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"speaker_name": "Mr. M. Kilonzo",
"speaker_title": "The Minister for Nairobi Metropolitan Development",
"speaker": {
"id": 47,
"legal_name": "Mutula Kilonzo",
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"content": " Mr. Speaker, Sir, I was on my feet explaining that Clause 137 is crucial and re-affirms to all and sundry that this law is not intending to undermine the existing constitutional protection of the Kenyan people or any person who is taken to court. At the point of recording, the court will, in fact, have to explain to the accused person the things that I have mentioned, particularly, under Clause 137(f)(g), about the court's authority to order compensation. This means the accused person, in the event that the offence involves compensation to the victim or to the State or restitution, will not say, later: \"I pleaded guilty and entered into this agreement under misapprehension. I did not know that I would end up losing the same property that I stole. I did not know that I would end up having to compensate the victim or to restitute whatever I stole.\" So, the power is expressly protected there; the right of the accused person to know that by entering into such an agreement, he is exposing himself to restitution and also to compensation to the victim. Mr. Speaker, Sir, above all, the accused person is entitled to be told by the court that, by entering into such an agreement, he is waiving his right to an appeal. After all, the right of appeal, because of our judicial system being a three-tier system from magistracy to High Court and Court of Appeal, sometimes, confers on the accused person, the right to an appeal being an important component of a full trial. Again, the accused will be told that in the event that he makes a false statement and the issue of prosecution for perjury arises, then that statement can be used against him, so that, again, he is not taken by surprise. 844 PARLIAMENTARY DEBATES May 6, 2008 The law also goes further: \"Where the court accepts this plea agreement, it will set down the factual basis of the plea record.\" The reason for this is to remove beyond peradventure, any doubt in the mind of any person involved in this particular prosecution, that there was any under- hand dealing or hanky-panky . This is the reason as to why I am recommending it to the country. The court must also say that the agreement shall become binding upon the public prosecutor himself. Again, this eliminates an experience that has been going on in the country for close to 12 years now - judicial review proceedings--- Mr. Speaker, Sir, you will remember the famous case involving an hon. Member who is now, in fact, a Member of Parliament, where the Attorney-General promises not to prosecute him and then turns around later and says that he will prosecute him. So, that protection is now expressly stated. The agreement shall become binding upon the public prosecutor and the accused person. In fact, I must express special admiration for the Attorney-General. He is using the back door to reduce some of his powers, under Section 26 - the power to prosecute - because it is an absolute power. In this particular instance, once the Attorney General approves a plea agreement, he will be bound by that plea agreement, and he cannot turn around against it. Although this provision will deny my fellow former lawyers in the Bar a lot of legal work, it is long overdue for this country. We know, for sure, that the word of the Attorney-General or the prosecutor is binding. Mr. Speaker, Sir, upon conviction, another window is yet opened for the parties to address the court. In passing the sentence, the court shall take into account the period during which the accused person has been in custody. This is an extremely crucial provision. Time and again, our people remain in custody for a long time before they are put on trial. In the end, the magistrates only grope in the dark as to whether the period that was taken by the suspect in custody can be taken into account. The court will also take into consideration the proposal as contained in Clause 137(i). This is where it matters. It says:- \"In passing sentence, the court shall take into account a victim's impact statement, if any, made in accordance with Section 329(c).\" This is a dramatic improvement of the justice system for this country. At that point, the victim or the members of his family or his counsel, will be able to advance the impact that this case may have had on their family. Again, under paragraph (c), the court will have to say the stage at which the accused person indicated his intention. This means that we will be giving the accused person an opportunity to give his intention early enough, without having to wait until the public has incurred enormous expenditure in prosecuting him, or in investigation, so that if he indicates, on the date of arrest, that he intends to utilise this law, then that can be taken into account. This may very well influence the court in giving a lesser sentence than could, otherwise, have been. Above all, under Clause 137(j) - I want to pay special tribute to the task force that helped the Government to come up with this proposed law - in a case where a court rejects a plea of agreement, because a court has a right to reject a plea of agreement, the reasons must be stated. This is because some magistrates might take an interest in a case or there might be circumstances that may influence the reason for not accepting the plea. You notice that, upon rejection of a plea agreement, no further plea negotiation in a trial relating to the same fact can take place. Again, this a warning both to the prosecution and to the accused person to make sure that they understand that if the court for any reason rejects what they are advancing, then they cannot do it again. I have noticed, in my life, as a trial attorney, that this sort of thing used to happen almost during every mention. You would find the counsel telling the magistrate: \"Your honour we are discussing this matter with a view to reaching a plea bargain. Can you give us another mention of 30 days\". In the process, the country incurs expenditure and the accused person is disadvantaged and everybody else is disadvantaged. May 6, 2008 PARLIAMENTARY DEBATES 845 Mr. Speaker, Sir, I also want to acknowledge that under Clause 137(n), this law would not apply to offences under the Sexual Offences Act. This is also important for the protection of our women and even, for that matter, the protection of men because I hear the Sexual Offences law that we passed in 2006, is equally applicable to men when they are assaulted sexually. As I hear, it is an increasing practice. Again, the Attorney-General is also given the discretion, and I think it is fair that this discretion be recognised, that he, himself, can by notice in the Kenya Gazette specify offences in which a plea bargain will not be acceptable. I can see, for example, myself suggesting to the hon. Attorney-General that offences pertaining to drug-trafficking, prostitution and offences that affect the moral fibre of our country should not be allowed for plea bargain; for people who sodomise young children, for people who commit offences that challenge the protection that the Holy Bible, the Holy Qur'an and the Hindu Gita provide. That way, they will know once and for all, that you do not touch a Kenyan sexually without their express consent as required. I hope that the Attorney-General will also publish speedily the rules contemplated by Clause 137. I am saying this because this is a law whose time has come. If these rules are published timeously, it will enable the country to come to terms. The magistrates will not be grappling in the dark in the process of implementing this very critical law, that is going to speed up the process. Mr. Speaker, Sir, I would like to address the definition of plea agreement. Members of this august House should note the definition given: \" A plea agreement\" means an agreement entered into between the prosecution and an accused person in a criminal trial in accordance with Part IV\". Therefore, hon. Members, as we debate this, we must look at what Part IV says so that we understand, once and for all, that it is not any cursory discussion that takes place between the prosecutor or the friendly policeman in arresting you, who says: \"Do not worry, if you agree to this, we are going to make sure that you go home, in an effort to secure a plea\". The plea agreement that is contemplated by this law is a very serious matter and is a dramatic advancement of our criminal justice system, at least, with regard to how accused persons take offences that they are charged with. Above all, as I have said, it would build on the foundation that this country has created in passing the Witness Protection Law last year. Mr. Speaker, Sir, competence of an accused person under Clause 137 is critical. You would remember in your training the rules we call the McNaghten Rules- determination of whether the person is competent. It is not clear what the Attorney-General has got in mind whether under this Clause, the magistrate will require an investigation by a qualified doctor or a specialist in matters involving everything above the shoulders upwards, the state of mind and so on. I hope that when this Bill reaches the Departmental Committee, or when it comes to the Committee Stage, we ought to be a little bit clear as to what is involved here. This is because some of the people who will appear before magistrates and who may be entering a plea, may themselves be unable to understand the process they are undergoing under the famous MacNaghten Rules. Therefore, I think, there is need for clarity under Clause 137. But it is a welcome suggestion regarding our jurisprudence as to how we manage our accused persons. We will earn respect throughout the world when it is seen that this requirement is an open window for the magistrates and judges to be require a serious mental investigation, particularly when they are in doubt as to whether the accused person really understands what he is doing. More so, on this aspect, the state of mind in criminal matters refers to the time of the commission of the offence and not necessarily the time at which the accused person is in court. Therefore, it is a highly technical area that requires very careful clarification. Mr. Speaker, Sir, with those very few remarks, I beg to second."
}