, NAIROBI, Kenya, Feb 8 – The National Council on Administration of Justice (NCAJ) has recommended the adoption of plea bargaining in the criminal justice system as part of wide-ranging measures to expedite conclusion of graft cases.
Chief Justice David Maraga announced the resolution on Thursday following a council meeting in Naivasha where State and non-State actors met to deliberate on challenges hindering the fight against corruption.
“Recoveries of stolen assets are crucial. You may get someone pleading guilty and saying they can pay back whatever they took or as negotiations may dictate. That will be encouraged,” he said.
Director of Public Prosecutions, Noordin Haji, who also attended the council meeting welcomed the proposal saying it would help expedite conclusion of cases.
He said the Directorate of Public Prosecutions will adhere to set guidelines to shield the plea bargaining process from abuse.
“We’ll be willing to listen to them (accused persons) and come to amicable agreements with them. But of course we’re still subject to the Judiciary which is an oversight mechanism that has been put in place so that we’re not accused of abusing that ability to come up with a plea bargain,” Haji noted.
Plea bargaining is provided for under Section 137 of the Criminal Procedure Code, the prosecutor allowed to negotiate with an accused person in respect to reduction of a charge or withdrawal.
In December, Haji allowed eight banks named in a National Youth Service (NYS) graft case to pay fines after the financial institutions filed for plea bargaining in lieu of criminal prosecution.
“Plea bargaining is a tool we hope to apply but apply fairly and judiciously. Part of NYS cases is already a success because we have eight banks agreeing to pay fines under the arrangement,” the DPP said at the time.
Five of the banks – Standard Chartered Bank (StanChart), Equity Group, KCB Group, Co-operative Bank of Kenya Ltd, and Diamond Trust Bank (DTB) – were September fined Sh392 million by the Central Bank of Kenya for violating anti-money laundering regulations while handling money from the where dubious transactions with private entities are said to have cost the agency Sh468 million.
KCB was slapped with a Sh149.5 million fine, with Equity Bank and StanChart fined Sh89.5 million and Sh77.5 million respectively.
DTB was fined Sh56 million while Co-operative Bank was directed to pay Sh20 million.
The banks were said to have handled a cumulative Sh3.5 billion from NYS, StanChart handling the highest amount at Sh1.6 billion.
Equity Bank and KCB processed Sh886 million and Sh639 million respectively.
The courts have also admitted individuals to plea bargaining agreements in lieu of criminal prosecution.
Former nominated Senator Joy Gwendo (Jubilee Party) was last year allowed to settle a Sh1.7 million after pleading guilty to fraud charges and filing for plea bargaining.
She was however handed a two-year jail term by Chief Magistrate Douglas Ogoti on December 7 after she failed to honour the agreement.
A week later, Gwendo was released on a Sh400,000 cash bail by the High Court after filing a conviction and sentence review application, her lawyers arguing that she had settled the Sh1.7mn debt.
She had been accused of conferring herself Sh2.2 million, property of Kisumu East Cotton Growers Cooperative Society, through Kivali Development Initiative.