Plea bargaining: Plot thickens as CAG recommends further probe

Dar es Salaam. The Controller and Auditor General (CAG) Charles Kichere has recommended the formation of an investigation team over suspected mismanagement of the plea bargaining agreements.

Introduced in 2019, the system allows prosecutors to offer defendants in criminal cases the opportunity to negotiate for their freedom in exchange for cash payments.

The plea bargaining system was introduced as a way to reduce case backlogs and prison congestion and ensure the timely delivery of justice.

However, in the latest audit report, the CAG revealed that the former director of public prosecution (DPP) and their officials had mismanaged the agreements and violated procedures in arresting, prosecuting, and handling the plea bargaining cases.

“These violations demonstrate a lack of accountability and transparency, which call for further investigation into possible misconduct and abuse of power,” said Mr Kichere in the special audit findings on the procedures and management of plea bargaining agreements.

“I recommend that the appointing authority of the former Director of Public Prosecutions form an independent commission to examine possible misconduct and abuse of public office in the plea bargaining process,” Mr Kichere said, adding that the commission should investigate claims of coercion and breaches of the Criminal Procedure (Plea Bargaining) Rules.

According to him, some 352 plea bargaining cases occurred across the Tanzanian mainland between July 1, 2019 and March 31, 2022.

In these cases, 893 defendants signed 380 agreements and agreed to pay a total of Sh219.13 billion.

However, only Sh55.87 billion was deposited into the DPP’s plea bargaining account, including Sh45.51 billion in compensation for the defendants’ crimes, Sh2.11 billion in court fines, and Sh8.26 billion in payments made without plea bargaining agreements.

Breach of agreements

According to the report, defendants in 102 cases had breached the agreements as they failed to pay compensations worth Sh170.61 billion by March 2022.

The CAG stated that the DPP has not taken appropriate measures to enforce the collection of the outstanding amounts from the defendants or filed applications to seize their assets for compensation purposes, as required by law.

“This lack of enforcement by the DPP exacerbates the issue and highlights the need for more rigorous follow-up and legal action to ensure that the defendants fulfil their obligations under the plea bargaining agreements and court judgements,” the report states.

Non-compliance with the accounting process

The report indicates that three defendants had paid Sh328.53 million into the plea bargaining account despite their cases having been resolved through the normal judiciary process.

The CAG also states that the DPP received Sh1.62 billion from a beneficiary of an economic sabotage case, even though there was no pending case, plea bargain agreement, or court order.

“I also found that Sh6.10 billion had been seized and confiscated from four defendants involved in corruption, pyramid scheme cases, and failure to declare income sources, and deposited this amount into the plea bargaining bank account instead of the asset forfeiture account,” Mr Kichere stated.

According to the report, the DPP collected Sh2.11 billion in court fees from 170 cases decided by the Judiciary, but instead of paying the fees to the Judiciary as required, these fees were paid into the plea bargaining bank account.

As of March 2022, the balance of the plea bargaining account was Sh13.20 billion, but the audit revealed that a total of Sh10.16 billion was paid into the account without being related to the plea bargaining process.

“This discovery implies that the plea bargaining process was not being managed in compliance with the established guidelines and procedures,” states the report.

Violations

The audit also uncovered possible misconduct and abuse of power, including the unauthorised seizure of Sh1.5 billion in compensation payments and the unlawful prosecution and detention of three defendants for tax offences outside their duties. It was also discovered that there was a suspected case of document forgery in plea bargaining agreements.

The CAG also revealed that he conducted interviews with the defendants, who claimed to have been coerced to write and sign letters of intent, found in their reviewed case files.

“This indicates that there was a violation of the rules of the Criminal Procedure (Plea Bargaining), raising concerns about the transparency and fairness of the plea bargaining process. The violations of the accused’s rights occurred during the arrest, prosecution, and handling of cases that were concluded through plea bargaining,” the report states.