Citizens’ dilemma: To plead guilty or not?

By Pravin Bowry

Kenya: In or around 1997, the concept of establishing modern forensic science laboratories was floated, but the Anglo-Leasing scandal put paid to it. The labs were to cost $54.56 million(ShSh4.7 billion today).

When faced with a criminal offence, the law gives the person, referred as the” accused” the free and voluntary option to plead ‘guilty’ or ‘not guilty’. Depending on the election, the process of the trial is determined. Plea of guilty, which must be unequivocal, means that the prosecution does not have to prove its case by calling witnesses and the accused is convicted and usually sentenced there and then.

Traffic Act

Plead “not guilty” and the magistrate gives a date for the hearing when witnesses are called to give evidence and sets the terms of bail conditions to ensure that the accused attends court to face the allegations made by the prosecution.

Pleading guilty by law is or at least should be regarded as a magnanimous act by the citizen as acceptance of guilt saves judicial and prosecutorial time. Plea of guilty must result in a lesser sentence and is a strong mitigating factor. In most jurisdictions, but not in Kenya, there are precise sentencing guidelines given and made known so that an accused knows how he will be treated upon pleading guilty.

Kenyans are intimidated to plead guilty not because they desire to unequivocally accept guilt but because the system has made it convenient to plead guilty and this happens when dealing with mainly petty, and what can be termed as municipal offences and offences under the Traffic Act.

And let the truth be told to those in the know. This system is the biggest source of corruption by the police, county askaris, court clerks and prison officers and others, with relatives paying thousands of shillings in getting the process of release accomplished after a plea has been taken.

The gameplan is to extract quick money from citizens who are forced against the wall with the threats to be dragged to court, more often than not, on trumped up charges.

Kenyans are being   so overwhelmingly inconvenienced that being taken to the police station, being put in the cells, then given cash bail is a nightmare resulting in traumatic, time wasting,  disgraceful and humiliating experience.

The reality is that it is easier to bribe your way out, either on the streets or the police station.  It is commonly believed that only those with mikono gamu (those with soiled hands of gum or those not willing to bribe) are the ones who land up in court.

Let the drama now shifts to the courts! Registering the case, getting the prosecutor and the court clerk and the arrival of the magistrate to take plea and having the citizen who may be in the cells or on bond in the crowded court is, to put it lightly, a mammoth task.

In busy magistrates court one can easily wait for hours before the matter is dealt with depending on the efficiency or whims of the magistrate and the availability of prosecutors who these days are in very short supply.

Arrest stage

Plead guilty and you will be fined but will be taken to the prison cells. Fine has to be paid by a friend or relative; paying the fine, getting the file to the clerk, the necessary verifications and the process means that one languishes in the cells generally for the whole day. And if you desire to get out early, then there is in most courts ways and means to expedite the process. Of course at a cost!

 To say that this is not known to the magistrates is to be naïve.

Plead not guilty and your case is fixed for hearing and generally these days a cash bail order is made. And this cash bail amount is in most cases itself penal and unaffordable by the most citizens. To find the money and to process payment inevitably means being taken to remand.

The poor man who was arrested on what he believes is a trumped up charge has a lot of time to reflect whether it would have been easier to bribe his way out at the initial arrest stage or to plead guilty and not be exposed to a few nights in the remand home.

Courts in the country are so overwhelmed with petty crimes that I have seen pleas being taken en masse by accused raising hands with batches being asked to plead guilty or not guilty and if you dare plead not guilty you are segregated for unnecessary judicial partiality of being given onerous bail conditions.

In breach of traffic regulations and municipal offences at least, a civil and dignified system of apprehending and dealing with offenders needs to be devised soon without red tape and without loopholes which encourage backhand deals.         

Innovative thinking – such as calling upon experienced Advocates and retired police officers to act as voluntary lay magistrates on the lines of Justices of Peace in England may well be the way forward.

And what about CCTV surveillance to see what happens in the courts and the dark prison cells in the courts?

The writer is a lawyer.

[email protected]