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"speaker_name": "Mr. Mungatana",
"speaker_title": "The Assistant Minister for Medical Services",
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"legal_name": "Danson Buya Mungatana",
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"content": "But as I always say, something good can always become better. When this Bill goes to the relevant Departmental Committee, they will want to consider a few of these suggestions that I am going to make. Under the proposed Clause 137(b), there is a clear restriction on the categories of the officers or prosecutors who can enter into a plea bargain. The fact of the matter is that, in criminal practice, we have a very big deficiency of the category of people who are either senior counsel or people of higher status who can be relied on to be present in court to prosecute the day-to-day criminal cases that arise. Mr. Temporary Deputy Speaker, Sir, if one of the aims of this Bill is to reduce the number of people who will be held in our jails, then we know for a fact that police prosecutors are the people who really move the criminal justice system in Kenya. I think it will be a good point for the Committee to consider that instead, and I hope the Attorney-General will listen to this issue, of putting certain State Counsels and people in certain categories to be the only ones who can give the authority to enter into plea bargain, the Committee should consider listing categories of criminal offences that can be entered into plea bargain and those which may not be entered into plea bargain. Mr. Temporary Deputy Speaker, Sir, the proposed Clause 137(c) addresses the question of initiation of the plea bargain process. Here, there is a provision that the plea bargain process can be initiated by the Public Prosecutor, an accused person or by his legal representative. I do not have a problem with the Public Prosecutor initiating this process. However, I have problem with the accused person being given a blanket approval to initiate the process of plea bargain or his legal representative. There is no qualification that the Attorney-General has placed on the accused person. What if he is an accused person who last week was in court, charged with a similar offence and was advised by a very clever lawyer that there is a way in which he can get a lesser sentence? So, instead of getting a seven years sentence, he was given a very short sentence because of a clever way of plea bargaining. The same accused person, after he has finished his sentence which was very short because of the plea bargain, he comes back to court and gets another clever lawyer to do the same for him. There must be standards set to the accused person who can plea bargain. We cannot, for instance, have jailbirds, entering plea bargain after plea bargain. Mr. Temporary Deputy Speaker, Sir, there is a big loophole here that the Attorney-General and the Departmental Committee on Administration of Justice and Legal Affairs need to look at so May 6, 2008 PARLIAMENTARY DEBATES 847 that we can have accused persons who enter into plea bargain be persons who are qualified accused persons and not every other accused person who comes in and says that he wants to enter into a plea bargain. Mr. Temporary Deputy Speaker, Sir, if you look at Clause 137(f), you will see that the court already sets its own standards as to what it needs to inquire before it can accept a plea bargain and the things it needs to tell the accused person concerning his or her rights. These have already been enumerated. They are in a long list which runs up to \"g\". This long list enumerates the standards that the court needs to adopt for the plea bargain. Mr. Temporary Deputy Speaker, Sir, if we put standards for the court in terms of what they need to examine or to inquire into before a plea bargain is recorded and even the rights they need to inquire into before they accept a plea bargain, it is absolutely important for the accused person also to have standards set up for them. Mr. Temporary Deputy Speaker, Sir, I say this because in the constituency I have been asked to represent, for the next five years, there are many problems concerning farmers and cattle keepers. You will find that there are some people who graze animals on peoples' land. These people are arrested, taken to court and they serve a sentence of six months or one year and once they are out, they still go back to offend in the same manner in which they were prosecuted. If the accused person got a plea bargain and instead of serving his 12 months sentence, he serves for three months and then goes back home, this would offend the whole justice system in the community. If someone has been punished, the community needs to feel that justice has prevailed upon the person who is serving the sentence. If he got a plea bargain, that cannot be a candidate for a second plea bargain and definitely not a third plea bargain. Mr. Temporary Deputy Speaker, Sir, we need to look at who can be allowed to enter into a plea bargain and not every accused person. I agree with the Attorney-General and the Seconder of this Motion, Mr. M. Kilonzo, when he says that this Bill, under the proposed Clause 137(n) shall not apply to sexual offences. That will offend the sense of justice in this country. If, for example, a little child is defiled, then a clever lawyer goes and enters into a plea bargain and a full sentence is not served--- This is a good innovation because definitely, there are some offences that we would not want to see or hear, as a country, that there was a plea bargain. In improving Clause 137(n), I think and propose that the Committee should look into a set of offences and legislate them. I agree that the Sexual Offences Act must be there. There are drug- related offences that are recognised internationally. Trading in drugs or in substances that can alter the mind must definitely be in this category. We have other serious categories like when we have offences by people who are accused of treason or people who are accused of acting against the interest of the entire nation. There are categories which the Departmental Committee on Administration of Justice and Legal Affairs needs to put into legislation so that we do not let all these be decided by the Attorney-General. Mr. Temporary Deputy Speaker, Sir, I propose that the proposed Clause 137(n) should be expanded. In fact, I propose that a proper schedule be created and the Committee, in its wisdom, looks into all possible--- I am sure that hon. Members will speak about others here. They should look into all offences that should not be part and parcel of plea bargaining. Plea bargaining should be restricted to offences that will not offend the morality or the sense of nationhood in this country. Otherwise, I want to add my voice to those who have said that it is time we passed this law because it brings the country to a level of criminal justice law across the world where this is a clear provision. At any rate, those of us who have practised law in private practice, know that it is a matter of fact that for serious offences such as murder, there has been a practice that has been there. It is not legislated but it has been happening. For example, when a matter arises from a crime of 848 PARLIAMENTARY DEBATES May 6, 2008 passion, someone finds his spouse on top of another person, when this person takes a knife and passes it through the intestines of the offending party, even the prosecutor knows that the accused has committed the crime of murder but it is a crime of passion. So, ordinarily, in practice, it has been known that when you look at the set of facts, the crime is reduced from a murder charge to manslaughter before it goes to trial. Mr. Temporary Deputy Speaker, Sir, if this has been happening, we should not be waiting for the law, all the time, to be overtaken by events. I think, in Kenya, we need to be ahead and anticipate circumstances. The country is changing and the population is changing. Crime is also changing and we need to meet international standards. I think, in Kenya now, we need to be ahead. We need to anticipate circumstances that the country is changing into, and accept that the population is growing. Even crime is changing and we need to meet international standards. Mr. Temporary Deputy Speaker, Sir, I think it is time we passed this law. It is already in practice; we only need to legislate properly, and in a manner that is transparent, as the Attorney- General said. It should be done in a manner that everybody understands, so that people will not, again, be accusing officers of the court that they take some money, or something, for them to change the plea into a lesser offence. Mr. Temporary Deputy Speaker, Sir, I would also want to say that another reason why we need to accept this is that in some communities in parts of this country, near where I come from, you will find there is a plea-bargaining. This is in the African sense of justice. You will find that when someone commits a crime, the community, instead of retaliating says, it is a man who has been killed, \"Traditionally there this, and this amounts to compensation\". If this is done, there will be no bloodletting in terms of a reprisal. That has not found expression in law in this country. That African tradition has not found expression in the law of this country! So, if communities in African societies are already practising the plea-bargaining, in fact, it is time we incorporated that practice into the law and made it part of the system of the law that we have. It would help us to help everyone operate within the law. Even the constituents we represent are already operating to international standards. We are saying that we are only making our law meet international standards. In fact, even the constituents out there in the villages, in various communities, are already practising this. This is a system of compensation for crimes, that are committed, especially serious crimes, against communities. Mr. Temporary Deputy Speaker, Sir, we should not have difficulties in passing this law. I would urge all hon. Members who will be making their contributions to look at this Bill. There could be provisions that we could make it better. Definitely this is a law whose time has come and it should be passed. Mr. Temporary Deputy Speaker, Sir, with those few remarks, I beg to support."
}