the state of plea bargain in corruption trials in nigeria · the state of plea bargain in...

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Journal of International Law and Strategic Studies (JILSS) __________________________________________________________________________________

The State of Plea Bargain in Corruption

Trials in Nigeria Abdulkarim A. Kana Ph.D* and M. Y. Zakari⁺ Kana is the Dean of the Faculty of Law, Nasarawa State University, Keffi-Nigeria. Zakari is the Deputy Editor of the JILSS and a Senior Lecturer in the Faculty of Law, Nasarawa State University, Keffi-Nigeria.

Abstract

This paper examines plea bargain as it is currently being used in corruption trials in Nigeria and a brief analysis of the position in other jurisdictions. The enactment of the Administration of Criminal Justice Act 2015 (ACJA) brings to rest the controversies surrounding the half-hearted implementation of the method particularly by the Economic and Financial Crimes Commission (EFCC) prior to the enactment of the ACJA. Section 13 of the EFCC Act 2004 introduced plea bargain into Nigerian legal system. This paper examines the application of plea bargain in Nigeria from historical perspective along with the attendant criticism of the method. The merits that exist particularly with the enactment of the ACJA that streamlines the procedure for its implementation are discussed. A brief comparative analysis was also attempted with a view to identifying the successes recorded as a result of the use of the method in other jurisdictions and arriving at the conclusion that inspite of the numerous disadvantages of the method, the advantages are still more. In conducting the research, heavy reliance is made to existing literature on the subject and careful analysis of current statutory and judicial authorities.

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*LL.B, BL LL.M, Ph.D and ⁺LL.B, BL, LL.M

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Journal of International Law and Strategic Studies (JILSS)

1. Nature and Effects of Plea Bargain Plea bargain has been defined as a negotiated agreement between the prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence 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. Thus, plea bargain is also known as “plea agreement” or “negotiated plea.”1 Under the Nigerian criminal justice system an accused person is presumed to be innocent until his guilt is proved by the prosecution. This presumption of innocence invariably inures in favour of any person accused of a crime, as a fundamental right under the Constitution.2 The right is also recognized under the law of evidence, which not only casts upon the prosecution the burden of proving its case against an accused, but also stipulates the required standard of proof – which is proof beyond reasonable doubt.3 Accordingly, the courts have also held that subject to certain statutory exceptions,4 the burden of proof beyond reasonable doubt remains on the side of the prosecution throughout the trial and does not shift to the accused. It is only when that burden is discharged5 that the burden of proving “reasonable doubt” shifts to the accused.6 Hence, generally speaking, an accused person has no duty to establish his innocence ab initio.7 This underscores the basic ideals of the adversarial system of criminal justice, a common law tradition of the English legal system, which is also a feature of the legal system of Nigeria and of the other Commonwealth countries and the United States. The adversarial system is in sharp contrast to the inquisitorial or inquisitional approach adopted in continental Europe e.g. France and Italy. This is because under the latter, before the actual trial begins, the judge at first plays the role of an investigator into the criminal allegation against the accused. If, upon the completion of his pre-trial investigation, the judge finds that there is prima facie evidence of guilt against the accused, the matter proceeds to trial, but at that stage the accused is presumed guilty, and the burden falls upon him to prove his innocence against his accusers. Again, under the adversarial system, a confession by an accused person will almost invariably lead to his conviction for the offence charged. That is, once the accused has clearly and unequivocally pleaded guilty to the charge there is no more controversy about his guilt and he may be convicted there and then based solely on the plea of guilty.8 The only exception to this

1 Black’s Law Dictionary (7

th edition).

2 Section 36 1999 Constitution.

3 Section 138 (1) and (2) Evidence Act Cap. E14 LFN., 2004 see also Ibeziako v. Commissioner of Police, (1963) 1 All

N. L. R. 61. 4 Ibid. Section 139 and142.

5 See Ogbu Nwagu v. The State, (1966) 1 All N. L. R. 207.

6 Section 138 (3) Evidence Act.

7 Woolmington v. D. P. P, (1935) A. C. 462.

8 Section 218 CPA and section 187 (2) CPC.

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rule is when the offence charged is punishable with death, in which case a plea of not guilty is recorded even if he has pleaded guilty to the offence. By contrast, in the case of the inquisitorial system, even if an accused confesses to the crime, his confession is treated merely as an additional item in the body of evidence which the judge will take into account in the process of his pre-trial investigation into the allegations against the accused. In other words, the confession would not absolve the prosecution of the duty to present a full case. The logic of the plea bargain may be said to derive, in a general sense, from the same premise as the adversarial system of criminal justice described above. It is the constitutional presumption of innocence (which inures in favour of the accused from the onset of his trial) that makes it possible to contemplate the idea of bargaining or negotiating his plea. If the accused had been presumed guilty of the charge from the beginning of the trial, as is the case under the inquisitorial system, it would have been logically impossible to talk of bargaining or negotiating his plea in the circumstance, for there would have been nothing to bargain or negotiate.9 There is no doubt that the phenomenon of plea bargains or guilty pleas came into prominence in Nigeria with the advent of the EFCC and ICPC. So far, it has been applied mostly in cases involving allegations of corruption, such as embezzlement of public funds, money laundering and other economic and financial crimes. In the case of Tafa Balogun, in which the accused (a former Inspector-General of Police) was charged with several counts of offences under the EFCC Act, 2004, and the Money Laundering (Prohibition) Act, 2004. He agreed to plead guilty to the charges in return for a light sentence of six months imprisonment. The sentence was, however, coupled with an order of forfeiture of a sizeable part of his property and assets, which were said to have been acquired through the proceeds of the offences with which he was charged. However, the use of plea bargains in corruption-related cases by the Nigerian anti-graft agencies is open to a number of criticisms. These bother on issues such as the constitutionality or legality of the procedure within the context of Nigerian law, due process, transparency, traditional penological thought and its implications vis-à-vis the ongoing anti-corruption effort of the Federal Government i.e. possibility of manipulating the process. The fear of manipulation of the process explains why the committee on Law, Judiciary, Human Rights and Legal Reform of the Nigerian National Conference 2014 recommended that the concept of Plea Bargain should be abolished. It is pertinent to first appraise the existence of the procedure (plea bargain) in other jurisdictions, from which the anti-corruption agencies in Nigeria derived the mechanism in corruption trials. This is for comparative purpose to identify the good sides and the bad sides.

9 Mohammed, A. Y., Vol. 3., op. cit. p. 61.

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2. Plea Bargain in Common Law Countries The United States may justifiably be described as “the home” of plea bargains or guilty pleas. The concept has been a very prominent and regular aspect of that country’s criminal justice system for much longer than in any other jurisdiction in the world. It has also been estimated that plea bargains or guilty pleas account for about 90 percent of all convictions for felony in the United States, while the remaining 10 percent are felony convictions by way of jury trial.10 It is noteworthy that usually, when the prosecution and an accused person enter into a plea bargain, they are not entirely on their own. For a plea bargain to be effective, it must be approved by the court, since the latter bears the ultimate responsibility for sentencing.11 But apart from the ordinary type of guilty plea (i.e. involving actual admission of guilt), the American criminal justice system also recognizes two other species of guilty pleas. These are known as the Alford and the nolo contendere pleas respectively. The Alford plea is defined as “a guilty plea entered into by a defendant without actually admitting guilt”12 The plea takes its name from the case of North Carolina v. Alford,13 in which the U.S. Supreme Court held that it was not unconstitutional for a judge to accept a guilty plea by an accused person, who at the same time protests his innocence. In that case, the accused, Alford, was indicted for the offence of first degree murder allegedly committed by him in the State of North Carolina in December 1963. After his lawyer had interviewed a number of witnesses, he was convinced that the accused was guilty and was most likely to be convicted if put on trial. Accordingly, he advised the accused to plead guilty to the lesser charge of second-degree murder which attracted a lesser sentence, but left the accused to decide for himself whether or not to enter such a plea. The accused pleaded guilty to the charge of second-degree murder, but at the same time made it known to the court that he was in fact innocent, and that he decided to plead guilty to the charge merely to avoid the risk of a death penalty, which would have been imposed on him in the event he was convicted of first-degree murder. Consequently, Alford was convicted and sentenced to a term of 30 years imprisonment, which was the maximum penalty prescribed for the offence of second-degree murder. But Alford appealed against his conviction and sentence, on the ground that his plea was not voluntary, but was induced by fear and coercion and therefore a violation of his constitutional rights. The Federal Appeals Court which heard the appeal was persuaded by this argument and accordingly

10

En.wikipedia.org/wiki/plea_bargain#United_States visited on the 20th

of June, 2011. 11

Ibid. 12

Black’s Law Dictionary, (7th

Edition). 13

400 U. S. 25 (1970).

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ruled that “Alford’s guilty plea was involuntary because its principal motivation was fear of the death penalty”, and that the trial court ought to have rejected the same.14 The matter eventually came before the U.S. Supreme Court for review. In his judgment in the case, Justice Byron White noted that the Court accepted the case for review because some states authorized conviction only for a crime “where guilt is shown”, including by means of a guilty plea that included an actual admission of guilt; but “others have concluded that they should not ‘force any defence on a defendant in a criminal case,’ particularly when advancement of the defence might ‘end in disaster…’ “And, therefore, the court would accept a guilty plea in Alford’s circumstances.15 Finally, Justice White declared that courts must accept whatever plea a defendant chooses to enter, as long as he is competently represented by counsel; the plea is intelligently chosen; and, more importantly, “the record before the judge contains strong evidence of actual guilt”. In his Lordship’s opinion, when a defendant is faced with the “grim alternatives” of either pleading guilty to the crime or pleading not guilty and allowing the case to proceed to trial, his best course of action may be to plead guilty to the crime, and the courts must accept the defendant’s /choice made in his own interests. Justice White also stressed that an Alford plea is not considered compelled or involuntary within the meaning of the Fifth Amendment “if the plea represents a voluntary, knowing, and intelligent choice between the available options.”16 The nolo contendere17 plea is one in which the defendant neither admits nor disputes a charge. Though technically not a guilty plea, a nolo contendere plea entails the same consequences as an outright guilty plea. But unlike the latter, it does not oblige the defendant to admit guilt. The defendant simply abstains from contesting the charge, in return for a beneficial concession by the prosecutor, such as reduction of charges or the assurance of a lenient sentence. Another importance of the nolo contendere plea is that where a person who has been charged with a criminal offence also has a civil suit (arising from the same event) hanging over his head, the plea cannot be used against him in the civil suit, i.e. as evidence of admission of liability.18 It should be observed that a plea of nolo contendere is not invariably accepted or allowed as matter of right in some jurisdictions in the United States. On the contrary, its use is subject to certain restrictions, such as the provisions under some state laws which determine “whether, and under what circumstances a defendant may plead no contest.”19 Similarly, with specific reference to the U.S. state of Texas, a court’s judgment which is based on a plea of nolo contendere cannot be appealed against, except the appeal is preceded by a written application by way of motion to the court and the court has ruled thereon and signified its acceptance of

14

En.wikipedia.org/wiki/plea_bargain#United_States visited on the 20th

of June, 2011 15

Ibid. 16

Ibid. 17

Latin- for “I do not wish to contest” or “no contest” see En.wikipedia.org/wiki/plea_bargain#United_States visited on the 20

th of June, 2011

18 Ibid.

19 En.wikipedia.org/wiki/Nolo_contendere visited on the 20

th June, 2011.

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the application.20 Both the Alford and the nolo contendere pleas have been criticized on the grounds that they undermine public confidence in the accuracy and fairness of the criminal justice system, sending some people to jail who are unrepentant or innocent; and that they dodge the “morality play” aspect of a criminal trial, in which upright civilization is vindicated and the community sees that the guilty are justly punished.21 The high prevalence of the plea-bargain system in the United States is complemented by the existence of an equally complex and well-developed body of rules and regulations, both at the federal and state levels, which are designed to ensure that adequate protection is given to the accused and that the system is not unduly abused or exploited. For instance, there is a body of rules and regulations known as the “Federal Sentencing Guidelines”, which are applicable to federal cases. Published as part of Title 18 of the United States Code, the Guidelines have as their primary purpose the provision of a uniform standard in sentencing in all criminal cases in the federal courts. An example of such standardization for the sake of uniformity in sentencing is the provision (under federal law) that the maximum reduction obtainable through a plea bargain, in respect of jail sentences and fines, is uniform fixed at 50% of the prescribed sentence.22 Furthermore, in August 1997, the American Bar Association (ABA) House of Delegates approved the “black letter” standards published by the association in “ABA Standards for Criminal Justice: Pleas of Guilty, 3d ed. (1999)”. Since 1968, when the inaugural seventeen-volume Edition was published, the ABA Criminal Justice Standards have served as a useful guide to policymakers, practitioners and other operators of the American criminal justice system. This led Chief Justice Warren Burger to describe the said Standards as “the single most comprehensive and probably the most monumental undertaking in the field of criminal justice ever attempted by the American legal profession in our national history.”23 The system of plea-bargains is not yet as prevalent in the UK as it is in the United States. For it is permitted in the UK only in cases where the plea bargain involves an agreement by the accused to plead guilty to some charges, in return for the prosecutor agreeing to drop the remainder. Because of this, the courts in the U.K. have always made it clear that it is exclusively within their province to determine what the appropriate sentence is to be in each case and that there can be no bargaining over such an issue. Nevertheless, there is currently a move to introduce legislation that would back the adoption of the American-style plea bargaining system. But in contrast to the attitude of the American Bar Association (ABA) vis-à-vis the operation of the plea-bargain system in the United States, the Law Society and the Bar in Britain appear to be strongly opposed to the attempt to introduce the system to the prosecution of fraud cases. Their opposition is due, inter alia, to the fact that the Bill embodying the envisaged reform

20

Texas Rules of Appellate Procedure, Rule 25.2 (a). Cf. Mohammed A. Y., Vol. 3 op. cit. p. 65. 21

Mohammed A. Y.’ Vol. 3 op. cit p. 66. 22

Ibid. 23

www.abanet.org/crimjust/standard/home.html, visited on the 20th

June, 2011.

http://www.abanet.org/crimjust/standard/home.html

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includes plans to exclude juries from the trial of such cases. The critics of the Bill believe that the exclusion of juries from the trial of fraud cases could lead to the introduction of even more complex evidence, which would in the long run make trials more protracted and expensive. In the opinion of the Law Society, the procedure of “trial by jury is a time-tested method of determining the facts in a criminal trial.”24 From all the foregoing, it suffices to say that even though it might be correct to say that “the wind of change” represented by the proposed introduction of the plea-bargain system to fraud cases in the UK is still at an inchoate stage, it is clear that the proposed legislation in this regard demonstrates quite clearly the vital presence of a consciousness on the part of the stakeholders in that jurisdiction of the need to properly sieve the system before its introduction into the British criminal justice system.25 The concept of plea bargaining was only recently introduced into the corpus of criminal law in India, another common law country. This was done through the instrumentality of the Criminal Law (Amendment) Act, 2005, which amended the pre-existing Indian Code of Criminal Procedure, by the introduction thereto of a new Chapter XXI (A), which came into force on January 11, 2006.26 However, it is noteworthy that the operation of the new provision on plea bargaining in India is limited to offences which attract the maximum punishment of seven years imprisonment. Furthermore, the provision does not apply in the case of an offence which affects the socio-economic life of the country or which has been committed against a woman or a child under the age of fourteen years.27 The statutory framework on plea bargain was introduced in Pakistan through the National Accountability Ordinance 1999, a substantive anti-corruption law. Under the provisions of this Ordinance, the procedure of plea bargain is usually set in motion by the accused first making a request for a plea bargain, in which he indicates his acceptance of his guilt and also offers to return the proceeds of his alleged corruption as may be determined by investigators/prosecutors. The request shall be forwarded to the Chairman of the National Accountability Bureau for his endorsement. Thereafter, the request shall be presented before the court, which shall determine whether it should be accepted or not. If the court accepts the request for a plea bargain, the accused stands convicted but is neither sentenced if on trial nor undergoes any sentence previously pronounced by a lower court if on appeal. However, he shall be disqualified from participating in elections, holding any public office or obtaining a loan from any bank. If he is government official, he shall also be dismissed forthwith from office.28

24

The Times, March 15, 2007 cf. Mohammed , A. Y., Vol. 3 p. 67. 25

Ibid. 26

Ibid. 27

En.wikipedia.org/wiki/plea bargain visited on the 20th

June, 2011. 28

Ibid.

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3. Plea Bargain in Civil Law Countries It was observed above that what makes the concept of plea bargain more logical or practicable in common law countries is because the criminal justice systems of those countries that operate within the adversarial tradition and the principle of presumption of innocence which inures in favour of an accused right from the onset of his trial. However, this is not so in the case of civil law countries, in which, by virtue of their inquisitional or inquisitional style of criminal proceedings, the guilt of an accused person is taken for granted from the start of his trial and the concept of plea is therefore virtually non-existent. It was also emphasized that even where an accused person has made a confession to the crime alleged, this does not necessarily absolve the prosecutor of the need to present a full case, because the judge-cum-investigator may still pronounce the accused innocent, in spite of his initial confession, if, at the end of the investigation, the totality of the evidence presented before the judge should justify such a pronouncement. Consequently, the power of prosecutors in civil law countries to drop or reduce charges before or after a case has been filed is considerably restricted or limited, thus making plea bargaining virtually impossible. Furthermore, many civil law jurists consider the very concept of plea bargain as abhorrent, in that they see it as reducing criminal justice to mere barter between the prosecutor and the accused.29 It would appear that in spite of the seeming incompatibility of the concept of plea bargain or guilty plea with the inquisitorial system of criminal justice, a limited form of the concept does exist in France, a civil law country. The plea is known as comparution sur reconnaissance prealable de culpabilite (CRPC). But the CPRC system is applicable only in the case of relatively minor offences. The prosecutor is allowed to propose to a suspect a penalty not exceeding one year imprisonment. If the proposal is accepted by the accused, it is presented to a judge for his acceptance or approval as a precondition for its implementation.30 As in the case of the common law countries, the CPRC was also a subject of controversy in France. Its opponents contend that it would gravely jeopardize and subvert the rights of defence, such as the rights which a suspect enjoys while in police custody, the constitutional right of presumption of innocence and the right to a fair trial.31 In Italy, there is a procedure known as “pentito” (which literally means “he who has repented”). Under the pentito procedure (which appears, even though remotely, to be similar to the system of plea bargain), the accused beneficiaries were given lighter sentences in return for information supplied by them to the magistrates, which led to the conviction of other accused persons. The procedure was first applied in Italy as a counter-terrorism strategy, during the era known as “years of lead”. It was later extended to the Maxi trial of the Mafia in the mid-1980s.

29

Ibid. 30

Ibid. 31

Ibid.

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That era witnessed the simultaneous arrest and prosecution of hundreds of Mafiosi for a multitude of Mafia-related crimes, ranging from cold-blooded murders to drug trafficking, extortion and membership of the Mafia. Out of the 474 Mafiosi that were arraigned for trial, 360 were based mostly on the evidence offered by a former Mafia boss named Tommaso Buscetta, who had opted to become an informant against his former colleagues in organized crime, because of the personal tragedies visited upon his family by the Mafia. The Maxi trial also encouraged a number of other prominent turncoats to testify against the Mafia in order to safeguard their own skins. Hence, the pentito procedure was faulted on the ground that it encouraged the beneficiaries, in some cases, to deliberately mislead the Italian magistrates for their own selfish purposes.32

4. Plea Bargain in Nigeria The practice of plea bargain is new in Nigeria. It was not contained in any Nigerian legislation until 2004 when the EFCC Act (as amended)33 was enacted and the now Administration of Criminal Justice Act 2015. The EFCC Act provides as follows:

Subject to the provisions of section 17434 of the Constitution of the Federal Republic of Nigeria 1999, the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.35

The above section, no doubt, empowers the EFCC to enter plea bargain with the accused and this is done by compounding the offence before the case is taken to court, they can agree with the suspect who would be told to return all the loot and the offence compounded. The provision of section 13 (2) of the EFCC Act indicates that when an accused agrees to give up money stolen by him, the Commission may compound any offence for which such a person is charged under the Act. On the effect of the above provision of the EFCC Act, Alubo had this to say:

Compounding here means the Commission may let go of the offence or put more succinctly may agree to drop the charges if the accused is prepared to give up such sums of money as the Commission may deem fit in accordance with the Act. It emphasizes by accepting such sums of money. It is obvious that this provision has no

32

Ibid. 33

Act No.1 2004. 34

Section of 1999 Constitution relates to the power of the Attorney General of the Federation to institute, continue, take over or discontinue criminal proceedings against any person in any court of law. 35

Section 13 (2) EFCC Act 2004.

38


universal application to all criminal trials in Nigeria as negotiations thereunder are expressly limited to offences punishable under the Act, Sections 14-18 of the Act provides for crimes for which the Commission can exercise jurisdiction. These includes: offences relating to financial malpractices, offences in relation to terrorism, offences relating to public officers retention of proceeds of criminal conduct and offences in relation to economic and financial crimes. In practice, however, the EFCC accepts plea bargain on other offences.36

Added impetus to the new concept came with the enactment of the Administration of Criminal Justice Law 2007, Laws of Lagos State, which introduced and entrenched plea bargain in Lagos State. The aforesaid law with respect to plea bargain states as follows:

76(1) The prosecutor and a defendant or his legal practitioner may before the plea to the charge, enter into an agreement in respect of:

(a) a plea of guilty by the defendant to the offence charged or a lesser offence of which he may be convicted on the charge, and

(b) an appropriate sentence to be imposed by the court if the defendant is convicted of the offence to which he intends to plead guilty.

(2) The prosecutor may only enter into an agreement contemplated in subsection (1) of this section: (a) after consultation with the Police Officer responsible for the

investigation of the case and if reasonably feasible, the victim, and (b) with due regard to the nature of and circumstances relating to the

offence, the defendant and the interests of the community. (3) The prosecutor, if reasonably feasible shall afford the complainant or his

representative the opportunity to make representations to the prosecutor regarding: (a) the contents of the agreement; and the inclusion in the agreement

of a compensation or restitution order. (4) An agreement between the parties contemplated in subsection (1) shall be

in writing and shall be signed. (5) The Presiding Judge, or Magistrate before whom criminal proceedings are

pending shall not participate in the discussions contemplated in sub-section (1). Provided that he may be approached by Counsel regarding the contents of the discussions and he may inform them in general terms of the possible advantages of discussions, possible sentencing options or the acceptability of a proposed agreement.

(6) Where a plea agreement is reached by the prosecution and defence, the prosecutor shall inform the court that the parties have reached an

36

Quoted by Oguche Samuel., “Development of Plea Bargaining in the Administration of Criminal Justice in Nigeria: A Revolution, Vaccination Against Punishment or Mere Expediency?” Published in nials-nigeria.org/pub/oguche. Visited on the 22

nd June, 2011.

39


agreement and the Presiding Judge or Magistrate shall then inquire from the defendant to confirm the correctness of the agreement.

(7) The Presiding Judge or Magistrate shall ascertain whether the defendant admits the allegations in the charge to which he has pleaded guilty and whether he entered into the agreement voluntarily and without undue influence and may: (a) if satisfied that the defendant is guilty of the offence to which he has

pleaded guilty, convict the defendant on his plea of guilty to that offence, or;

(b) if he is for any reason of the opinion that the defendant cannot be convicted of the offence in respect of which the agreement was reached and to which the defendant has pleaded guilty or that the agreement is in conflict with the defendant’s rights referred to in subsection (4) of this Section, he shall record a plea of not guilty in respect of such charge and order that the trial proceed.

(8) Where a defendant has been convicted in terms of subsection (7) (a), the Presiding Judge or Magistrate shall consider the sentence agreed upon in the agreement and if he is: a. satisfied that such sentence is an appropriate sentence impose the

sentence, or: b. of the view that he would have imposed a lesser sentence than the

sentence agreed upon in the agreement impose the lesser sentence; or c. of the view that the offence requires a heavier sentence than the

sentence agreed upon in the agreement, he shall inform the accused of such heavier sentence he considers to be appropriate.

(9) Where the accused has been informed of the heavier sentence as contemplated in subsection (8) above, the defendant may: (a) abide by his plea of guilty as agreed upon in the agreement and agree

that, subject to the defendant’s right to lead evidence and to present argument relevant to sentencing, the presiding Judge, or Magistrate proceed with the sentencing; or

(c) withdraw from his plea agreement, in which event the trial shall proceed de novo before another Presiding Judge, or Magistrate, as the case may be.

(10) Where a trial proceeds as contemplated under subsection (9) (a) or de novo before another Presiding Judge, or Magistrate as contemplated in subsection (9) (b): (a) no reference shall be made to the agreement; (b) no admissions contained therein or statements relating thereto shall be

admissible against the defendant; and (d) the prosecutor and the defendant may not enter into a similar plea

and sentence agreement.

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It has been observed that plea bargain is a welcome development in Nigeria; nevertheless we caution that care must be observed in the application and practice of plea bargain in the context of corruption cases in Nigeria. A situation where plea bargain is arranged between the EFCC and politicians charged with corruption is not healthy for our democracy that is striving to survive. The application of plea bargain to corruption cases in Nigeria has been criticized by prominent Nigerians for being too lenient a lenient an approach to fighting corruption while still drumming that corruption remains the stiffest cog in the wheel of Nigeria’s progress.37 A recent manifestation of plea bargaining was in the trial of Cecilia Ibru, the former Chief Executive Officer and Managing Director of the defunct Oceanic Bank. Mrs Ibru was arraigned by the economic and Financial Crimes Commission in Court on the 31st day of August, 2009 on a 25 - count charges, all bothering on corrupt practices in office. The charges were subsequently reduced to three and this cannot be unconnected with plea bargaining. Consequent upon plea bargaining between the EFCC and Ibru, the latter decided to plead guilty to the said amended three-count charge of alleged abuse of office and mismanagement of depositor’s funds levelled against her by the former.38 Specifically, the anti-graft agency alleged in the amended charge that Ibru granted a credit facility in the sum of 20 million US dollars to Waves Project Limited which sum was above her credit approval limit as laid down by the bank. She was also accused of failing to take all reasonable steps to ensure the correctness of Oceanic Bank monthly bank return to the Central Bank of Nigeria (CBN) between October 2008 and May 2009. Mrs Ibru was also accused of approving the granting of a credit facility in the sum of N2 billion by the bank to Petosan Farms Limited without adequate security as laid down by the regulations of Oceanic Bank, thereby committed an offence punishable under section 15 of Failed Bank and Financial Malpractice in Bank Act.39 As stated above, the accused pleaded guilty as a result of plea bargain between her and the EFCC. In the course of the proceedings, counsel to the prosecution, Kola Awodein (SAN), informed the court that the Commission had reached an agreement with Ibru. He disclosed further that the formal agreement had also been filed before the court. In his own submissions, counsel to the accused, Professor Taiwo Oshipitan (SAN), urged the court to consider the action of her client to see to the conclusion of the matter as soon as possible. He posited that this was because of her love for the bank and urged the court to be lenient with her.40 In his judgment on Friday the 8th day of October, 2010, Justice Dan Abutu of the trial Federal High Court Lagos sentenced the accused to six months imprisonment on all the three counts, amounting to eighteen (18) months imprisonment. The sentences however, are to run concurrently and this means that the convict would spend only six months in prison. The judge

37

Ogwuche Samuel., “Development of Plea Bargaining in the Administration of Criminal Justice in Nigeria: A Revolution, Vaccination Against Punishment or Mere Expediency?” op. cit. 38

Ibid. 39

Ibid. 40

Ibid.

41


also ordered that the former bank chief should forfeit properties and assets valued at N191 billion. These properties included those in Nigeria, United States of America and Dubai in addition to shares in over 100 firms listed and not listed with the Nigeria Stock Exchange (NSE). Justice Abutu ordered that Mrs. Ibru should be taken to Reddington Hospital, Victoria Island, Lagos by the prison’s authority within two hours after they receiving a copy of the judgment. According to the judge, she is to remain in the hospital until she is certified fit to be remanded in prison custody.41 Many analysts are of the view that this case shows the possibility of abuse of plea bargaining in the context of its application to corruption cases in Nigeria. That it shows that plea bargain is an escape route for criminals who embezzle public funds. Also, that it amounts to vaccination against punishment since culprits may be allowed to keep a large portion of the loots. In an effort to strike a balance on the respective contentions, the Nigeria’s National Assembly enacted the Administration of Criminal Justice Act 2015 (ACJA). Plea Bargain is provided for in Part 28, Section 270 (1-18) as an available plea for an accused. Section 270 (1) provides two ways that a plea bargain can be invoked which is either by the prosecutor or the accused. For the accused, the offer can be made directly or by their counsel or representative, but the victim of the crime committed by the accused must be obtained. The plea bargain can be taken during or after the prosecution’s case but before the opening of the defence. Section 170 (2) ACJA enumerates the conditions for making of the plea as follows:

i. the evidence of the prosecution is insufficient to prove the offences charged beyond reasonable doubt. This will mean that where the prosecution is doubtful of the strength of its case, this option acts as a soft landing to save time and resources.

ii. Where the accused has agreed to return the proceeds of the crime or make restitution to the victim or his representative. The understanding here is the return of the entire proceeds and not a part. The accused may be expected to declare all he has as proceed of that crime, or an amount equal to the value indicated in the charge.

iii. Where the accused in case of conspiracy has fully cooperated with the investigation and prosecution of the crime by providing relevant information for the successful prosecution of other offenders.

Section 170 (2)(a) ACJA precludes straight forward and easily provable cases from plea bargain, and emphasis on certain issues to be considered by the State before making a bargain. The most important objective is for speedy dispensation of cases, and to prevent prison congestion as a result of awaiting trial inmates. After all, the person remains a convict.42 The nature of plea bargain as provided in ACJA does not act as exoneration and is not the same with compounding the offence. It only reduces the sentence. The law also disallows the invocation by a repeat

41

Ibid. 42

See S. 170 (2) (b) and (c) ACJA.

42


offender that has benefited from plea bargain in an earlier case. The law provides for the Central Criminal Registry to be established for the purpose of keeping records of all convicts.43

5. Conclusion It is also to be observed that Plea bargain may defeat the aim of punishment as a fundamental objective of criminal law by not deterring offenders who belief that the option is a leeway for escape from punishment in the long run. There are also criticisms that the ACJA and other laws that allows the EFCC to strike a plea bargain with accused persons charged for corruption offences is porous and does not offer enough rules and parameters for such negotiations and the striking of agreement and that there is still a lot of room for manipulation. The following points are identified as the core of the demerits: a. Plea bargaining allows the prosecutor to obtain ‘guilty pleas’ in cases that might otherwise

go to trial, since there is no definition of how to determine when s case is provable or not provable. By so doing, an accused or a defendant is made to plead to a lesser charge, which then invariably attracts a lighter sentence.

b. The criticism that the principle of deterrence and a major principle of punishment is defeated because of this practice that allowed an offender to pay a fine instead of going to jail to serve as a deterrent to others, further arguing that it amounts to a sacrifice of criminal justice at the expense of reducing the cost of criminal prosecution. However, there are other views on this point with opinions that the system is good for the Nigerian criminal justice as if it will not be abuse as it was done in the cases of Alaimeseya and Lucky Igbenedion. Especially with the stringent measures introduced in ACJA, it may be difficult now to for easy compromise.

In spite of some of the shortcomings in the implementation of plea bargaining system so far, the adoption of plea bargaining by the anti-corruption agencies in Nigeria in their handling of corruption cases may be rationalized, in each case, on the need to save the state and the defence from depleting energy, time and resources in conducting a trial. It is not in doubt that prosecuting cases in court cost money, particularly with the volume and fast tide of cases coming before the anti-corruption agencies on a daily basis. Plea bargain results in bargaining over sentence rather than the charges.

Finally, we suggest that some form of mandatory or minimum sentencing guidelines must be made available for judges so as to ensure impartiality in the practice of plea bargaining, especially when it comes to the issue of concessions.44 There should be a benchmark that will serve as a guide to judges in sentencing accused persons who have pleaded guilty as a

43

See Part 2, S. 16 ACJA. 44 See R. v. Turner (1970) 2 QB 321 where Lord Parker gave some procedure to be adopted.

43


result of plea bargains. This would ensure that judges do not articulate ridiculous sentences that would make mockery of justice, and also prevents the prosecution from reaching ridiculous plea agreements.45

45

See the case of State v. Yusuf John Yakubu decided by Hon. Justice Talba of the FHC Abuja.

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