Plea bargaining in Malawi Cashgate context: It takes a thief to catch a thief

Media reports about Cashgate suspects who have pleaded guilty and implicated other suspects have divided public opinion on the legality and role of plea bargaining in criminal justice. While this problem has attracted public attention in the context of Cashgate and its political implications, it is a longstanding legal problem in Malawi.

In this column we comment on the legality of plea bargaining. We follow this issue up in next week’s column with an assessment of the potential benefits and dangers of plea bargaining and a discussion of how its potential benefits can be accentuated and potential dangers alleviated, if not avoided.

A plea bargain is an agreement between the prosecutor and the accused in a criminal case on how the matter should be dealt with. This often involves an agreement that the accused pleads guilty to a lesser charge which carries a lighter sentence or to the same charge with a recommendation of a possibly lighter sentence than if the accused were to be found guilty after a full trial.

Such an agreement means that the accused escapes the possibility of conviction on the more serious charge subject to certain conditions which in some cases includes that the accused must testify against a co-accused who is likely to be charged with a more serious offence or is seen as having played a more crucial role in the commission of offence charged. It could also mean that the accused is sentenced to a lighter sentence than would have been warranted.

However, plea bargains are not binding on a court, although courts have to take them seriously where the law allows this practice if their intended aims are to be realised.

The problem in Malawi is that plea bargains are taking place in a legal vacuum. Although the law does not prohibit plea bargaining, there is no legal framework that regulates this practice. In fact, until 2010, the law was completely silent on the matter although some provisions did appear to recognise some form of plea bargaining.

The absence of an explicit regulatory framework did not prevent the state from entering into plea bargains with the accused. The prosecution typically entered into plea discussions with the accused in cases where the accused desired to plead guilty. The state could, at the beginning a trial, also intimate that it would not offer any evidence against a particular suspect if it wished to use him or her as a witness against other co-accused once the court had entered an acquittal. There have also been instances where the state has charged a suspect with a lesser offence, when the evidence clearly established a more serious offence, with a view to using the person as a witness in other cases.

These practices suggest that the State has always been able to use plea bargaining in the prosecution process as part of prosecutorial discretion. The trouble with unregulated discretion is that it can be abused and can undermine accountability.

As part of efforts to address this gap, the law now specifically gives the Chief Justice authority to make rules that ‘shall permit’ plea bargaining. Since these rules are yet to be issued, it can be said that there is still no legal framework regulating plea bargaining in Malawi. It is in this context that Director of Public Prosecutions (DPP) issued plea bargaining guidelines in May this year.

While they promote transparency and accountability, these guidelines have a tenuous legal basis since the law has empowered the Chief Justice to promulgate such guidelines. One way of looking at the DPP’s guidelines is to see them as internal guidelines governing the exercise of prosecutorial discretion. Seen in that context, plea bargains have no legal status before a court.

In view of the fundamental legal issues plea bargains raise (discussed in next week’s column), we argue that the rules governing plea bargaining should be set out in primary legislation and not subsidiary legislation. The current law authorising the Chief Justice to promulgate rules on plea bargaining does not provide any primary rules and principles which the rules so promulgated are expected to elaborate. This means that any rules the Chief Justice promulgates will most likely be ultra vires as they will entail substantial new law making and not mere substantiation of existing primary laws.

• The author Danwood Chirwa is a Malawian professor of law
  

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