On October 12, plea bargaining will be officially rolled out in Rwanda’s criminal justice system. It is expected to begin as a pilot from select court jurisdiction and on two crimes, before it can be considered for expansion. In law, plea bargaining is the practice of negotiating an agreement between the prosecution and the defence, whereby the defendant pleads guilty to particular charges in exchange for a more lenient sentence or other possibilities that may even include dismissal of the charges. Among the advantages, plea bargaining not only reduces backlogs in courts and overcrowding in prisons, but also helps investigators easily get key information from the suspects, which can be used in fighting organised crime. In a recent online meeting organised by the judiciary, legal experts from different countries including the United States, had some key considerations to share with their Rwandan counterparts in regards to how to implement plea bargaining. The meeting brought together judges, prosecutors and defence lawyers. Michael DiReda, a judge from the US State of Utah, one of the speakers of the day, tipped Rwandan judicial officers on the importance of integrity in the process of making a plea bargain deal. For example, he noted that as a judge, before he can accept a plea bargain agreement to proceed, he always pays attention to certain details including whether all the parties are entering it willingly. “I make sure that the plea is being entered knowingly and voluntarily; that no pressure is being used to compel an individual to plead guilty; that there aren’t any circumstances that I am unaware of that might be compelling that person to accept responsibility when they may in fact feel that they have not committed the crime,” he noted. Secondly, DiReda said he always makes an effort to find out from prosecutors whether the victims involved have been consulted and are in agreement. “If the victim is not in agreement, then I ask the prosecutor to explain to me why the pre-negotiation should still be accepted by the court despite the disagreement of the victim in the case. By doing that, I feel that I am protecting the integrity of our justice system; that I am not allowing a pre-negotiation to occur for reasons that would undermine justice and what we are trying to achieve,” he said. He also highlighted the importance of trust between the prosecutor, the defence advocate, the accused individual, the victim and the court during plea bargaining. Here, he warned against corruption and dishonesty as serious disadvantages. “The lawyers that practice in front of me, I see them every week. I know them, and I know their character and standards. I know that they would never seek to have me approve a pre-negotiation that was not completely honest and trustworthy,” he said. On an important note, he explained that plea bargaining is like a process of creating balance between justice and mercy. Here, he stressed the significance of examining the mitigating circumstances in the cases. “Someone who steals a coat certainly has broken the law, there is no question about that. But there is a big difference between someone who steals a coat to stay warm in the winter months and someone who steals a coat to turn around and sell it as a business, taking advantage of someone else’s hard work,” he gavQe as an example. So in such a scenario, when a defence lawyer approaches a prosecutor and explains the accused’s background and circumstances, then plea bargaining is a way through which justice and mercy can be implemented at the same time. “The prosecutor might say, ‘Okay you know what? I think that is a fair persuasive piece of mitigating evidence and I am willing to extend a measure of mercy to your client while at the same time making sure that justice is served.’ So we engage in this process of balancing justice and mercy which is really the essence of pre-negotiating (plea bargaining),” DiReda said. David Nary, an experienced prosecutor from Los Angeles, among other things, spoke about the need to have enough communication and consultations among the prosecutors in order to make sure that the plea bargain deal is fair. He recommended that the prosecutors set up guidelines that will be followed for fair plea bargain offers. Scott Leist, an American defence attorney currently based in Kampala, Uganda, referred to plea bargaining as a powerful and incredibly effective tool that can do “unbelievable things in terms of reducing backlogs, and making justice happen more quickly.” However, he noted that it has risks, among which, it can trigger uninformed decisions. “When I go to a client and they are sitting in jail and have been there for a long time, and I say to them: ‘the prosecution is making an offer,’ there is an enormous amount of pressure on that person to say yes,” he said. The plea bargain rollout will begin with a pilot phase in five intermediate courts: Gasabo, Nyarugenge, Gicumbi, Muhanga, and Musanze, before it gets scaled up to more.
