Reducing judicial and prosecutorial case backlog

Kgosietsile Ngakaagae | Friday March 15, 2019 13:46

Progressive nations have realised the folly of such flawed thinking. The end of every prosecution must be to ensure that the attention of the defaulter is focused on his wrong, often through an appropriate and condign sentence, and that repair work is done to complainants to the extent that the harm or damage can be fixed.

I work the courts almost literally everyday. It would not surprise you to know that cases as old as 10 years are still being prosecuted at enormous public expense, all because the prosecution is focused on achieving a possible prison term. The DPP has wide powers in terms of when, if at all, to plea bargain or not to prosecute.

But no, DPP has until now, used such discretion to no significant end. When I left the department nine years ago, the unwritten prosecutorial policy was still that someone had to go to jail. Prosecution was an end in itself. As a result the prosecutorial policy had and still has no human face and does not aid the administration of justice.

I am of the firm belief that the backlog that prosecutors face today both at the DPP and at the Police Service is altogether needless. At least 50% of it can be dealt with through carefully guided plea bargaining, especially with regards to first offenders and old cases of more than three years.

Prosecutors need to be given fair discretion to engage with defence lawyers and accused persons on both questions of guilt and sentence. The latter may require statutory reform, but the former is well within the writ of the DPP. It is just that no one is prepared to think outside the box. We are just too  content with playing old records and complaining to Cabinet about prosecutorial backlog.

A man accused of grievous bodily harm must be able to plead to actual bodily harm after the lapse two years where the delay in the prosecution is not attributable to him nor where the injury did not result in permanent disfigurement, amongst others.

It all boils down to the enactment of a plea bargaining policy that will reduce the possibility of graft and abuse and further the ends of justice. Murder accused persons must have a clear option from the very onset whether they choose the route of an all out prosecution with the possibility of a death sentence at the end or whether they will choose the certainty of life without parole or some other mutually negotiated sanction which may be recommended jointly by the prosecution and the defence to a magistrate. Prosecutorial cruelty and tightlipped legalism should not and cannot be legitimate prosecutorial policy.

I can recall doing one case with a senior prosecutor many years ago involving several counts of corruption. The circumstances were such that my client was swimming against the tide and if found guilty, stood the risk of a prison sentence. The case had delayed by many years and indications were that it would be years before we saw its end. Out of the three counts my client faced, the prosecution was strong on at least one count. The others were fair game. On engaging with the prosecutor, it was agreed that perhaps my client could plead guilty on one count, and have the other two dropped. He could then offer compensation on what was allegedly earned from the alleged crime. I considered the position carefully and advised the client that it was in his best interest to do so. We changed plea, had two counts dropped and at the next sitting, the case was over. We of course mitigated heavily in a bid to avoid a prison sentence and tendered compensation by agreement. A case that took many years came to a close in an instant because common sense finally prevailed. If only we had had the fortitude to proceed that way from the beginning the magistrate and clients would have been saved a lot of time resources.  But the trenchant winner takes all unwritten prosecutorial policy had always stood on the way. Mine was a lucky case because I was dealing with a very senior prosecutor who was not only confident about the law but was prepared to act in own best judgment as a lawyer. Junior lawyers and police prosecutors are simply scared of taking such decisions.

After two years of case stalling because a magistrate got pregnant or transferred or because prosecutor went for postgraduate studies -where one is a first offender – an accused should be able to plead guilty to a possession offence as opposed to a substantive offence with a minimum mandatory imprisonment term. On this note I add that there is a need to add the option of fines to more criminal offences in order to give judicial officers more latittude and sentencing options. Cruelty is not justice?

When he was Attorney General, the now Justice Kirby was warm to plea bargaining. I can only hope that the present DPP sees the need to proceed in that direction in the interest of justice. He present system is belongs to the museum.