The Parliament of Tanzania has made amendments to several Criminal Laws in Tanzania, among others to introduce the Plea Bargain. In the recent passed Written Laws (Miscellaneous Amendments) Act (No. 4) 2019 (Act No. 11 of 2019) numerous amendments were made including the Amendment of the Criminal Procedure Act, (Cap. 20), Amendment of the Extradition Act, (Cap. 368), Amendment of the National Prosecutions Service Act, (Cap.430), Amendment of the Prevention And Combating of Corruption Act, (Cap. 329), Amendment of the Proceeds of Crimes Act (Cap. 256). Further, additional amendments have been done to other laws including Amendment of the Advocates Act, (Cap. 341), Amendment of the Office of the Attorney General (Discharge of Duties) Act, (Cap. 268), Amendment of the Government Proceedings Act, (Cap. 5), Amendment of the Magistrates’ Courts Act, (Cap. 11), Amendment of the Births and Deaths Registration Act, (Cap. 108).
This Legal update highlights the amendments done in particular to the Criminal Procedure Act, Cap. 20 through the introduction of the Plea Bargaining in Tanzania, its procedure and administration. In nutshell, plea bargaining is any agreement in a criminal case between the prosecutor and the accused whereby the accused agrees to plead guilty to a particular charge in return for some concession from the prosecutor. The concession can be by way to reduced sentence.
What is Plea Bargaining:
The Criminal Procedure Act, Cap 20 has been amended to incorporate Plea Bargaining in criminal cases in Tanzania. According to the amendments, Plea Bargaining has been expressly defined as, a negotiation in a criminal case between a Prosecutor and the Accused whereby the accused agrees to-
- plead guilty to a particular offence or a lesser offence; or
- cooperate with the Prosecutor in the provision of information that may lead to a discovery of other information relating to the offence, in return for concession from the Prosecutor which may lead to a lenient sentence or withdrawal of counts.
Upon successful Plea bargaining between Prosecutor and Accused the resultant is the plea agreement. The term plea agreement has been defined as an agreement entered into between the prosecution and the accused in a criminal trial in accordance with sections 194A, 194B and 194C of the Criminal Procedure Act, Cap 20.
Procedure for Plea Bargaining
Section 194A describes the procedure for Plea bargaining whereby Plea Bargaining can be done through Consultation by Public Prosecutor or through Consultation by the Accused or his Advocate. According to Section 194(2) the accused or his advocate or a public prosecutor may initiate a plea bargaining and notify the court of their intention to negotiate a plea agreement. It is important to note thus, the law allows Plea Bargaining to be initiated either by the Prosecutor or by the Accused or any person acting on his behalf.
During the Plea bargaining between the Public prosecution and Accused, it is the requirement of the law that Courts shall not participate in plea negotiations. Crucial important is the requirement that no plea bargain shall be concluded without a written consent of the Director of Public Prosecution (DPP).
Consequences for entering Plea bargaining
Section 194B lays down the consequences of Plea bargaining whereby, upon successful Plea bargaining arrangement, the Public prosecutor may either impose a lesser charge on the accused, or the accused may plead guilty in exchange for withdrawal of charges, or the accused may be ordered to pay compensation, or be subjected to forfeiture of the proceeds and instrumentalities that were used to commit the crime in question. It is therefore important to note that, Plea bargaining is not meant to exonerate the accused from the criminal liability but rather, to offer a suitable option for both the Prosecution and the Accused to deal and relinquish the Accused from offenses charged.
Requirements for Plea Agreement
The new Section 194C stipulates the requirements of the plea agreement. Accordingly, the section requires that:-
- A plea agreement must be in writing and with prior written consent of the DPP;
- Plea agreement must be witnessed by Advocate of the Accused or, if not represented, a relative, friend or any other person legally competent to represent the accused;
- The Plea agreement must state fully the terms of the agreement, the substantial facts of the matter and all other relevant facts of the case and any admissions made by the accused person;
- The plea agreement must be read and explained to the Accused person in a language that he understands; and
- The Plea agreement must be accepted and signed by the Accused person and his advocate, if represented or if not represented, a relative, friend or any other person competent to represent the accused and also must be signed by the Prosecutor.
- Finally, in case the Plea agreement was negotiated through an interpreter, the interpreter must certify his language proficiency and that he interpreted accurately during the negotiations.
Registration of Plea Agreement
It is the requirement of the law that any Plea agreement entered must be registered in court (Section 194D). The court registering such Plea agreement must satisfy itself that the agreement was voluntarily obtained, and the accused was competent to enter into such agreement. Therefore, when the court accepts and register the Plea agreement, it becomes binging document upon the parties (the Accused and Prosecution) and forms the record of the Court. Consequently, the court can proceed to convict the accused person accordingly.
Section 194E imposes upon Courts to observe the procedure before registration of the Plea agreements. It is mandatory for the Court to require the accused to be under oaths but also the court must address and inform the accused of his rights that:-
- by accepting the Plea agreement the accused is waiving his right to a full trial;
- by entering the Plea agreement the accused is waiving the right to appeal except as to the extent or legality of sentence; and
- the prosecution has the right, incase of false statement, to use any statement that the Accused gives in the agreement against him
Exceptions to Plea Agreement
Plea agreement has exceptions. Section 194F provides for offences which are excluded for plea bargaining and plea agreement. These includes:
- Sexual offences whose punishment exceeds 5 years or involving victims under 18 years;
- Treason and treasonable offences;
- Possession or trafficking narcotic drugs whose market value is above 20 million shillings;
- Terrorism;
- Possession of Government trophy whose value is above 20 million shillings; and
- Any other offence as the Minister may prescribe. So far, the Minister is yet to prescribe the offenses which are excluded under Plea Bargaining.
Challenging Plea Bargaining
For purposes of public interest, section 194G empowers the Director of Public Prosecution to apply to the court to set aside the sentence and conviction that were procured on the grounds of fraud or misrepresentation pursuant to the plea agreement. Likewise, the law allows the accused person in a plea agreement to apply to the court to have the conviction and sentence procured involuntarily or by misrepresentation be set aside.
Conclusion
Plea bargaining is a new system and concept in criminal procedure in Tanzania. It is expected that, the procedure will allow fair negotiation in criminal cases between Prosecutor and the Accused so as to enable speedier and efficient disposal of criminal cases. If well handled, Plea bargaining will tremendously reduce Criminal case backlogs and ensure timely delivery of criminal justice. More importantly, the system would decongest the criminal inmates in prison facilities in Tanzania.
FIN & LAW -Client Update- September 2019 -Criminal Law and Justice -Plea Bargaining
