Malawi is the only southern African country without guidelines on plea bargain in criminal matters despite the law providing the same.
Zambia, South Africa, Tanzania and a host of members of the Southern African Development Community (Sadc) have enacted rules on plea bargain.
This is going to change the justice system.
Malawi is conducting a pilot project on plea bargain, starting with homicide offenders at Maula Prison.
Plea bargain allows accused persons waive their right to trial in exchange for a lenient sentence or lesser charge than the courts would have imposed had the accused been found guilty following a trial.
In the US, 90 percent of the criminal cases are settled at plea bargaining, an essential component of the administration of justice.
In Malawi, Section 252 of the Criminal Procedure and Evidence Code sanctions plea bargain opportunities.
However, the country lacks the necessary guidelines.
In determining the Republic v Oswald Lutepo case, the court makes it clear that plea bargain must be favoured and encouraged because it speeds up the delivery of justice and is less costly.
Plea bargaining takes away the costs billed in a full trial and allows the victims to have a say in the administration of justice.
However, critics argue that the procedure they despise as a charge bargain does not reflect the correct crime committed by the accused.
To them, a plea bargain denies the public fair participation in the trial since it is negotiated at the table away from the public.
Negotiating your own punishment does not deter hardcore and would-be criminals, the argument goes.
Despite the advantages and disadvantages of plea bargain, overcrowding in the country’s prison makes it a step in the right direction.
Malawi needs a clear plea bargain system more than some of our fellow Sadc countries. It is therefore a step in the right direction that such a pilot project has been initiated.
The project underway will include accused persons pleading guilty to lesser offences or only one or two more charges.
However, a prosecutor has to obtain views of the victim to take into account the interests of the complainant or members of the family.
The plea bargain agreement has to be in writing, containing information as may be required by rules of court practice issued by the Chief Justice.
Additionally, the written deal should be sanctioned by the Director of Public Prosecutions.
Before the agreement, the court is required to inform the accused his or her right to a fair trial and that every accused person is innocent until proven guilty by a competent court.
Otherwise, the accused have the right to remain silent and are not compelled to incriminate themselves.
Plea bargaining does not undermine the right to a full trial.
During the project, there will be a judicial officer, the public prosecutor and the defence.
Prison authorities will prepare a cause list of all murder-related inmates who are ready for a plea bargain.
The list will be given to the defence, the State and the court.
The State will ensure that it has provided all disclosures and review the docket to come up with a proper sentence based on the evidence.
During the project, parties will make offers to the court and judicial officers will guide the parties to ensure procedural fairness as they figure out whether to accept or re-negotiate the offer.
Courts cannot impose a sentence contrary to agreement. Once it is done, the agreement is put in writing.
If successful, the project being trialled at Maula Prison will usher in an era of plea bargain in criminal cases to decongest prisons and speed trial amid a growing backlash that delays to pass judgement have created a backlog of cases choking the country’s courts.
