PLEA BARGAINING IN NIGERIA: ANY LEGAL FOUNDATION?
By Kehinde Adegbite, Esq
The Nigerian criminal justice system is set in motion the moment a crime is committed. Once this happens, arrest is made, investigation commenced and prosecution of whoever is responsible for the violation of the criminal law may ensue. The Nigerian law presumes the offender to be innocent until the prosecution (i.e. the State) is able to prove the case against him beyond reasonable doubt. The State fails in its duty, if an ingredient of a crime is not proved to the satisfaction of the court. For example, in a case of fraudulent conversion of public funds, one of the ingredients of the offence which must be established is that the funds allegedly converted are public funds. It must be pointed out that this process of proving a criminal case beyond reasonable doubt, more often than not, paves way for many accused persons to escape being punished; even though, they might have committed the alleged offences in actual fact. Even if a criminal case is proved to the standard required by law i.e. beyond reasonable doubt, considerable time and expenses would have been invested. These are some of the reasons behind the invention of a concept known as plea bargaining, even from the place of its origin.
Plea bargaining is a negotiation which takes place between an accused person and the prosecution where the former pleads guilty to some of the offences which he is charged (usually lesser offences), while the latter agrees in turn to drop one or more of the other offences with which the accused person is charged; or the accused person may plead guilty to one or more offences in return for the prosecution conceding to a milder penalty. In a similar tone, the Black’s Law Dictionary, 9th Edition (2009), defines it thus,
“A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor usually, a more lenient sentence or a dismissal of the other charges.’’
One obvious inference from the meaning of the concept of plea bargaining in relation to the underlying philosophy of the Nigerian criminal jurisprudence is that once an accused person accedes to the use of plea bargaining, his right to presumption of innocence and the corresponding duty of the prosecution to prove its case beyond reasonable doubt abate. A guilty plea would be entered and a pre-negotiated penalty follows. Again, any person convicted in this circumstance cannot appeal, unless fraud can be proved or there is a fundamental breach of his rights, just like a consent judgment in a civil case.
Plea bargaining is a creation of the American criminal justice system which has in recent years gained some endorsement in Nigeria. It is said that an average criminal case in America is disposed off through the use of plea bargaining. In Santobello v. New York (1971) 404 U.S 257, 260 [92 S. Ct. 495, 498, the US Supreme Court held,
“The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining’, is an essential component of the administration of justice. Properly administered, it is to be encouraged.”
Even decades later, a Nigerian-born American lawyer, Kayode Oladele, in his online article titled, “Plea Bargaining and the Criminal Justice System in Nigeria”, states,
“While plea bargaining is a new trend in Nigeria, the practice is considered a common phenomenon in the U.S legal system and it can be argued that the American criminal justice system would simply cease to function without plea bargaining.”
The origin of plea bargaining in Nigeria could be traced to 2005 when it was first used by the Economic and Financial Crime Commission in the trial of the former Inspector-General of Police, Tafa Balogun and later in the case of Diepreye Alamieyeseigha, the ex-Governor of Bayelsa State. It has also been subsequently used in a number of other high profile official corruption and banking fraud cases. In Nigeria, plea bargaining is usually employed in the trial of financial crime cases by making it part of the negotiation for the accused person to surrender some portion of money which he has embezzled and for which he is being tried. This is why some have described it as “celebrity justice”.
The use of plea bargaining has been vehemently condemned by some legal practitioners and scholars, while some others have endorsed and seen it as a welcome development in the Nigerian criminal jurisprudence. For those who argue against the concept, it is their view that plea bargaining is unknown to the Nigerian jurisprudence especially the federal laws. Sometime in 2012, the Chief Justice of Nigeria, Dahiru Musdapher (as he then was), in his criticism of the concept, reportedly said at a public lecture that “…plea bargaining is a novel concept of dubious origin. It has no place in our law – substantive or procedural.”
It is also argued that it is being used to provide soft-landing for influential and elitist law-breakers, while ordinary persons who commit crimes of less economic implications languish in prisons. Akin Oyebode, a renowned Professor of International Law, speaking in like manner in his lecture titled “Plea Bargaining, Public Service Rules and Criminal Justice in Nigeria”, expressed his mind in these words,
“…the thinking of the majority seldom coincides with that of their rulers who would always be trusted to be desirous of wanting to protect their own. The expectations of some lawyers that plea bargaining would be cost-effective and help de-clog the judicial system are apt to receive a hard hearing in a society where a common goat or yam thief goes to jail while the white or blue collar criminal is given a mere symbolic sentence, most of which is either served in pleasurable surroundings or offered the opportunity of fines in lieu of incarceration.”
The only Nigerian legislation that specifically mentions plea bargaining is the Lagos State Administration of Criminal Justice Law, 2007. Section 75 of this law provides,
“Notwithstanding anything in this law or any other law, the Attorney-General of the State shall have power to consider and accept a plea bargain from a person charged with any offence where the Attorney-General is of the view that the acceptance of such plea bargain is in the public interest, the interest of justice and the need to prevent abuse of legal process.”
It would be of interest to also note that some other legislation provide for a process akin, though this is debatable, to the concept of plea bargaining. This is found in the Criminal Procedure Act and the Economic and Financial Crime Commission (EFCC) Act, 2004.
Section 180(1) of the Criminal Procedure Act provides:
“When more charges than one are made against a person and a conviction has been had on one or more of them the prosecutor may, with the consent of the court, withdraw the remaining charge or charges or the court, of its own motion, may stay the trial of such charge or charges.”
Section 14(2) of the EFCC Act, 2004, on the other hand, states as follows:
“Subject to the provision of section 174 of the Constitution of the Federal Republic of Nigeria, 1999 (which relates to the power of the Attorney-General of the Federation to institute, continue or discontinue criminal proceedings against any persons in any court of law), the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, not exceeding the amount of the maximum fine to which that person would have been liable if he had been convicted of that offence.”
In fact, EFCC introduced the concept into Nigeria by relying on section 14 (2) of their Act.
It is however the submission of this writer that plea bargaining could not be justified under the two provisions (i.e. sections 180 (1) of the Criminal Procedure Act & 14 (2) of the EFCC Act) quoted above. Section 180(1) of the Criminal Procedure Act deals with the withdrawal or stay of some counts against an accused person where he is already convicted of some other counts in the same charge and as such that cannot be likened to plea bargaining. Plea bargaining, on its own, presupposes an agreement made at the early stage of trial or later but certainly before conviction. Similarly, it is wrong to equate a practice whereby a criminal charge against an accused person is completely dropped in order to use him as a “star witness” for the purpose of securing the conviction of his co-accused persons to plea bargaining. Furthermore, this writer is of the view that section 14(2) of the EFCC Act, 2004, does not also, by literal interpretation of its wordings, imply a plea bargaining. This is because the section deals with the issue of truncating the trial of an offender by accepting some money from him as a fine which the court would have imposed on him, if he had been convicted, while plea bargaining advocates a negotiated agreement which is meant to shorten the course of trial whereby an accused person makes a guilty plea in order to receive a mitigated punishment. And in addition, as found in most cases, he would have agreed to forfeit some portions of his ill-gotten assets to the government. It would have been observed that, in plea bargaining, accused persons usually forfeit sums of money running to millions, even billions in some cases, whereas there is no law prescribing fines close to such amounts of money.
This view is corroborated by the decision of the Court of Appeal (Benin Division) in F.R.N v. Igbinedion  All FWLR Pt. 734, 101 at 144, where the court, per Ogunwumiju (JCA), held, “… plea bargain is as at now generally unknown to our criminal justice administration and indeed our criminal jurisprudence.” It should be pointed out that this court did not come to this position without considering the provisions of the Criminal Procedure Act (which has the same wordings as the Criminal Procedure Law quoted above) and the EFCC Act.
It may be conceded that plea bargaining hastens the process of criminal prosecution as it also enables the federal government, most especially, to retrieve stolen public funds. It is nonetheless a concept that is alien to the Nigerian criminal jurisprudence, though with the exception of Lagos State law.
In conclusion, it is submitted that the use of plea bargaining cannot be entrusted to the whims and caprices of law-enforcement agencies and the courts. There is need for legislative intervention by providing for it in a statute and also by stipulating guidelines for its applicability. The effect of lack of such guidelines played out in the now infamous case of pension fraud where one John Yusuf, an Assistant Director with the Police Pension Board allegedly misappropriated about N32.8 billion and upon his making a guilty plea, he was given a sentence of two years’ imprisonment or an option of paying N750, 000 as fine. He gladly and instantly paid the meager fine. Also, in F.R.N v. Igbinedion (supra), the Court of Appeal declined to hold that a plea bargaining arrangement made in 2008 barred the Federal Government from filing a similar charge against Chief Igbinedion, former Governor of Edo State, in future. In coming to this decision, the court condemned the use of plea bargaining without any regulatory framework in place. Federal law-makers should take this into consideration in the passage of Criminal Justice Administration Bill currently pending before them. Even in the US where the concept is legally and popularly recognized, there are agitations, in some quarters, for its reforms. Timothy Lynch, in his paper titled “The Case Against Plea Bargaining”, concludes that its use usually threatens defendants’ constitutional right to full-fledged trials and in some other cases, it results in a disparity of punishments. The concept may also serve larger interest of justice if extended to other crimes, especially offences commonly committed by ordinary people and most particularly in the case of first-time offenders. This is necessary because in the US, the use of plea bargaining is not restricted to financial crimes. One can only look forward to see a day when an accused person who confesses or pleads guilty on the basis of a plea bargaining procedure, for example, to a charge of murder would be convicted instantly and given, say 10 years in prison, instead of being required to undergo a full-scale trial and where found guilty at the end, be sentenced to death or life imprisonment.
Written by: Kehinde Adegbite and he can be reached via HYPERLINK “mailto:email@example.com” firstname.lastname@example.org