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Plea bargain innovation helps clear 1,500 cases

Chief Justice Bart Katureebe

On August 23, 2016, High court judge Wilson Masalu Musene handed a married man 10 years in prison for raping a 60-year-old woman fit to be his grandmother.

The sentence handed to Stephen Kato seemed too lenient, given that a convicted rapist is liable to a maximum penalty of death by hanging in the strict interpretation of the law.

But Kato’s case was different. He pleaded guilty instead of going through a trial, thus saving court’s time. Kato’s case typifies the judiciary’s new “plea bargain” initiative.

Plea bargaining is a negotiated agreement between prosecution and an accused person represented by a lawyer. Once a deal is struck, the accused person is brought before a judge to plead guilty to the charges against him or her in exchange for a lesser sentence. The judiciary says the initiative promotes reconciliation in society. 

However, the judiciary’s technical advisor, Andrew Khaukha, cautions that before prosecution enters into a plea bargain agreement with an accused person, it must take into consideration the interests of the victim or complainant.

Khaukha says this can be done through due regard to the nature of and circumstances relating to the commission of the offence, the accused person, the interests of the community, and the loss or damage suffered by the victim or complainant.

Justice Musene abided by this advice in August when he upheld the death penalty handed to Francis Mwanga for a murder committed 17 years ago. The judge maintained that Mwanga must be hanged for the murder of five-year old Shamim Muhammad on Easter day in April 1999.

Mwanga, together with 147 other death row inmates, had taken advantage of a plea bargain session to ask that their death sentences be commuted by High court after the state hesitated to execute them.

While re-condemning Mwanga to suffer death, Justice Musene observed that much as he had spent 17 years on death row, he does not deserve any mercy since he knowingly sacrificed an innocent child for riches.

“Death punishment is only deserved in the rare of the rarest cases. This is the worst of the worst cases because it involved barbaric and inhumane acts against innocent children,” Justice Musene said.

GENESIS

Though Chief Justice Bart Katureebe has made it a focal point of his administration, the programme is a brainchild of his predecessor Justice Benjamin Odoki. In 2014, the judiciary set up an 11-man team headed by Principal Judge Yorokamu Bamwine to drive the initiative with an overall objective of enhancing the efficiency of the criminal justice system.

Plea bargaining was introduced amid a report that Uganda had more than 38,000 inmates instead of the recommended 15,000, making its prisons the most congested in East Africa. More so, the 2015 report into the case census found that there were 114,512 cases pending in all courts.

Supported by development partners and the University of Pepperdine, the judiciary launched a pilot plea bargain project in 11 circuits of the High court in 2015. During the pilot period, the High court disposed of 1,500 cases in a very short time. Beneficiaries of plea bargain, Justice Katureebe said, hailed it for being cheap with a high case clearance rate of 95 percent per session.

“The judiciary shall continue to expand plea bargaining to all the circuits of the High courts and magistrate’s court to provide timely justice to offenders and reduce on pre-trial remand for capital offenders,” Katureebe said.

CRITICS

Critics of plea bargain, like Centre for Legal Aid’s Isaac Kimaze Ssemakadde, contend that the programme cripples the criminal justice system because it leans more on one’s power of negotiation and deal-making.

Ssemakadde said both the defence and prosecution depend on their power to negotiate a deal, instead of winning a trial. But the judiciary argues that pleading guilty to get a reduced charge or lessen the seriousness of the offence is better on an offender’s record than a conviction that might result from a full trial. 

Chief Justice Katureebe insists that plea bargaining has tremendously reduced case backlog, while at the same time promoting reconciliation. Ever since the programme was launched at Kigo prison a year ago, close to 3,000 inmates have benefited from plea bargaining, Katureebe revealed.

“We have learnt many lessons along the journey of rolling out plea bargaining,” he said. “We have learnt that successful implementation of plea bargaining requires adequate training of the actors, sensitization of the inmates and the community, patience in carrying out negotiations and greater respect for fair trial, as well as respecting the rights of the accused persons.”

The chief justice acknowledged that plea bargaining can easily be misunderstood and abused if the agreements are not well made, or where the sentences imposed defeat the cardinal rules of sentencing.

“It is, therefore, important that the national task force on plea bargaining carries out an in-depth study of the application of plea bargaining in Uganda to identify areas that need improvement and opportunities to make the programme a success,” Justice Katureebe said.

Indeed, rule 13 of plea bargaining, states that court may reject a plea [bargain] agreement if it is satisfied that it may occasion miscarriage of justice. Earlier this year, when Justice Bamwine visited Kigo prison, several prisoners protested against plea bargaining. The inmates alleged that the scheme has left many of them “crying” after being sentenced to long-term punishments contrary to what had been agreed.

The inmates said there are people who agreed to 10 years imprisonment but were instead sentenced to 20 years. Others said they were taken to court and sentenced before agreeing to anything with prosecutors. Some claimed that they were sentenced even after they had opted out of plea bargaining.

The challenges notwithstanding, judiciary technical advisor Khaukha expressed optimism that by the end of the current judicial calendar year, 1,000 more cases will have been disposed of through plea bargaining, which has now been rolled out throughout the country.

dkiyonga@observer.ug

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