As prisoner feeding costs hit Sh5.5bn, is plea bargaining the solution?

Now, the ODPP is encouraging ‘plea bargaining’ and ‘diversion’ of cases to be adopted on criminal matters that can be legally dispensed with through the two mechanisms.

The public should embrace the mechanisms to help dispense quick justice and save court users, said Alloys Kemo, the head of public prosecutions in the Rift Valley region.

This, he said, would help in cultivating harmonious living through reconciliation.
“A plea bargain is a negotiated agreement between the accused and a prosecutor whereby the accused agrees to voluntarily plead guilty or no contest for a concession from a prosecutor … to drop one or more charges or reduce a charge to a lesser offence,” explained Mr Kemo.

Kenya’s prisons have a capacity for 26,687 inmates but data from the Kenya National Bureau of Statistics shows that the daily average population of prisoners was 53,348 as of December 2019.

Of these, 29,796 were convicted inmates while 23,552 were remandees.
In Kenya, plea bargaining is guided by Section 137A-O of the criminal procedures code. The rules adopted in 2018 allow negotiations in cases including murder and robbery with violence but exclude sexual offences and crimes against humanity.

Cases involving minor offenders

“Diversion is resolving criminal cases by removing the matter from the court system in deserving (cases). It is an alternative to criminal prosecution,” Mr Kemo added.

He was addressing journalists at the ongoing sensitisation on plea bargaining and diversion policies for prosecutors, government agencies, non-governmental organisations, the public and the media in the North rift region.

“Diversion can be used in cases involving minor offenders, serious offences where exceptional circumstances exist, all child offenders and vulnerable persons including the elderly and those living with mental illness,” he said.

The ODPP will also visit the local GK prison on Friday to sensitise prisoners and encourage them to consider the two mechanisms for the speedy resolution of their cases.

Mr Kemo noted that a majority of prisoners congesting correctional facilities are those in remand who were denied bail or could not afford bail or bond.

“There is congestion in our prisons due to a serious backlog of cases and these challenges can be solved if we embrace both plea bargaining and diversion in some cases,” he said.

He urged those arraigned in court for petty crimes to instead choose to resolve their cases by adopting the two mechanisms as long as they are willing to assume responsibility for their actions and to ask for forgiveness from the complainants.

There has been a 300 percent increase in plea bargaining worldwide since 1990, the ODPP says. Some 97 percent of cases in the United States were resolved using the mechanisms by 2015, while in Russia, 64 percent of cases were resolved through plea bargaining by 2014.

Uasin Gishu prosecution head David Fedha said diversion is ideal for promoting peace and reconciliation just like mediation of cases as allowed by the Judiciary.

If the two mechanisms are used in Kenya, he said, the government would save billions of shillings that could be used elsewhere.

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