It's time to rethink plea bargains in graft cases

Okoth Obado at the centre of renewed debate on how Kenya handles corruption cases through plea bargains and asset forfeiture [File, Standard].

It’s time to rethink plea bargains in graft cases

Last week, a Nairobi court terminated the  Sh73.5 million corruption trial of former Migori Governor Okoth Obado by allowing a plea deal that compelled him to forfeit Sh235 million to the State.

Understandably, many Kenyans were surprised by the deal that ended neither an acquittal nor a conviction after a protracted six-year trial in which the prosecution called just one witness.

There is nothing illegal about this specific plea although some people feel that Obado got away easily by simply paying three times the amount he was accused of stealing. Among those who criticised the plea bargain agreement is the National Integrity Alliance (NIA) that warned the move risked weakening the fight against corruption.

Kenyans deserve clarification of what plea deals entail and assurances that this device shall be used sparingly and will not be the default excuse for an inept or lazy prosecution.

Within Kenya’s criminal justice system, plea bargaining is permitted by regulations of the Criminal Procedure Code and is envisaged by Article 159 of the Constitution that allows alternative justice mechanisms outside court that may be expeditious and equitable.

Often when faced with an increasingly hopeless case, either the prosecution or defence may explore a bargain to avoid a long and protracted trial that may end in the acquittal of the suspect with no possibility of recovering the stolen property or compensation of the victims.

Understandably, such bargains involve a give and take by both sides and can take years to negotiate. They contain terms and conditions for the accused to fulfill, whose violation may snap back the trial. But the party in the weaker negotiating position concedes more.

Be that as it may, there is the bigger question of whether it is enough punishment for those accused of grand corruption, that has caused widespread suffering and in some cases even death, to merely forfeit assets of whatever value and then get off scot-free. As the NIA pointed out, a bad precedent is being set by allowing individuals accused of plundering public resources to negotiate their way out of full criminal accountability.

Such a move is unlikely to deter corruption, especially among the rich and powerful who will have no problem paying whatever amounts that will be demanded during the plea bargains. It is likely that corruption, which has been Kenya’s biggest nightmare, will remain so for many years to come without severe punishment for those who have made it their lifeline.

Consequently, it is imperative for Kenyans to have a conversation on the place of plea bargaining when it comes to matters of high-profile corruption and whether there is need to amend the law.

Meanwhile, courts should ensure that plea deals, adequately and sufficiently, favour victims first. They should encourage deals in which the accused also plead guilty or submit to serve a reduced sentence instead of just giving back part of their wealth and walking away with a clean slate.