Dar es Salaam. The government is proposing to introduce a law that will allow defendants in criminal cases to plead guilty at first hearing in return for dismissal of charges or a more lenient sentence.
The Written Laws (Miscellaneous Amendments) (No 4) Bill that was introduced in the National Assembly for the first reading on 26 June, 2019 seeks to amend the Criminal Procedure Act (CPA) to accommodate the changes.
The government says it was adopting the system, already accepted in several countries, to help reduce backlog of cases in courts, prison congestion and ensure timely delivery of justice.
If enacted into law, the new arrangement will allow a prosecutor and an accused to negotiate outcome of a criminal case.
With the new law, people who stand trial, for instance, for money laundering or economic crime charges, can agree to enter an early guilty plea as a way of mitigating sentence or having the case dismissed.
The negotiations allow an accused person to cooperate by providing the prosecutor with vital information that may lead to the discovery of other information related to the offence.
The cooperation can lead to lenient sentence or withdrawal of other counts.
Tanganyika Law Society (TLS) president, Dr Rugemeleza Nshala welcomed the proposals, saying such provisions were available in the laws of developed countries.
“I need to go thorough the analysis, but for a country like the US, plea bargaining is common and really helps in reducing backlog of cases. That’s a good way to fast tracking court cases,” said Dr Nshala.
However, he is worried that the plea agreement system can be misused and can create room for corruption.
“Sometimes it may be used to threaten people for the purpose of getting money. Others may actually lose their rights in the name of settling matters when they don’t want to spend time in lengthy cases,” said Dr Nshala.
The amendments are proposed at a time the government has already entered into plea agreement with accused to settle charges.
The leading mobile phone service provider, Vodacom Tanzania, said in April it has agreed to pay Sh5.28 billion to the government after the telecom giant’s managing director, Hisham Hendi, and four other executives were charged with economic crimes.
They were accused of permitting the use of network services without authorisation and causing loss of revenue to the government.
“Vodacom Tanzania pleaded guilty and complied with all the compensation and penalty provisions,” stated the firm in a public announcement.
In December last year, businessman Akram Azizi who faced economic sabotage charges walked free after paying Sh259 million after he pleaded guilty.
A state attorney dropped the unbailable money laundering charges against Mr Aziz. Both the prosecution and defence lawyers agreed on a lenient sentence to Mr Azizi.
The proposed law amendments also seek to allow, either a public prosecutor or an accused person to initiate the negotiations. Once the deal is done, the accused may be ordered to pay compensations.
Plea bargaining will not apply to sexual offences whose punishment exceeds five years or involving victims under 18 years; treason and treasonable offences; possession or trafficking of narcotic drugs worth above Sh10 million; and terrorism.
Other offences which do not qualify for plea bargaining are possession of government trophies worth Sh10 million and any other offences, which may be prescribed by the minister in the government gazette.
Plea bargaining is defended for helping cooperation in complex cases, fast tracking cases and so on. The noted benefits of plea bargaining have made it an increasingly popular model of criminal justice reform around the world.
France, Germany, India, Japan, Nigeria, Russia, and South Africa have adopted some form of negotiated justice.
As more countries increasingly embrace the negotiated justice system, a study by the human rights organisation Fair Trials revealed that the use of trial-waiver system has boosted the risk of miscarriage of justice.
While acknowledging that there can be some merit in plea bargaining – such as waiting times, pre-trial detention, costs and protecting vulnerable victims from having to relive their ordeals, the study argues there should be more safeguards such as mandatory access to lawyers.
The organisation suggests that judges could also be involved in negotiations and evidence review to ensure that convictions are not imposed on the basis of unreliable confessions or guilty pleas alone.