Plea bargaining refers to the process whereby an accused and public prosecutor reach a mutual agreement without going through long court proceedings. In this process, the accused voluntarily admits charges and the prosecution voluntarily discharges some charges or asks the court to reduce punishment to the accused upon conviction. This is very common practice in many developed countries including but not limited to United State of America, Italy, France etc.
Types of plea bargaining
Plea bargaining is not a collective and cumulative scheme, it is based on needs and demands of both sides, that is to say, a prosecution and accused. These parties may bargain on the following terms: –
i. Charges bargaining
ii. Sentence Bargaining
iii. Facts bargaining
iv. Counts bargaining
In Tanzania, the term plea bargaining is not very common because our Criminal Procedure Act is silent on this. Our criminal justice framework does not provide a leeway for an accused person to voluntarily bargain with prosecution to dispose his case without going through the long and complex court proceedings. Nevertheless, a number of major criminal cases since 2017 to date have been disposed through informal plea bargaining. This is most commonly in economic crimes cases where the accused persons voluntarily admits offences and the prosecution side either substitutes or withdraw some of offences. A large number of economic crimes cases seem to have ended this way. This is typically a plea-bargaining scheme although it has not clearly been prescribed by the law.
Why plea bargaining is necessary at this particular time?
We should admit that, this is one of the very strict regime ever happened in our land save for Mwalimu Nyerere time where economic sabotage offences were at its apex. This regime is very strict and sensitive when it comes to compliance issues. It is undisputed fact that, the compliance offences are the leading chargeable offences in this era, these includes Money Laundering, Tax Evasion, Economic Organized Crime and Occasioning Loss.
It should be made clear that, most of the aforementioned offences do not need ill motives to be charged with. Most of the persons charged, either abstained from fulfilling their obligations or negligence. For example money laundering and occasioning loss offences mostly arise from negligence.
Therefore, to that end, it is important to have a clear and well recognized legal framework which will allow these people who have been in trouble for negligence and without ill will, to settle with the prosecution without going through tough, complex and long court proceedings.
Advantages of plea bargaining.
Plea bargaining has a number of advantages, these includes: –
i. Expeditious disposal of many criminal cases;
ii. It guarantees win to the prosecution side;
iv. Aid other cases;
v. Normally no maximum sentence is imposed;
vi. It reduces the inmate congestion in prison facilities; as well as,
vii. It saves time and of course it is the source of government revenue.
Disadvantages of plea Bargaining.
i. Creation of criminal record for the innocent, because some people decide to plea despite the fact that they are innocent for the fear of long and complex trial;
ii. Some people argue that it is unconstitutional as it does not guarantee fair and effective trial; and,
iii. Eliminates a chance for appeal.
It is the right time to amend our Criminal Procedure Act, 1985 by inserting the provision which allows a plea bargaining. Also, it is the convenient time to have the Plea-Bargaining Rules to legally justify the current informal plea bargaining.
However, for it to be effective, most of our Penal laws have to be amended in sentencing provision to include an option of fine to some offenses which are economical. For example section 13 of Written Laws (Miscellaneous Amendment Act No.3 of 2016 amended section 60(2) of Economic Organized Crime Cap 200 to impose a compulsory imprisonment of 20 to 30 years while the main offences like Money laundering may be punished with fines in their respective laws.
Therefore, for the effective and efficient plea-bargaining scheme, all the harsh punishments such as compulsory imprisonment without fine option should be eliminated. This is because an accused person may hesitate to plea for the fear that they will be sentenced to prison.