (Amendment) Bill, which introduced noble ideas such as taking into account the right of the victim of the crime in the hearing and in the passing of sentences of those May 6, 2008 PARLIAMENTARY DEBATES 837 who have been found guilty of an offence under our laws. Mr. Speaker, Sir, there were also noble ideas such as giving the court hearing a criminal case the ability to assess the damages in an assault case which can be payable to the victim and actually ordering compensation such as doing away with corporal punishment, which is now regarded, internationally, as cruel and inhuman. This also includes rationalising the sentence in sexual offences. Mr. Speaker, Sir, although that was a one-time task force which was appointed, there is need for a continuous review and reform of criminal laws. This need is of paramount importance to the efficient and effective administration of the criminal justice system. Mr. Speaker, Sir, lto give focus to this important task, and taking into consideration the significance of incorporating practical experience in making recommendations on the reform of our laws, I have set up a Standing Committee on Law Reform relating to the criminal justice system under the Department of the Director of Public Prosecutions. This Committee will, on an on-going basis, take into account the experiences they are encountering in court on the issue of prosecution, take into account the experiences that the police are having on the issue of criminal investigations and so on. They will be making recommendations to this House. In fact, the first version of such recommendations was passed by this National Assembly under the Criminal Law (Amendment) Act of 2007. Mr. Speaker, Sir, it in this regard that the Standing Committee made recommendations that the law should provide a proper legal framework for plea-bargaining, otherwise the system was prone to abuse. Plea-bargaining, as we understand it, is the hallmark of many criminal justice systems. In Kenya, which comes under the common law system, plea-bargaining has, up to now, been made in a very informal way, where the prosecutor discusses with the accused person, or his or her advocate, a bargain over the plea; for example, they may say: \"This is a murder case, but the facts of the matter show that it is a manslaughter\". If the accused person is prepared to plead guilty to a manslaughter case, they may bargain and it is reduced to manslaughter, so that the accused person pleads guilty to manslaughter and thereby saves the court a lot of time on the hearing of the case, which would in any event have ended up proving a manslaughter case. So, this has been done on a very informal basis. But it is important. Mr. Speaker, Sir, in the United States of America (USA), it is estimated that over 90 per cent of cases are settled through plea agreements between the prosecuting attorney and the defendant. It is important to note that, although America comes under the common law system, they have since moved forward and made plea-bargaining part of their written statutes. In the USA, under Rule 2 of the Federal Rules of Criminal Procedure, the legal framework for plea-bargaining is provided for. This is what we are now trying to do in this Bill, which is before you. We want to move plea-bargaining from an informal process to a more transparent process, which follows certain procedures before we can arrive at it. Mr. Speaker, Sir, as I stated earlier, this is an informal process, and it normally comes at the stage when a plea is being taken before the court. Mr. Speaker, Sir, there are many advantages to plea- bargaining. I will quote a few. (i) Plea-bargaining promotes the acknowledgement of guilt and willingness to assume responsibility on the part of the accused person. (ii) Plea-bargaining, by its very nature, involves concessions by both the accused and the prosecuting person. These concessions save the court a lot of time. As you know, right now, our courts are breaking down under a backlog of very many cases, many of which could be plea- bargained, people punished, and the time of the court set free. (iii) As a result of plea-bargaining, it has been proved elsewhere that even the sentence that is imposed becomes not just a punishment of the accused person, but a rehabilitative and 838 PARLIAMENTARY DEBATES May 6, 2008 informative process by the accused person acknowledging his guilt and by meting out a sentence appropriate to what he or she has pleaded guilty to. (iv) Plea-bargaining also helps in the administration, particularly in cases where, for example, through plea-bargaining you may get the accused person to make a full statement and disclosure of not only himself or herself, but also of all the people who may have been involved in a particular crime. Therefore, it assists in getting all the culprits before a court of law. When they come before a court of law, there is sufficient evidence because of the plea-bargaining that may have been done by a few people, and they are convicted. (v) Plea-bargaining also reduces the cost of administration of justice, not only to the advantage of the State, but also to the advantage of the accused persons. (vi) Plea-bargaining also reduces the number of appeals that normally clog our system. Mr. Speaker, Sir, for the Standing Committee, there is no doubt whatsoever that plea- bargaining is an essential complement to the administration of justice system anywhere in the world and in Kenya. The Standing Committee, in undertaking this exercise, examined how the plea-bargaining processes are undertaken in a number of countries. They particularly examined the plea-bargaining process in the USA, South Africa, India, the United Kingdom (UK), Australia, Canada and in our neighbouring countries. Certain principles stand out when you examine the system in all these countries. Mr. Speaker, Sir, first of all, the plea-bargaining has been reduced from informality to a formal process with a proper legal framework which we are now attempting to do. The process, when it is reduced to legislation as we are trying to do, makes plea- bargaining a transparent process. When plea-bargaining is reduced to legislation like this, it ensures that the accused person has entered into this agreement voluntarily. At the time he is entering into this agreement, the accused person is fully made aware of all his or her rights and the alternatives that may be open to him or her. Mr. Speaker, Sir, also, when plea-bargaining is reduced into a legal framework, it prevents abuse of the process. Although the court is not part of the process of the plea-bargaining, it assumes a supervisory role as we shall see in the process. This agreement has to be registered in court. Mr. Speaker, Sir, if I talk briefly about this Bill, it is meant to amend the Criminal Procedure Code to make provision for plea agreements. Although under common law and tradition, this whole issue has been known as plea-bargaining, here in Kenya, it is still called plea- bargaining, but elsewhere the name has changed to plea agreement. It is an agreement between both sides; reduced into writing and registered in court. So, this Bill is to make provision for plea agreements. Mr. Speaker, Sir, the plea agreements can be initiated by the accused person, his advocate or the public prosecutor. The plea agreement is in respect of reduction of a charge to a lesser charge or withdrawal of a charge. Plea-bargaining can only be entered into after an accused person has been charged and, at any time, before judgement. Though most of them will happen at the time of the plea, but supposing at the time of the plea, the accused person says he is not guilty and the trial start? In the process of hearing the case, the accused person can decide to change his plea and enter into a plea agreement. So, a plea agreement can be entered into at any time before judgement is given in a particular case. The plea agreement is between two sides. On one side, we have the Republic, the representatives of the court appointed by the Attorney-General or the Director of Public Prosecutions or officers subordinate to them; whom the Attorney-General has authorised in accordance with Section 265 of the Constitution. On the other side, is the accused person or his advocate. Mr. Speaker, Sir, the police and other non-professional prosecutors cannot enter into plea agreements without prior approval either of the Attorney-General or of the Director of Public May 6, 2008 PARLIAMENTARY DEBATES 839 Prosecutions. One also needs to keep track of what our police prosecutors are doing. Let me, at this stage, inform the august House that it is the policy within our strategic plan that we should progressively reduce the number of police prosecutors in this country. As we progressively reduce them, we progressively increase the number of the professional prosecutors. Only just before the election, I launched a manual for training of professional prosecutors. If we will have lay prosecutors, then they will not be police prosecutors. The lay prosecutors will be lay prosecutors employed in the Attorney-General's office. This manual would have trained them to be police prosecutors and they will have a scheme of service. As of now, this law is stating that the police prosecutors cannot enter into plea-bargaining without prior approval of the Attorney-General, the Director of Public Prosecutions or professional officers duly authorised by the Attorney-General. Mr. Speaker, Sir, the law then continues to provide for what happens after the initiation and what is discussed and so on. Clause 137(E) says: \"A plea after discussions, agreements are reached.\" Clause 137(E) says the plea agreement shall be in writing. Right now, there is nothing in writing. It is merely based on some level of understanding between the prosecutor and the accused person or his advocate. One hopes that each side is acting in good faith, but now we are going to say that everything has to be adduced in writing. Of course, care is made to ensure that if the accused person who has negotiated a public agreement through an interpreter, for example, there must be a certificate by the interpreter to the effect that he interpreted accurately during the negotiations and in respect of the contents of the agreement. Mr. Speaker, Sir, the agreement then goes before the court under Clause 137(f). Here is where the court now comes really into it to see that everything is in order. Now, before the court enters that plea agreement, it has to be sure that the accused person understands, for example, that he has the right to plead not guilty. Also, that he has a right to be presumed innocent until proved guilty. However, he has a right to remain silent. He also has the right not to be compelled to give self- incriminating evidence. In fact, he has the right to uphold trial and so on. So, all those matters that the courts must itself ensure that the accused person is aware of are matters which will make the court know that the accused person has, while knowing his right, voluntarily decided to enter into this plea agreement. The court would then, after being satisfied, enter that plea agreement. The court also has the option not to accept the plea agreement, in which case, the case will proceed to full trial. In refusing to accept the plea agreement, the court shall record the reasons for such rejection and inform the parties accordingly. Even where the plea agreement has been entered into, the accused person, again, is given the right, any time, to withdraw from the plea agreement under Clause 137(k). So, this is what we have under this Bill. We are proposing to make plea bargaining above board. We are trying to shield it from being used as an instrument of fraud so that every person knows what exactly was agreed and it is recorded. As you know, court records, and actually criminal records, are public documents which any person can go and inspect. With the passage of this Bill, we would have moved a long way to ensuring a just expeditious criminal justice system in this country; a system which will help us unclog, I am quite sure, the many cases which are pending before the courts as you all know; a system which will also ensure that the sentences that are passed meet the individual concerned; sentences aimed at reforming and rehabilitating the person. With these few remarks, I beg to move and ask my fellow Senior Counsel, Mr. M. Kilonzo, to second me."
}