An offence is an action or omission prohibited by law and usually inimical to the wellbeing of the society. In view of the negative consequences of crime,
the law prescribes punishment deemed commensurate to the crime committed. Therefore, any person found guilty of a crime is bound to face the penalties ranging from capital punishment, life imprisonment, imprisonment for term of years, fines, suspended sentences et cetera depending on the nature of crime committed. Prosecuting crimes in Nigeria is a herculean task. This is not unconnected with our system of adjudication which is adversarial and accusatorial in nature. It is the duty of the prosecution to prove the allegations of crime against the defendant and the standard of proof required is beyond reasonable doubt.
The energy, time and resources usually expended before establishing guilt of the defendant beginning from investigation, arrest, putting witnesses and evidence (both documentary and material (real) together, length of trial and post-trial protocols exert pressure on the administration of criminal justice system. The resources of state are not inelastic coupled with the facts that some defendants can take the state through torturous and lengthy trial and still get away with it. Sometimes, the time and resources expended on a particular trial may far outweigh any possible benefits a conviction could yield. There is no gainsaying the fact that criminal trial contributes to peace, orderliness, sanity, morality and development of the society. But in an atmosphere where limited resources available to the state are being largely consumed by criminal trial, it is only imperative to explore alternatives. Some of these reasons account for the introduction of the system of plea bargain to the criminal justice system.
Plea bargain in Nigeria enjoys a chequered history but perhaps gained notoriety when the Economic and Financial Crimes Commission (EFCC) consistently adopted it as a prosecution strategy. Section 14 (2) of the EFCC Act in particular states:
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.
Plea Bargain has been defined by the Court of Appeal to mean the following:
What is a plea bargain? A plea bargain is a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or sentence one of multiple charges in exchange for some concession by the prosecutor, usually, a more lenient sentence or a dismissal of the other charges. Plea bargain is the process whereby a criminal defendant and prosecutor reach a mutually satisfactory disposition of a criminal case, subject to the Court's approval. It can also be referred to as a plea agreement; negotiated plea; or charge bargain. Plea bargaining is expressly authorised in statutes and in Court rules. See Albert v. FRN (2021) LPELR – 56144 (CA) at page 10.
Plea bargain is one of the procedures open to both the prosecutor and the defendant to adopt in a criminal trial especially in cases of financial crimes. This may account for the reason behind the encouragement given to the concept by the EFCC Act which is the fundamental legislation in Nigeria against economic and financial crimes.
However, the signing into law of the Administration of Criminal Justice Act (ACJA) in 2015 (it is necessary to acknowledge that the Administration of Criminal justice Law of Lagos State had similar provision since 2011) took the idea of plea bargain beyond any doubt and established the concept as an integral part of our criminal justice system. Part 28 of the ACJA, spanning seven sections (270 to 277) with detailed and elaborate provisions, deals with plea bargain, its procedure and consequences. Plea bargain procedure had been commended for its many advantages. This is not to say that there are no noticeable disadvantages of plea bargain. The Court of Appeal in PEACE v. FRN (2021) LPELR – 56410 states in respect of merits and demerits of plea bargain thus:
Most of the academic scholars, especially those referred to earlier in this judgment, opine that plea bargaining has its advantages and disadvantages … I think that like every concept, conceived by human beings who are prone to committing errors, whatever the disadvantages of plea bargaining may be, the advantages thereof seem to clearly outweigh its disadvantages. Per MOORE ASEIMO ABRAHAM ADUMEIN, JCA (Pp 18 - 20 Paras F - E)
The Court of Appeal in PEACE v. FRN (supra) went ahead to identify the advantages thusly:
- The plea bargaining process is more cost efficient than having all cases go to trial.
- The practice is fair, just, and procedurally sound.
- The concept of plea bargaining affords the criminal adjudication process a speedy and less expensive window for the determination or resolution of criminal cases.
The disadvantages of Plea Bargain were enumerated in the said case as follows:
- Pleas bargain creates disparities within the system among those defendants who accept a plea and those who go to trial.
- The plea bargaining process allows prosecutors too much discretion compared with Judges, who are held to concise sentencing guidelines.
- Prosecutors have been found to use threats that coerce defendants into accepting pleas to secure a conviction when the evidence in a case is insubstantial.
- Prosecutorial biases can influence the plea bargaining processes, because prosecutors are given such wide latitude when they reduce charges for offenders.
From the forgoing, plea bargain no doubt has both positive and negative sides to it. This underscores the criticism that has attended to plea bargain in Nigeria as a discriminatory procedure available only to a certain class of the society, that is, the affluent and politically exposed persons. In 2016, it was reported that a defendant who was accused of laundering money allegedly misappropriated by the former NSA, Sambo Dasuki entered into plea bargain with the EFCC to refund certain amount in excess of N1.3billion (See http://africanripples.com/dasukigate-omisore-in-plea-bargain-to-refund-n1-3-billion-nigeria-news/).
Before Omisore’s case, there were cases of Mr Tafa Balogun, Former Inspector General of Police and Mrs Cecelia Ibru, a former bank Chief Executive. In 2005, Tafa Balogun, was arraigned by the EFCC in Charge No. FHC/ABJ/CR/14/2005 on seventy count charge bordering corruption and embezzlement of public funds to the tune of N10 Billion. Mr Balogun entered into plea bargain to forfeit some of the funds and was re-arraigned on an amended eight count charge. He was therefore sentenced to a six month jail term for an offence which attracts up to five years imprisonment. Mrs Cecilia Ibru was facing a 25-count charge before the Federal High Court in Lagos in Charge No. FHC/L/297C/2009 for various offences including giving loans beyond her credit limits, giving wrong accounts and giving out loans of N20 billion without due process. Ibru got a plea bargain in 2010 which reduced the charge to three count upon which she was convicted and sentenced to six months on each of the three counts to run concurrently after forfeiting 94 choice properties in the U.S, Dubai and Nigeria and shares in 100 companies, all valued at N191.4billion as part of the plea bargain arrangement.
It is important to add that former governors Bayelsa and Edo states, DSP Alamieyeseigha (in Charge No. FHC/L/328C/2005) and Lucky Igbinedion (in Charge No. FHC/EN/6C/2008) respectively also explored plea bargain to get off the criminal justice hook.
From the cases cited above, it is understandable why plea bargain is perceived as being discriminatory in favour of the affluent and politically exposed persons. Considering that one of the reasons for and advantages of plea bargain is speedy resolution of criminal cases, it is pragmatic to accept plea bargain agreements from the rich people and wealthy politicians for two reasons. One of the reasons is that they have the financial resources to delay criminal trials for many years by employing various means including the making of numerous interlocutory appeals to higher courts. The cases of former Governors Joshua Dariye and Jolly Nyame of Plateau and Taraba States respectively lasted for years before resulting into conviction. Former Governor of Abia State, Orji Uzor Kalu’s trial and conviction were quashed by the Supreme Court in 2019 after 12 years on the case. The second reason is majority of the cases involving the rich and affluent are based on financial crimes. Therefore, a plea bargain agreement that leads to the return of the moneys stolen and other financial penalty will to an extent do justice in the case by compensating the victim of the crime even if the convict is not punished by imprisonment. Therefore, prosecutors and defendants in a case involving a rich person will be likely to seek resolution of the case by plea bargain.
Although plea bargain agreements entered into by the rich are routinely broadcast by media, it does not diminish the fact that regular persons accused of crimes also enter plea bargain with the prosecutors. Those plea bargain agreements entered by regular persons may not make the news because the persons involved are not public figures or popular. Many states in Nigeria now adopt plea bargain as a tool to decongest prisons. Lagos state, Anambra state and Edo states are leading in this endeavour. In Anambra State, a nine-member Plea Bargain Committee headed by the Director of Public Prosecutions visited three state correctional facilities last year to raise awareness among inmates that they can be beneficiaries in the plea bargain process. In 2020, the Edo State Ministry of Justice sent out a notice to inform the general public that it was accepting plea bargain requests from prosecutors and defendants. These examples signify that plea bargain is not reserved for the rich and affluent. It is however important that more states come on board so that the advantages of plea bargain can be actualised in our criminal justice system. A widespread adoption of plea bargain will help to make that option more available to all categories of suspects, whether rich or poor, whose cases meet the criteria for plea bargain.