Some lawyers have said plea bargaining has several benefits in the Administration of Criminal Justice in Nigeria.
The lawyers also noted that apart from managing the case loads in courts, plea bargain enhances the quick recovery of stolen assets and proceeds of crimes.
According to a Lagos-based legal practitioner, Josephine Ijekhuemen, the doctrine was imported from the American criminal justice system into our corpus juris.
She said the regulatory frameworks that introduced the concept of plea bargain in Nigeria include the Economic and Financial Crimes Commission (Establishment, etc) Act and the subsequent Administration of Criminal Justice Law (ACJL) of Lagos State, as part of efforts to recover stolen funds.
“Plea bargain is a novel practice. It became popular during the anti-corruption trials whereby certain individuals, mostly the elite, negotiated lesser sanctions,” she said.
Ijekhuemen, in a chat with the News Agency of Nigeria (NAN), described plea bargain as “an arrangement between prosecutor and defendant whereby the defendant pleads guilty to a lesser charge in exchange for a more lenient sentence or an agreement to drop other charges.”
The lawyer said the acceptance of plea bargain by parties in a matter should be in the public interest, the interest of justice and the need to prevent abuse of legal process.
She said though the idea was initially adopted to aid recovery of the country’s looted funds,”it now seems to encourage stealing rather than aid anti-corruption efforts when all a culprit gets is a slap on the wrist to return some funds.”
In her view, Nigeria is not yet ripe to adopt plea bargain as a system in its criminal justice, especially when it is not applied equitably.
But for Mr Abdul Ibrahim, SAN, it is necessary to apply plea bargain since it is already part of our administration of criminal justice system.
The senior lawyer said plea bargain is not only related to corruption cases, but could also be applied in other crimes.
“However, with reference to the corruption cases, I think it is not the plea bargain itself that is the problem. It is the operation of the plea bargain and how it is arrived at that is the problem,” he said.
According to him, take for instance, a man embezzled N5 billion and you asked him to return N2 billion.
“This is not too good. But if N5 billion is stolen, and you recovered N4.7 billion, leaving the others you cannot trace, I think this is all right.
“So it is the way and manner we go about it that is the problem and not the system itself.
“For example, the recent case was the federal pension director who was asked to pay about N750, 000 fine on plea bargain agreement with the prosecution at a lower court after he admitted misappropriating over N20 billion police pension fund.
“But the Court of Appeal later sentenced him to six years imprisonment and was ordered to return N22.9 billion to the Federal Government following an appeal by the EFCC,” he said.
Ibrahim, however, said that plea bargain, if well applied, saves the state the stress of prosecuting and all those problems associated with it.
“So it is the sincerity of it that counts, not just anyhow plea bargain.
“You will make nonsense of the practice if someone steals huge amount of money and you ask him to pay N200, 000.
“In that regard, it is no more a plea bargain but a compromise.
“So, it is just the operation that we need to look into if not, it is good for the system,” he said.
He said plea bargain could also be applied between individuals.
“For instance, if somebody was working for you and there was a criminal breach of trust. And at the end of the day, he used your money to build houses for himself and you discovered this.
“You can say instead of convicting the man, you enter into a plea bargain to return the houses to you.
“This has served some purposes because you can sell those houses and get part of the money,” he said.
Ibrahim, however, was of the opinion that in cases relating to cybercrime, popularly called, “Yahoo, Yahoo,” plea bargain should not be applicable.
“For Yahoo cases, if you ask me, I will insist that plea bargain should not be applied because this Yahoo menace is now becoming like a national anthem among the youths
“And the youths are the future of a country, so why should we allow the youths to get involved in such things.
“Let them learn to do honest work and be hardworking
“So plea bargain, for me as a person, I don’t agree that we should allow it in Yahoo cases.
“And if it is going to be allowed, only the first time offender should be considered, not for a serial offender who defrauded today and does same tomorrow.
“Don’t forget when you dupe somebody, the national image is also involved.
“So we must be selective in where and when to apply this instrument of the law
“We must, as a nation, be seeing to be serious,” the senior lawyer said.
He said it should not be used as a system to encourage corruption, or another way of acquiring wealth.
Ibrahim said plea bargain, if well applied, would reduce cost of prosecution, save time and energy and also help to reduce the docket of the court with unnecessary cases.
“Don’t forget that sometimes, our prosecutions do not do their work very well. So you see a case lasting for about 10 years or more.
“If for instance, with plea bargain, a case lasts within six months, the goal has been achieved.
“The bottom line is sincerity of purpose with the bargain and the need to discourage such conduct,” he said.
He said to get the best from its application, “there should be a committee set up for every plea bargain that is going to be entered into.”
He advised that such agreement should not be left for the prosecution and the defence to determine alone.
“A committee or a department should be created comprising of experts who will look at it before they agree on the terms considered to be fair enough,” he said.
Also speaking, Mr Afam Osigwe, SAN, said in every part of the world, where government is serious about fighting financial and economic crimes, plea bargain is one of the instruments adopted.
He said to avoid lengthy trials, parties could result to a plea bargain.
“So it is a way of fighting corruption, if you look at the number of cases before the court.
“Take for example former Governors, Dariye and Rev Nyame’s cases; imagine the EFCC had been able to reach plea bargain with them and they agreed to plea guilty to a lesser offence, the government would have benefited enough from the property and money they would have returned to the government and the government would have also secured a conviction.
“Although it might not have secured a type that many ordinary persons would have agreed to, it would have saved the state both time and resources put into prosecution of that matters
“Now, why I gave the two as example was that, after all the huge amount of money expended by both sides in prosecuting and defending the matters, the Federal Government later granted them a pardon,” he said.
According to Osigwe, there is nothing wrong with plea bargain, even the U.S. government resorts to it at times, and that way, the government rakes in a lot of money because the whole idea is to recover stolen wealth.
He, however, said that what Nigerians should be concerned about is how clear are the provisions of plea bargain.
The senior lawyer, however, expressed concern about the plea bargain provisions in the country’s justice system and how they are being made use of as a way of recovering ill-gotten wealth.
“I have my reservation about the provisions of plea bargain in the Administration of Criminal Justice Act (ACJA) which may have not been very well drafted and also not been carried out in a very transparent manner.
“Sometimes, they are carried out in a manner that leaves everyone in doubt as to whether they may not have been abused in the real sense,” he said.
He said if well applied, there was nothing wrong in plea bargain as a system of fighting financial and economic crimes because it would prevent prolong trial by reaching an agreement with the looter.
“I give you the example of the late Abdullahi Dikko, who was C-G of Customs.
“He entered a plea bargain agreement with the Federal Government and the Office of the Attorney-General of the Federation (AGF) agreed not to prosecute him and that he would return to government property worth billions of naira,” he said
According to Osigwe, this is an admission of guilt.
“So sometimes, it may be more pleasing to see that person (the looter) put away in a prison where some of them may even claim to be sick and serve our their sentence in a hospital bed.
“This has happened in the case of Cecilia Ibru after she pleaded guilty to fraud charges,” he said.
Osigwe, therefore, said that the bottom line was to have “the will to get some of these resources which are in the hands of some individuals who have stolen them from our common wealth.
“Emphasis should not only be laid on prosecuting them and getting them convicted but they should be able to bring out the money.”
The lawyer, who said plea bargain is a statutory provision, stated that the use of the instrument should be more transparent.
“You have to make it more transparent; the person (looter) must make full disclosure and the agreement must contain enough provisions such that if you discover that the person has not fully disclosed all the property or the proceeds of crime, the agreement will be severed.
“And we must show capacity in negotiating this agreement that we have the best interest of the society at heart.
“For example, you should not ask a man who stole N10 billion to refund N500 million just in the name of plea bargain.
“Again, the agreement should as much as possible be made public so that people can be able to scrutinise it and see how well it has been carried out in the interest of the society,” he concluded.
NAN reports that while the supporters of plea bargain argue that it speeds court proceedings and guarantees a conviction, the critics believe that it prevents justice from being served.
But whichever way we look at it, the will power of the judiciary to bring sanity in the system cannot be overemphasised.
But for Jubrin Okutepa, SAN, said his position before now was that plea bargain in the manner it was being operated was subject to abuse.
Okotepa said there were now defined guidelines and parameter on how people could observe plea bargain and its consequences as put up by the Presidential Advisory Committee Against Corruption (PACAC).
The PACAC was set up to scale up advocacy against corruption in private sectors and professional associations as part of efforts to fight corruption.
Okutepa said looking at the guidelines set up by the committee, it would work if there was a will power on the part of the state to push it through and also a will power on their part not to defeat the guidelines by not granting state pardon to the looters.
He called on states to put in place sufficient funds and technological materials that would nip in the bud some of the scientifically organised crimes in terms of money laundering and other corruption related offences.
He condemned the general saying that the plea bargain was a slap on the judiciary.
“Let me correct an impression; judiciary is not a prosecutor, it is not investigator but the judiciary only acts on the cases brought before it.
“So, if the states are serious about fighting corruption then the investigative apparatus must be strengthened, it must not use investigation as a source of income.
Also, Chief Mike Ozekhome, SAN, said plea bargain would save the government the money to prosecute and also save the accused the harassment of standing trials.
He said it was a way of saying that “the loot we have traced to your account, concede certain percentage of it to the government and you go with the rest’’.
“It is better to allow plea bargain to work in our system because a case on such can run for 10 years at the end of which government will lose the case and the looters will smile home with the loot’’.
Balarabe Musa, former Governor of the old Kaduna State in the second republic, described plea bargain as the height of corruption in the system which made the political leadership even more guilty.
Musa said in a civilised country a thief was supposed to be prosecuted and if found guilty, he should be punished in accordance with the law, “but unfortunately Nigerians have coined another way to escape punishment’’.
“Plea bargain is sending a wrong message that everybody is at liberty to steal and once you are caught the worst you can do is to plea bargain with the government or political leadership and in the end you would work away with something substantial.
“If this is not nipped in the bud it will eventually lead to the destruction of the society.
discretion on prosecution matters.
The judge said the claims by the anti-graft agency that it acted on an anonymous petition to commence its investigations “cannot override the discretionary powers conferred on the Attorney-General of the Federation by virtue of Section 174 of the Constitution.” Justice Dimgba also noted that since Attorney-General did not oppose the suit by Dikko, the AGF had subscribed to Dikko’s case.
These developments have once again resurrected the debate about the pros and cons of plea bargain and when the doctrine should apply in law.
For Bar Elias Offor, plea bargain introduces restitution in the criminal jurisprudence in a very awkward way. “Due to the way it is being practiced in Nigeria, it encourages graft even more. A case of gross misappropriation that warrants death penalty in some countries will be accorded remission by plea bargain where after, the culprit walks the road unperturbed. Plea bargain in the manner it is being practiced in Nigeria makes mockery of the country’s laws,” he declared.
The national welfare secretary of the Nigerian Bar Association (NBA), Bar Kunle Edu described plea bargain as a signed agreement between the prosecution and the defendants in a criminal trial. According to him, it is akin to filing terms of settlement in a civil case.
“The introduction of plea bargain into Nigeria’s criminal jurisprudence by the Administration of Criminal Justice Act and the domesticated versions in various States, is a welcome development,” he said, adding that it fast-tracks criminal trials and ensure that justice is done from a social obligation perspective.
His words: “It also reduces the cost of criminal prosecution. So, I see plea bargain as a win-win arrangement amongst the prosecutor, the defendant, the court and also the general public.”
Edu however, pointed out that it is the court’s approval of the terms of the bargain that gives it legal effect before it is made judgment of the court. “The trial court still has the power to consider if the terms of the bargain are reasonable, not against any law and public policy. There must also be free will of the parties in making it. Therefore, fraud, misrepresentation and undue influence once proven may vitiate a plea bargain already made judgment of a court and can be challenged on those grounds,” he explained.
Lagos lawyer, Osita Enwe believes that to effectively use plea bargain as a shield against prosecution, the plea and the bargain must have to occur after an arraignment in court. He added that any of such agreement was acceptable to the court. This, he said, is consistent with the public interest dimension in every plea bargain.
Citing section 14(2) of the EFCC Act, Enwe argued that the section allows the Commission to enter into a plea bargain with only an accused person and not a mere suspect. “For Otunla to return N6.3billion after an agreement with Magu, does not seem to fulfill the conditions for a plea bargain. Neither does Dikko’s return of N1.9billion to the AGF upon an agreement w
A former Attorney-General of the Federation (AGF), Abubakar Malami, has said the abuse of plea bargain due to procedural lacuna in the law is responsible for public distrust of the arrangement.
Malami, represented by the Solicitor-General of the Federation and Permanent Secretary, Federal Ministry of Justice, Dayo Apata, spoke on Tuesday at a virtual stakeholder roundtable for the “review of the plea bargaining guidelines for federal prosecutors.”
He said section 270 of the Administration of Criminal Justice Act (ACJA), 2015, “provides the general legal framework for the application of plea bargain”, but noted that the provision was inadequate to ensure the protection of public interest and prevent abuse.
He said, “I believe that this provision can also be effectively deployed to address the compounding of offences which features in some statutes but without any procedural detail to aid its application.
“This lacuna is responsible for abuses in compounding of offences which had strengthened the current public scepticism about plea bargaining in general.