Distressing times lie ahead for some wealthy Kenyans. The Goldenberg judicial commission of inquiry is coming to a close in a climax that is exploding the reputations of “prominent businessmen”. The Director of the Kenya Anti-Corruption Commission and his deputies are expected to be appointed this month and according to the ministry of Justice and Constitutional Affairs, the new executives will take the fight against graft to the second phase-prosecutions.

The anti-graft commission will have its own team of ace investigators and prosecutors. Tested, vetted and liberally remunerated, they will be expected to send people to jail and send the message to all that corruption does not pay. A very high rate of convictions is one key objective.

But in the normal course of public prosecutions, more cases are lost than won. In some jurisdictions, it is estimated that over 60 per cent of all the criminal cases brought by the public prosecutor are dismissed by the courts. No estimates have been published but as of today, not a single significant corruption conviction has been made since 1997, when the now defunct Kenya Anti-Corruption Authority was established. Many of the prosecutions are still tied up in the legal system.

Few countries, including poor ones like Kenya, can afford to employ enough investigators, prosecutors and judicial officers to run an efficient and effective law enforcement system. Every case, however small, ties up a prosecutor, two detectives and one judicial officer. Because of the prohibitive costs of providing sufficient infrastructure, criminal cases have to be pushed through a badly equipped system. The result is that prosecutions are rarely successful. Cases are taken to court before they are thoroughly investigated to create room for the investigation of new complaints. During prosecution, the police lack the time and personnel to follow up on all witnesses and compel them to attend court. When suspects jump bail, they are rarely tracked down.

Will the new anti-graft commission fare any better? The Criminal Investigations Department is swamped with investigations from past corruption complaints. New cases are coming up every day. Yet, all the cases are touching only top politicians and business people. Middle and low level corruption cases are yet to be addressed.

One way the United States has been able to decongest its criminal prosecution system is through the “plea bargain”. Simply defined, it is an agreement entered into between the state and a criminal suspect where the case is settled without a trial. The accused agrees to plead guilty to the offence, or a lesser one, in exchange for s lenient sentence. Sometimes, the accused is required to confess and make reparations.

Guilty verdict in a case that would have otherwise been lost

Plea bargaining has several advantages, quite apart from expediting the criminal process. It brings to law enforcement a certainty of results that usually lacks in a criminal trial. The burden of proof paced on a prosecutor (beyond reasonable doubt), coupled with the technical nature of criminal law, is usually insurmountable in many trials. A plea bargain assures a guilty verdict in a case that would have otherwise been lost, though the accused does walk away with a less severe sentence than he deserves.

By decongesting the law enforcement system, plea bargaining enables prosecutors to concentrate on the few significant cases where severe punishment is required. In corruption cases, junior government officers who were bribed with small sums are allowed to plea-bargain so that the prosecution may concentrate on putting the senior officers in jail.

At the same time, by plea bargaining, the prosecution is able to secure the cooperation of such junior officers to testify against their seniors. In a corrupt transaction, a bargain given to the lesser players on condition that they help in the prosecution and conviction of the major players.

But dangers lurk in the process. Sometimes, plea bargaining itself becomes an avenue for corruption. The leeway granted to investigators and prosecutors to plea-bargain could be used by the same prosecutors to enter into corrupt transactions with suspects. It is also accused of subverting the due administration of justice by making the outcome of an investigation dependent on the negotiation skills of the accused’s lawyer other than the strength of the evidence and the court’s conscience. In other cases, it is thought to encourage the people to plead guilty to offences they have not committed, rather than deal with the uncertainties of trial.

But its proponents say that the evils that come with its practice are far outweighed by the benefits. The American criminal law administration has in fact become so reliant on it that it is said that the system would cease to function if plea-bargaining was stopped. Some researchers estimate that 90 percent of all convictions in the US are obtained through the system.

While most other countries detest the practice, it is said to be slowly creeping into each country. In Kenya, although it is not legally allowed, it is widely practised in murder cases, where the criminal suspects agree to admit to charges of manslaughter rather than risk the death sentence. The Attorney-General’s office often agrees to this arrangement where there is a real risk of the suspect being acquitted on the murder charges.

The Criminal Procedure Code also adopts the spirit of plea bargaining in Section 176 where it says: “In all cases, the court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any other offence of a personal or private nature not amounting to felony, and not aggravated in degree, on term of payment of compensation or other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated.”

If adopted in corruption prosecutions, plea bargaining will enable the state to enter into agreements with accused people, by which suspects agree to pay back monies or property corruptly obtained in exchange for lenient sentences. It will also enable the state to secure the cooperation of employees and junior government officers in the prosecution of the “real” beneficiaries of corrupt deals. And as the successful detection of corruption often depends on insider information, a promise of leniency will encourage participants to blow the whistle on co-suspects.

Legal scholars have suggested many ways of dealing with the weaknesses of plea bargaining. One is to grant courts more influence in the type of bargain entered into. In doing so, the public interest I every bargain is protected and the possibility of corrupt collusion between prosecutors and the accused people is eradicated. The courts could also be given the role of supervising the accused’s compliance with the terms of the bargain. A remnant power would rest with the judicial officer to revert to a severe sentence where the accused person fails to comply as required.

Many cases that would bog down the criminal prosecution system can thus be dealt with speedily and conclusively. Convictions will be better assured in the significant cases. Without plea bargaining, the 60 per cent failure rate in public prosecutions will remain and the fight against corruption will fail.