The word “plea bargain” is a two independent words joined together to form a single word. The word “plea” has been defined to mean “an accused persons formal response of “guilty”, “not guilty”, or no contest to a criminal charge.¹ And the word “bargain” has been defined as an agreement between two or more people or groups as to what each will do for the other.²
Without deviating to another issue, plea bargain has been defined by Administration of Criminal Justice Act, 2015 as;
“The process in criminal proceedings whereby the defendant and the prosecution work out a mutually acceptable disposition of the case, including the plea of the defendant to a lesser offence than that charged in the complaint or information and in conformity with other conditions imposed by the prosecution, in return for a lighter sentence than that for the higher charge subject to the Court’s approval”.3
Plea bargain as defined supra shows that the defendant plea “guilty” to a particular offense for a lesser punishment or for the drop of other charges against him based on the consensus reached by the parties involved. However, this is subject to the Court’s approval.
Emergence OF THE CONCEPT OF PLEA BARGAIN
The concept of plea bargain has been traced to the early 19th century when the adversarial system of adjudication began to rapidly evolve.⁴Legal technicalities that accompanied the adversarial system of jurisprudence complicated the simple criminal justice system leading to delays in the dispensation of criminal justice.5
It’s a common saying in the legal parlance that ‘delay defeats justice’. The technicalities that come with dispensation of justice in the adversarial legal system is so complex. This makes criminal cases to last for years in court based on technicality and wants of evidence to prove beyond reasonable doubt as required in criminal trials.
Plea bargaining for long has been seen as an option to overcome the technicality involved in dispensing justice in some jurisdiction while some also frown at it because, to them, it portrays trading justice with money. On this, a Former Chief Justice of Nigeria Dahiru Mustapha has this to say;
“It has no place in our law-substantive or procedural. It was invented to provide soft landing to high profile criminals who loot the treasury entrusted to them. It is an obstacle to our fight against corruption. It should never again be mentioned in our jurisprudence”.6
In the United States of America, it has been proven that roughly ninety percent of the criminal defendants convicted in state and federal courts plead guilty rather than exercise their right to stand trial before a court or jury.7 with this statistics, it shows that the practice has been fully established and has received judicial blessing in the USA.
Laws governing plea bargaining in Nigeria with references to EFCC act and ACJA
Plea bargaining was secretly incorporated in to Nigeria’s Legal system by Economic and Financial Crimes Commission (Establishment) Act No. 1 of 2004.
S14 (2) of the EFCC Act provides that:
“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”8
It’s beyond any doubt that the provision is only applicable to offences recognized and punishable under the EFCC Act, and making the powers of the Attorney general of the federation enormous by subjecting the section to S.174 of the constitution of the federal republic of Nigeria.
The word “compounding” of offences as used in the Act refers to the power of the Commission to drop some of the charges if the defendant is prepared to give up such sum of money as the commission may deem fit in accordance with the Act.9
Despite the fact that the practice and procedure is not well defined in the Act, it has been dubiously used in high profile cases without taking into consideration, the interest of the nation. The first case in which the concept of plea bargain was applied in Nigeria is FRN v Tafa Balogun.10 The defendant was arraigned with a 70 count charge of corruption on a massive scale, which were reduced to 8 count charge of money laundering through plea bargaining.11Judge Binta Nyako in her judgment sentenced Balogun to only 6 months in jail which was to run concurrently and according to her, 67 days already spent in detention during the trial, was to be subtracted.12
What transpired in the case of the Mr. Tafa Balogun was a not in any way in the interest of the public. A man who was accused for mismanaging over 17.7 billion naira was sentenced to six months imprisonment.
This practice has been frivolously used by EFCC in many cases. EFCC extended the practice to the case of Chief D.S.P. Alamieyesigha who was docked on corruption charges.13Furthermore, a Federal High Court in a most laughable manner imposed a paltry fine of N3.5M on Governor of Edo State who was charged with stealing billions of naira from the public on December 28, 2008.14
Despite the fact that plea bargaining has been arbitrarily used in Nigeria, it would be totally wrong to deny its importance.
Without prejudice, the advantages of plea bargaining in developed countries are numerous and not limited to: the practice does not waste the time of court, it reduces the cost of litigation for both parties, most especially the accused who will need to pay huge amount of money to high profile lawyers to defend him. The practice also relieves the stress of rigorous research by the prosecution in searching for evidence. However, the largest body in the country entrusted with the fight against corrupt politicians and abuse of offices has portrayed the practice of plea bargaining to be nothing other than a tool for big and corrupt politicians to escape justice with little or no punishment.
In quest to improve our criminal justice system, the Administration of Criminal Justice Act, 2015 includes plea bargaining as an option in criminal trials. It defined it and set out procedures for its application. All this are clearly entrenched in S.270 to 277 of the Administration of Criminal Justice Act, 2015.
The Act allows a prosecutor to make an offer of plea bargain or accept it from an accused or on his behalf, and the Act forbids plea bargaining in any capital offence.15
The Act also set out conditions that must be fulfilled before plea bargaining is agreed upon. S270(2), (a-c) of ACJA provides;
- he evidence of the prosecution is insufficient to prove the offence charged beyond reasonable doubt;
- where the defendant has agreed to return the proceeds of the crime or make restitution to the victim or his representative; or
- where the defendant in a 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.”16
It is established that before a prosecutor can secure the conviction of an accused person, he must prove his case beyond reasonable doubt.
It is my submission that based on the provision of paragraph (a) Supra, if a corrupt man knows that the reason why the prosecutor his making an offer of plea bargaining to him is because the prosecutor has no sufficient evidence to prove his case as required, why then should he accept the offer?. Instead of submitting what he has embezzled, he would proceed with the trial, watch as the prosecutor beats around the bush and enjoy the proceedings as he would be discharged and acquitted.
Another problem with that paragraph “a” is: A lawyer who wants to add to his profile by winning more cases will not allow his client to go for plea bargain based on the condition in paragraph “a”.
The act further stressed that the prosecutor must be satisfied that the offer of the plea bargaining is in the interest of justice, public interest, public policy and the need to protect the abuse of legal process.17
A critical analysis and perusal through the provisions of S270-277 shows that it’s a better development for a developing country criminal justice system.
This should be one thing that should never be joked with by any governmental organization in Nigeria. This interest is expected to weight down their own personal or godfather’s interest. But reverse is the case in the country as all bodies always put their own interest above the country and public interest at Large.
Per Onu J.S.C (as he then was) in the case of Amadi and Ors v State held that:
“It is an established principle of law that it is the prerogative of the prosecution to decide in the light of what the public interest requires, in any particular case, who shall be charged and with what offences.”18
This showcase that, the prosecution should not just do things haphazardly. Who to be prosecuted, charges and whether to use plea bargain or not must be in good faith with the public interest as prerequisite.
The Court of Appeal and the Supreme Court in the case of Okomu Oil Palm Ltd. V. Okpame19 and Godwin Josiah v State20clearly emphasized on “justice for the society” as one thing that should always be considered in trials.
As part of judicial activism, Justice should not just be what the prosecution and the court see as justice. Without prejudice to the right of an accused, Justice must serve the interest of the public and the interest of the offices abused.
The Economic and Financial Crimes Commission and other Law Enforcement Agencies should, in discharging any part their duties, take into consideration, the public interest. The use of plea bargaining in criminal trials should not be subjected to any arbitrariness. And its application should not be of such that will jeopardize the interest of the nation.
Plea bargaining has been used successfully in many jurisdictions because of its advantages. However, its use might be perilous in a country where Ministries, Agencies and Organizations are not free from corruption. Many have called it an attempt by EFCC to trade justice with confession and little money. Its application without considering public interest and seek justice for the society has made a lot of people to lose their hope in the EFCC fight against corruption.
Public interest should serve as one of the prerequisites for the application of plea bargain by all the law enforcement agencies in the country. This will not only strengthen the people’s trust in law enforcement agencies, it will also serve as a warning to corrupt politicians that the interest of the public supersedes their personal interest.
- Ted C. Eze and Eze Amaka G, ‘A CRITICAL APPRAISAL OF THE CONCEPT OF PLEA BARGAINING IN CRIMINAL JUSTICE DELIVERY IN NIGERIA (2015) (3) (4) Global Journal of Politics and Law Research, 31
- Google: meaning of bargain, EJLT https://www.google.com/search?q=meaning+of+bargain&oq=meaning+of+bargain&aqs=chrome..69i57j0l3.7580j1j4&client=ms-android-transsion-infinix-rev1&sourceid=chrome-mobile&ie=UTF-8> accessed on August 29 2020
- ACJA, 2015, S 494 (1)
- Ibid n1 p32
- Daily post: CJN rejects plea-bargain for corrupt politician (2011), EJLT https://www.google.com/amp/s/dailypost.ng/2011/11/16/cjn-rejects-plea-bargain-for-corrupt-politicians/.Accessed on August 29 2020
- Bayo Adetomiwa, the concept of plea bargaining in Nigeria (2018), EJLT https://www.mondaq.com/nigeria/crime/753394/the-concept-of-plea-bargaining-in-nigeriaaccessed on August 29 2020
- EFCC ACT, 2004 s14(2)
- Ibid ( n1) 38
- Ogundare Bisola: the current legal framework on plea bargain in Nigeria (2019) EJLT https://ssrn.com/abstract=3429822Accessed on August 30 2020.
- Ibid (n1) 38
- ACJA, 2015, s270(1)(a)(b) and s274(3)
- ACJA, 2015, s270(2)(a)(b)(c)
- ACJA,2015, s270(3)
- AMADI & ORS. V. THE STATE (1993) LPELR-440(SC)
- OKOMU OIL PALM LTD. V. OKPAME (2006) LPELR-7708(CA)
- GODWIN JOSIAH V. THE STATE (1985) LPELR-1633(SC)
About the writer: Ridwan Sulaiman Adeshina is a 200level law student of Ahmadu Bello University, Zaria. He also has Diploma in Law from the same Institution Adeshina loves writing a lot, including poem. He likes making research and engage himself in academic discussions. He also loves traveling and meeting new people. His free time are best used writing or reading academic books.