No negotiations for sex offences, prosecution told

Some prosecutors are allowing negotiations and entering into plea bargain in sexual offences contrary to the law.

 The Director of Public Prosecutions Noordin Haji has revealed that his office had received such reports and warned the prosecution counsel to desist from initiating such negotiations, regardless of the nature of the case.

Haji said sexual offences must be prosecuted to finality through trial and should not be resolved by alternative means, warning that it was a miscarriage of justice for prosecutors to get into negotiations and plead with offenders even in offences such as rape and defilement.

“Prosecution counsels have been getting in plea bargaining applying diversion in criminal cases under Sexual Offenses Act. Negotiating and entering into plea bargaining is not only illegal but a miscarriage of justice,” Haji stated.

In a letter to all heads of departments, regional coordinators and head of counties, the DPP directed that the practice should stop and instructed that quarterly reports be made of all cases under other laws that applied plea bargain and diversion.

“I therefore direct all prosecution counsel to desist forthwith from negotiating and entering into plea bargaining agreements or applying diversion in Offences Act 2006. All cases under other laws in which diversion is applied as an alternative to prosecution should be succinctly reported in the quarterly reports,” he said.

Judicial proceedings

Withdrawal of cases, plea bargain and diversion are allowed in law.

Both diversion and plea bargain seek to keep the wheels of justice moving in a timely and cost effective manner, without necessarily resorting to full judicial proceedings if they can be resolved by alternative means.

However, Section 137N of the Criminal Procedure Code (CPC) states that this does not apply to offences under the Sexual Offences Act and offences of genocide, war crimes and crimes against humanity.

The Diversion Policy, a first for Kenya, aims at offering a second chance to offenders who accept responsibility by diverting cases from court process, to be settled out of court, on merit through agreed structures.

The Plea-Bargaining policy, on the other hand allow an accused person to enter into an agreement or plead guilty to some but not all charges, or a different offence or less serious charge, in exchange for some concessions by the prosecution.

Second chance

Diversion is meant to give offenders a second chance in life by assisting them reintegrate into the community, reduce the risks of re-offending, and enable them avoid a criminal record. Those who successfully complete the process will not be convicted and have a criminal record.”

Diversion seeks to address the lasting stigma that attaches to a criminal conviction and incarceration.