A CRITICAL ANALYSIS OF THE ROLE OF PLEA BARGAIN IN FOSTERING

JUSTICE AND HARMONY IN UGANDA.

INTRODUCTION.
The concept of plea bargaining is a relatively new concept in Uganda's criminal

procedure system and the Judicature (Plea Bargain) Rules1, define plea

bargaining as the process between an accused person and the prosecution, in which

the accused person agrees to plead guilty in exchange for an agreement by the

prosecutor to drop one or more charges, reduce a charge to a less serious offence, or

recommend a particular sentence acceptable to the accused subject to approval by

Court. In other words, Plea bargains involve compromise, whereby the accused agrees

not to take his or her case to trial and the prosecution also agrees to a less severe

punishment than the law might allow. It also suffices to mention that it is not every

criminal case that should be prosecuted to finality through a trial if it can be resolved by

alternative means.2

It must be noted that the most eminent explanation usually offered for the inevitability

of plea bargaining is the theory of case load pressure which is literally reflective of the

idea that plea bargaining is essential to clear case backlog without the enormous costs

and delays which would be generated if the system relied on trial alone 3 To further

buttress the above point, The Judicature (Plea Bargain) Rules, 2016 are primarily

designed to obviate lengthy hearings thereby enabling our criminal justice system to

1
Rule 4 of The Judicature (Plea Bargain) Rules 2016
2
Director Public Prosecutions Noordin Haji in regards to plea bargaining during a recent workshop in Mombasa.
3
Uganda Vs Kanyamunyu page 23 of the Judgement. Misc. Criminal Application No. 151 of 2020

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cope with an ever increasing number of registered criminal cases and in order to avoid

growing backlog of pending cases and furthermore to promote efficiency which is of

great benefit to society.4

A similar proposition for fighting case backlog was espoused by Posner (2003) who

emphasized the notion that plea bargains save resources for the prosecutor, which

ultimately drives sentences up.

Nevertheless, Rule 3 of The Judicature (Plea Bargain) Rules, 2016 , states the

overall objectives of plea bargaining as being; - (a) to enhance the efficiency of the

criminal justice system for the orderly, predictable, uniform, consistent and timely

resolution of criminal matters; (b) to enable the accused and the prosecution in

consultation with the victim, to reach an amicable agreement on an appropriate

punishment; (c) to facilitate reduction in case backlog and prison congestion; (d) to

provide quick relief from the anxiety of criminal prosecution; (e) to encourage accused

persons to own up to their criminal responsibility; and (f) to involve the victim in the

adjudication process.

Be that as it may, Plea bargain also enables the accused to benefit by way of; having

opportunity for a more lenient sentence5 than if convicted at trial, trade risk of chances

of acquittal at trial for certainty, avoiding the stigma of a public trial and the attendant

4
Frank H. Easterbrook, Plea Bargaining as Compromise, at 103, col. 1
5
ttp://www.lawteacher.net/constitutional-law/essays/plea-agreements-and-constitutional-rights.php

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media attention, avoiding undue anxiety by resolving the issue as quickly as possible

and

moving on, avoiding expense and exposure that can be exceptionally draining on an

accused since the longer a trial takes, the more expensive it tends to be.

CRITICISM OF PLEA BARGAIN IN UGANDA.

The concept of plea bargain has been largely criticized for derogating from the right to

a fair hearing i.e., “audi alterm pattern” which is a natural law principle that predates

right from the biblical time of Adam and Eve where God himself carried out a full

hearing before convicting Adam and Eve.

In the same premise, its vital to note that The Judicature 6 are predicated upon a

determination that the constitutional right to a fair trial may be waived in exchange for

inducements such as a reduction in the charge or sentence. In other words, the

objectives of plea bargaining envisage the right of the accused to a speedy trial but on

the alternative, they raise a general concern as to whether the accused enters into a

plea bargain and pleads guilty to the charged offence voluntarily and more so without a

fact-finding or investigating mechanism. To further buttress this point, plea bargain has

been criticized for essentially being more concerned with what the outcome should be

after a person has admitted committing an offence, rather than address the question

whether the accused is “guilty” of the crime or not.

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Judicature Plea Bargain) Rules, 2016
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Furthermore, critics of plea bargaining aver that innocent accused persons may

rationally prefer a specified lenient sentence to the risk of a much harsher sentence

resulting from

a wrongful conviction7 at trial an aspect that makes it inconceivable that plea bargain

actually ensures that the wrong suspects are convicted whereas the right suspects are

left scot-free. This may be due to insurmountable coercive circumstances such as the

pursuit of expedited release or escape from pretrial indeterminate detention which is a

common practice in Uganda. In one ominous and rather dramatic depiction, a critic

likened plea bargaining to torture, and suggested that both methods evolved for the

sole purpose of eliciting confessions8

Plea bargain has also been criticized for undermining the ability to fairly and

consistently punish the deserving. By effectively allowing guilty parties to bid for

sentences, plea bargaining creates inconsistency in the punishment accorded to parties

guilty of the same crime9

Plea bargain has also been criticized for creating grave implications for the justness of

the criminal justice system since in many cases the success of the negotiation may

depend upon personal attributes or financial resources which further creates

tremendous potential for systemic socio-demographic discrimination. It has also been

argued that when plea bargaining is absent, concessions are more likely to be based on

moral desert than on any financial or personal factors. 10

7
Michael Kinsley, Why Innocent People Confess, at 24, col. 2. 2
8
Id. at 25, col. 2 (citing John Langbein, Torture and Plea Bargaining).
9
Frank H. Easterbrook, Plea Bargaining as Compromise.
10
Albert Alschuler, The Changing Plea Bargaining Debate, at 118, col. 1
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Critics of Plea bargain also cast serious doubt on the notion that those who accept deals

usually deserve less punishment or become better people than those convicted after

trial11

CHALLENGES FACING THE PLEA BARGAIN PROCESS AND

RECOMMENDATIONS THERETO.

It must be noted that there is still considerable resistance to the use of plea bargaining

from magistrates, judges, prosecutors, advocates and the general public some of whom

look at the practice as deal cutting and the same is not an exception to other parts of

the world.12 . We therefore recommend for the organization of more workshops and

seminars in a bid to enlighten members of the legal profession and the general public

on the legality of plea bargains.

In the same premise, Plea bargains are sometimes viewed as agreements done behind

the scenes or in secret. However, they are not because they must be in writing and the

judges review them and then go over them in open court. We therefore call for more

sensitization of court users on the legality of plea bargain.

Another challenge is that Plea bargain agreements are not necessarily binding on the

court and the judges or magistrates still retain the final determination of the terms in

the agreement. In otherwards, when a court refuses the plea, then the case has to

proceed on to a full trial. We therefore recommend that courts should only refuse plea

11
Alschuler, at 662-67 (Plea on Judicial Determination of Sentence
12
Alexander Muteti, D.P.P Mombasa County
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bargaining agreements which deal with very grievous felonies or where the suspects

don’t show reform during the court process.

It is also important to note that some suspects continue to mistake plea bargain as a

pardon or amnesty which leads to a miscarriage of justice. We therefore recommend

that more sensitization is carried out by Justice Law and Order Sector institutions in

prisons about the implications of plea bargaining.

We also recommend that plea-bargaining is allowed once and for first time offenders on

a particular charge as this will prevent the continued abuse of the practice by

continuous offenders.

CONCLUSION

In light of the analysis above, it is my humble submission that Plea bargaining is a

necessary evil in Uganda’s criminal justice system and without it our overburdened

criminal justice system would definitely grind to a halt as it is basically insufficient in

dealing with the overworked prosecution and the rising crime rates. Nevertheless, Plea

bargaining law is not the only panacea as it cannot absolutely solve the problem of

backlog of cases but it can reduce the severity considerably. Be that as it may, to a

smaller extent, plea bargaining derogates the principle of fair hearing in Uganda which

is a non-derogable right under the 1995 Constitution of Uganda when suspects are

convicted without full trials being conducted as earlier discussed above.

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 BIBLIOGRAPHY

BOOKS.

1. Adam R., Plea Bargaining: An Unnecessary evil, Criminal Justice,

Foundations for economic Education, 1996

2. Frank H. Easterbrook, Plea Bargaining as Compromise, col. 2

3. Albert Alschuler, The Changing Plea Bargaining Debate, col. 2.

4. Archibold R, (2005), Criminal pleading, Evidence and Practice, Sweet and

Maxwell, 2005.

5. Michael Kinsley, Why Innocent People Confess, col.

6. W Friedman, Legal Theory (fifth edition, Universal Law Publishing Co Pvt Ltd

7. Russell D. Covey, Fixed Justice: Reforming Plea Bargaining with Plea Based

Ceilings, Tulane L. Rev. 1237, 1259 (2008

ARTICLES.

1. Katz et al, Justice is the crime; pre-trial delay in felony cases, the press of Case

Western University (1972) Cleveland and London.

2. John Langbein, Torture and Plea Bargaining.

STATUTES.

1. The 1995 Constitution of Uganda As Amended.

2. Judicature Plea Bargain) Rules, 2016

CASES.

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1. Uganda Vs Kanyamunyu page 23 of the Judgement. Misc. Criminal Application
No. 151 of 2020

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