Plea Negotiations and Agreements [No. 20 of 2010 277
THE PLEA NEGOTIATIONS AND AGREEMENTS ACT, 2010
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Short title and commencement
Interpretation
Declaration of certain existing rights
PART II
PLEA NEGOTIATIONS
Plea negotiation
Exercise by public prosecutor of certain powers
Legal representation
PART HI
PLEA AGREEMENTS
Plea agreement
Victim to be informed of plea agreement
Public prosecutor to notify court of existence of plea agreement
Court not bound by plea agreement
Matters for consideration of court before accepting plea agreement
Refusal by court to accept plea agreement
Effect of accepting plea agreement
Accepted plea agreement to form part of record
Withdrawal from plea agreement
Admissibility of plea agreement, etc.
Sealing of records of plea negotiations
Obligation for secrecy
Grant of legal aid
PART IV
GENERAL PROVISIONS
Regulations
SCHEDULE
Copies of this Act can be obtained from the Government Printer,
P.O. Box 30136, 10101 Lusaka. Price K5000 each.
Plea Negotiations and Agreements [No. 20 of 2010 279
GOVERNMENT OF ZAMBIA
ACT
No. 20 of 2010
Date of Assent: 13th April, 2010
An Act to provide for the introduction and implementation
of plea negotiations and plea agreements in the criminal
justice system and for matters connected with, or
incidental to, the foregoing.
[I 6th April, 2010
ENACTED by the Parliament of Zambia. Enactment
PART I
PRELIMINARY
This Act may be cited as the Plea Negotiations and
Agreements Act, 2010, and shall come into operation on such date
as the Minister may, by statutory instrument, appoint.
In this Act, unless the context otherwise requires —
"court" means a High Court or a subordinate court;
"legal practitioner" has the meaning assigned to it in the Legal
Practitioners Act; Cap. 30
"plea agreement" means an agreement made pursuant to section
four;
"plea negotiation" means any negotiation carried out between
an accused person or the accused person's legal
representative, and a public prosecutor in relation to the
accused person pleading guilty to a lesser offence than the
offence charged or to one of multiple charges in return for
any concession or benefit in relation to which charges are
to be proceeded with;
"public prosecutor" has the meaning assigned to it in the Criminal
Cap. 88
Procedure Code; and
"victim" in relation to an offence, means a person who has
suffered actual physical bodily harm, loss of any kind,
mental illness or mental shock as a direct result of an act
or omission involved in the offence.
Short title
and
coinmeneanent
Interpretation
280 [No. 20 of 2010 Plea Negotiations and Agreements
Declaration
of certain
existing
rights
Cap. I
3. (1) Nothing in this Act affects the right of an accused
person to plead guilty to a charge without entering into any plea
negotiation or a plea agreement.
(2) Except as expressly agreed by a public prosecutor in a
plea agreement, nothing in this Act affects the powers conferred
upon the public prosecutor under the Constitution or any other
written law.
Plea
negotiation
Exercise by
public
prosecutor
of certain
powers
PART II
PLEA NEGOTIATIONS
4. (1) Subject to section six, where a public prosecutor
considers it desirable in any case, or where the circumstances of
the case so warrant, the public prosecutor may, at any time before
judgment and in accordance with the provisions of this Act, enter
into a plea negotiation with the accused person for the purpose of
reaching an agreement in accordance with the provisions of
subsection (3), for the disposition of any charge against the accused
person.
An accused person may, at any time before judgment and
in accordance with the provisions of this Act, enter into a plea
negotiation with a public prosecutor for the purpose of reaching an
agreement in accordance with the provisions of subsection (3), for
the disposition of any charge against the accused person.
An agreement under subsection (1) shall require that—
(a) the accused person undertakes to-
make a guilty plea to an offence which is disclosed
on the facts on which the charge against the
accused person is based; and
fulfil the accused person's other obligations
specified in the agreement; and
(b) a public prosecutor, having regard to the accused person's
undertaking under paragraph (a) agrees to-
take a course of action consistent with the exercise
of the powers specified in section five; and
fulfil the other obligations of the State specified in
the agreement.
5. The powers of a public prosecutor referred to in
subparagraph (i) of paragraph (b) of subsection (3) of section four
are to-
Plea Negotiations and Agreements [No. 20 of 2010 281
withdraw or discontinue the original charge against the
accused person; or
accept the plea of the accused person to a lesser offence,
whether originally included or not, than that charged.
6. (1) Notwithstanding any other provision to the contrary in
any other law, a public prosecutor shall, before commencing any
plea negotiation, inform the accused person of the accused person's
right to representation by a legal practitioner of the accused person's
choice and of the right to apply for legal aid in respect of the
negotiations.
(2) Plea negotiations shall be held by a public prosecutor with
the accused person only through the accused person's legal
representative.
Legal
representation
PART HI
PLEA AGREEMENTS
7. A plea agreement that is brought before a court shall — Plea
be in writing; agreement
contain the information set out in the Schedule; and
(c) be signed by a public prosecutor, the accused person and
the accused person's legal representative in each
other's presence.
8. (1) Subject to section seventeen, where a plea agreement
is concluded, a public prosecutor shall, where applicable, and unless
otherwise required by compelling reasons in the interest ofjustice,
as soon as is reasonably practicable, inform the victim -
of the substance of, and reasons for, the plea agreement;
and
that the victim is entitled to be present when the court
considers the plea agreement.
(2) Where the victim has died or is incapacitated, a public
prosecutor shall communicate with a member of the victim's
immediate family or authorised representative in respect of the
matters set out in subsection (I ).
9. (1) A prosecutor shall in open court or on showing of
good cause in chambers -
before the accused person is required to plead; or
at any time after arraignment;
inform the court, as the case may be, of the existence of a plea
agreement.
Victim to be
informed of
plea
agreement
Public
prosecutor
to notify
court of
existence of
plea
agreement
282 [No. 20 of 2010 Plea Negotiations and Agreements
Court not
bound by
plea
agreement
Matters for
consideration
of
court before
accepting
plea
agreement
Refusal by
court to
accept plea
agreement
Effect of
accepting
plea
agreement
(2) The court may, where the circumstances appear to so
require, question the accused person in order to confirm the accused
person's knowledge of the existence of a plea agreement.
A court shall not be bound to accept any plea agreement
except where the non-acceptance would be contrary to the interests
ofjustice and public interest.
A court shall, before accepting a plea agreement, make a
determination in open court that -
no inducement was offered to the accused person to
encourage the accused person to enter into the plea
agreement;
the accused person understands the nature, substance and
consequence of the plea agreement;
there is a factual basis upon which the plea agreement
has been made; and
acceptance of the plea agreement would not be contrary
to the interests of justice and public interest.
12. (1) Subsection (2) shall apply where, upon a determination
of the matters referred to in section eleven, the court decides that
acceptance of the plea agreement would be contrary to
the interests of justice and public interest;
the offence for which the accused person is charged is
not disclosed on the facts; or
(c) there is no confirmation by the accused person of the
agreement or the admission contained in the agreement.
(2) The court shall, in the circumstances described in subsection
( 1 ) —
refuse to accept the plea agreement;
inform the public prosecutor of the decision and the reasons
therefor.
(3) The rejection of a plea agreement by a court shall not operate
as a bar to the conduct of any subsequent plea negotiation and the
conclusion of a subsequent plea agreement in respect of the same
case.
(4) The court shall, where it rejects a plea agreement under
subsection (2), proceed to try the accused person on the original
charge.
13. Where a plea agreement is accepted by a court, the
accused person shall be requested to plead to the new charge.
Plea Negotiations and Agreements [No. 20 of 2010 283
Subject to section seventeen, where a plea agreement has
been accepted by the court, the contents thereof shall be entered
on the record.
(1) The court may on its own motion, or upon application
by an accused person who entered into a plea agreement, allow
the accused person to withdraw from that agreement before
sentence, or to appeal against a conviction based on the agreement,
if—
the accused person entered into the agreement as a result
of an improper inducement;
the court determines that the public prosecutor has
breached the terms of the plea agreement; or
(c) the accused person entered into the agreement as a result
of a misrepresentation or misapprehension as to the
substance or consequences of the plea agreement.
(2) A public prosecutor may withdraw from a plea agreement
before sentence where the public prosecutor subsequently discovers
that the public prosecutor was in the course of plea
negotiations misled by the accused person or by the
accused person's legal representative in some material
respect; or
that the accused person was induced to conclude the plea
agreement.
16. Evidence of the following matters is not, in any civil or
criminal proceedings, admissible against an accused person who
entered into an agreement or is a party to any plea negotiations:
a plea of guilty which was later withdrawn or any statement
made in the course of any proceedings under this Act
regarding the plea of guilty; or
any statement made in the course of plea negotiations
with the public prosecutor which does not result in a
plea of guilty or which results in a plea of guilty that is
later withdrawn.
17. The court may, upon application, order that the records of
any plea negotiation or a plea agreement be sealed, where the
court is satisfied that the sealing of the records is in the interests of
the effective administration of justice.
Accepted
plea
agreement to
form part of
record
Withdrawal
from plea
agreement
Admissibility
of plea
agreement,
etc.
Sealing of
records of
plea
negotiations
284 [No. 20 of 2010 Plea Negotiations and Agreements
Obligation for
secrecy
Grant of legal
aid
18. (1) A person exercising any function under this Act shall
treat as secret and confidential, all information relating to a plea
agreement before it is presented to the court or consequent upon
the records thereof being sealed by the court.
Any person referred to in subsection (1) having possession
of, or control over, any document, information or record, who
communicates or attempts to communicate anything contained in
the document or record or any such information to any person
otherwise than in accordance with this Act or pursuant to a court
order, commits an offence and is liable, upon conviction, to a fine
not exceeding one hundred thousand penalty units or to imprisonment
for a period not exceeding twelve months, or to both.
Any person to whom information is communicated in
accordance with this Act shall regard and deal with the information
as secret and confidential.
(4) A person referred to in subsection (3) who at any time
communicates or attempts to communicate any information referred
to in that subsection to any person otherwise than for the purposes
of this Act, commits an offence and is liable, upon conviction, to a
fine not exceeding one hundred thousand penalty units or to
imprisonment for a period not exceeding twelve months, or to both.
19. Legal aid may be granted to—
any person who is detained at a police station or in a lock
up, correctional institution or other similar place; or
an accused person in respect of the conduct of any plea
negotiation under section four.
PART IV
GENERAL PROVISIONS
Regulations 20. (1) The Minister may, by statutory instrument, make
regulations generally for the purpose of giving effect to the
provisions of this Act.
(2) The Minister may, by statutory instrument, amend the
Schedule.
Plea Negotiations and Agreements [No. 20 of 2010 285
SCHEDULE
(Section 7)
CONTENTS OF PLEA AGREEMENT
The name and jurisdiction of the court in which the matter is held or to be
held.
The case number and file number.
The name, position, business address, business telephone and facsimile
numbers of the public prosecutor.
The name, position, business address, business telephone and facsimile
numbers of the defence counsel.
The proper name and alias, if any, and the last known address of the accused
person.
The original information or indictment shall be attached to the Agreement.
The draft information or indictment shall be attached to the Agreement.
The elements of the various offences to which the accused person is
pleading shall be set out.
A statement of facts may be attached and incorporated by reference. Any
document containing any promise, agreement, understanding or inducement
which forms part of the Agreement shall be attached to the Agreement.
A statement that the accused person was informed of, and has waived, the
following rights:
the right not to be compelled to give self-incriminating evidence;
the right to confront and cross-examine any witnesses against the
accused person; and
(c) the right to pursue pre-trial motions and appeal preliminary points.
A statement that the provisions of the Agreement are not binding on the
court.
Astatement of the rights of the accused person undertheAgreernent, including
the right to persist in a plea of not guilty.
The obligations of the accused person under the Agreement.
The obligations of the State under the Agreement.
A statement that the State is free to prosecute the accused person for any
other unlawful past conduct which is not the subject of the Agreement or
for which the accused person has not been acquitted or convicted, or any
unlawful conduct that occurs after the date of the Agreement.
A statement that the Director of Public Prosecutions may, in any case
where the Director of Public Prosecutions considers it desirable so to do,
discontinue at any stage before judgment is delivered any criminal
proceedings instituted or undertaken bythe Director of Public Prosecutions
or any other person or authority.
17. The grounds upon which an accused person may withdraw from the
Agreement.
286 [No. 20 of 2010 Plea Negotiations and Agreements
Consequences of any breach of the Agreement.
Provisions relating to a right of appeal.
A statement that the Agreement applies only to an offence committed by
the accused person with which the accused person is charged and has no
effect on any proceedings against the accused person not expressly
mentioned therein.
The date on which the Agreement was concluded.
That the Agreement becomes effective upon signature by the accused person,
the accused person's legal counsel and the public prosecutor, before a
court.
The following statement by the accused person:
"I have read this Agreement and carefully discussed each paragraph
with my legal counsel. I understand the terms of this Agreement and
agree to it without reservation. I voluntarily and of my free will agree
to these terms. I am pleading guilty to the following charge (s):
*(a)
(b)
My legal representative has advised me of my rights, of possible
defence, of the penalties and the consequences of entering into this
Agreement. No promises, agreements, understanding or inducements
have been made to me other than those contained in this Agreement.
No one has threatened or forced me in any way to enter into this
Agreement. I have had sufficient time to confer with my legal counsel
concerning this Plea Agreement. I am satisfied with the representation
of my legal representative in this matter.
*state as applicable
Signature of accused person
Name of accused person Date
24. The following statement by the legal practitioner representing the
accused person:
"I am the legal representative for
Name of accused person
I have read this Agreement and carefully discussed each paragraph of
this Agreement with my client. Further, I have fully advised my client
of my client's rights, of possible defences, of the penalties, and of the
consequences of entering into this Agreement. To the best of my
knowledge and belief, my client's decision to enter into this Agreement
is an informed and voluntary one.
Plea Negotiations and Agreements [No. 20 of 2010 287
Signature of legal practitioner
representing the accused person
Name of legal practitioner Date
representing the accused person
A statement whether the accused person communicated with a prosecutor through an
interpreter. If the accused communicated through an interpreter, a certificate by the
interpreter as to the accuracy of the interpretation during the negotiations and in
respect of the contents of the agreement shall be appended to the Agreement.
Such other provision as the Director of Public Prosecutions considers necessary or
desirable.
