Plea bargain is one of Nigeria’s attempts at extending the concept of restorative justice within the criminal justice system. Restorative justice is a theory of justice that emphasizes repairing the harm caused or revealed by criminal behavior. It is best accomplished through cooperative processes that include all stakeholders.
Conventional criminal justice is retributive in nature and the most dominant source of the criticism against plea bargaining can be traced to retribution as a penal philosophy. Retributivists condemn bargain justice plea bargains and immunity deals as violating a number of conditions of just punishment. Under retributivism, “punishment is justified because people deserve it. In the words of John Rawls,
What we may call the retributive view is that punishment is justified on the grounds that wrongdoing merits punishment. It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing. That a criminal should be punished follows from his guilt, and the severity of the appropriate punishment depends on the depravity of his act. The state of affairs where a wrongdoer suffers punishment is morally better than the state of affairs where he does not; and it is better irrespective of any of the consequences of punishing him.
Statistics from the United States reveal that approximately ninety percent of criminal convictions in the United States result from guilty pleas, the overwhelming number of which are through plea bargains.
Plea bargaining made its debut in Nigeria in year 2004 in the celebrated case of FRN v. Nwude and others. Chief Nwude, Mrs. Amaka Anajemba and Chief Okoli alongside their four companies were arraigned before an Abuja High Court in 2004 for swindling a Brazilian bank, Banko Noroeste S.A., Sao Paulo, Brazil the sum of $242 Million . One of the accused persons Amaka Anajemba changed her plea to a guilty plea in the middle of the trial. The others followed the same trend. Chiefs Emmanuel Nwude and Nzeribe Okoli were both sentenced to a combined prison term of 37 years. They were to forfeit 110 Million Dollars to the Brazilian bank and pay 11.5 Million Dollars to the Federal Government. Chief Nwude got 25 years while Okoli got 12 years. The third accused person, Mrs. Amaka Anajemba was sentenced to two and half year imprisonment. They were also to forfeit their property, including houses and vehicles.
A number of influential Nigerians have benefited from plea bargain, especially when charged with corruption and financial crimes. In 2005, former Inspector-General of Police Mr.Tafa Balogun pleaded guilty to an amended eight count charge of corruption and embezzlement of public funds to the tune of 10 Billion Naira. He gave up most of the funds and got just six months for the offence which attracts a maximum of five-year jail term following a touching allocutus rendered by his lead counsel. Few years ago, former Governor Alamieyeseigha of Bayelsa State was sentenced to 12 years in prison on a six count charge that bothered on corruption and other economic offenses. He was sentenced two years on each count but all sentences ran concurrently, starting from the day he was arrested and detained. .
Also in October 2010, the Economic and Financial Crimes Commission (EFCC) charged the former Chief Executive Officer of Oceanic Bank International Nigeria PLC, Mrs. Cecilia Ibru with a twenty-five count criminal information bothering on financial crimes. She entered into a plea bargain with the prosecution and pleaded guilty to a lesser three-count charge. The Court thereafter, convicted her on the three-count charge and ordered the forfeiture of her assets amounting to about N191Billion. She was sentenced to six months on each of the three counts which ran concurrently. In effect, Mrs. Ibru only spent six months in jail.
There is the thinking in some quarters that the use of plea bargaining was being applied wrongly because most of the suspects allowed to make the pleas were paying back a fraction of the money they had stolen. Critics of the concept, in addition to a plethora of arguments also argue that plea bargain operates as immunity against punishment. It is on this milieu that this paper proceeds to interrogate the argument and ultimately make a case that plea bargain should be viewed as a restorative justice model of punishment, which while not making the offender immune from punishment, adopts measures that makes the offender to first of all acknowledge his/her wrong doing, proceed to make amends and also receive conviction and sentence albeit, minimal sentence.
The article, “Plea Bargain: Immunity From Punishment?” was contributed by
Hon. Justice Ani Comfort Chinyere (Mrs.) LL.B (Hons.) BL; LL.M., Ph. D
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