Is plea bargain fair practice in Nigeria’s criminal justice system? — By Taiye Agbaje
5 min read
Court
The judiciary is the arm of government that protects the rule of law and ensures the supremacy of the law; it interprets the law and safeguards the rights of the individual or group of individuals and entities.
And in doing so, the court also exercises judicial powers to try criminal offenses taking into consideration the provisions of the law.
One of such provision is the plea bargain under the Nigerian criminal justice system. Lawyers are divided on the effectiveness of plea bargains as an instrument of justice administration. While some the legal practitioners think that it helps the system, others consider it fraught with inadequacies that make it prone to abuse.
According to a Lagos-based legal practitioner, Josephine Ijekhuemen, the doctrine was imported from the American criminal justice system into Nigeria’s corpus juris.
She said the regulatory frameworks that introduced the concept of the plea bargain in Nigeria include the Economic and Financial Crimes Commission (Establishment, etc) Act and the subsequent Administration of Criminal Justice Law, ACJL, of Lagos State, as part of efforts to recover stolen funds.
“Plea bargain is a novel practice. It became popular during the anti-corruption trials whereby certain individuals, mostly the elite, negotiated lesser sanctions,” she said in a recent interview with the News Agency of Nigeria.
But for Abdul Ibrahim, SAN, plea bargain is not only related to corruption cases, but could also be applied in other crimes.
“With reference to the corruption cases, I think it is not the plea bargain itself that is the problem. It is the operation of the plea bargain and how it is arrived at that is the problem,” he said.
Citing an instance, Mr Ibrahim said “a man embezzles N5 billion and you asked him to return N2 billion, this is not too good.
“But if N5 billion is stolen and you recovered N4.7 billion, leaving the others you cannot trace, I think this is all right.
Another legal practitioner, Afam Osigwe, SAN, said in every part of the world where government is serious about fighting financial and economic crimes, plea bargain is one of the instruments adopted to avoid lengthy trials.
Mr Osigwe, however, warned that the practice should not be abused.
According to him, there is nothing wrong with plea bargain, even the U.S. government resorts to it at times, and that way, the government rakes in a lot of money because the whole idea is to recover stolen wealth.
He, however, said that what Nigerians should be concerned about is the extent to which provisions of plea bargain are transparent.
But Jubrin Okutepa, SAN, said that plea bargain as being operated in Nigerian justice system is prone to abuse, stressing that there are guidelines on how people could observe plea bargain and its consequences as put up by the Presidential Advisory Committee Against Corruption, PACAC.
The PACAC was set up to scale up advocacy against corruption in private sectors and professional associations as part of efforts to fight corruption.
Mr Okutepa said looking at the guidelines set up by the committee, it would work if there was a will power on the part of the state to push it through and also a will power on their part not to defeat the guidelines by not granting state pardon to the looters.
He called on states to put in place sufficient funds and technological materials that would nip in the bud some of the scientifically organised crimes in terms of money laundering and other corruption related offences.
However, Balarabe Musa, former Governor of the old Kaduna State in the second republic, described plea bargain as “the height of corruption in the system’’ which made the political leadership even more guilty.
“Plea bargain is sending a wrong message that everybody is at liberty to steal and once you are caught the worst you can do is to plea bargain with the government or political leadership and in the end you would work away with something substantial.
Mr Balarabe recalled that the issue of corruption or any leader stealing public funds and getting away with it was not part of the country’s political game during the period of amalgamation till 1965.
According to Elias Offor, plea bargain introduces restitution in the criminal jurisprudence in a very awkward way.
“Due to the way it is being practiced in Nigeria, it encourages graft. A case of gross misappropriation that warrants death penalty in some countries will be accorded remission by plea bargain where after, the culprit walks the road unperturbed. Plea bargain in the manner it is being practiced in Nigeria makes mockery of the country’s laws,” he said.
“The introduction of plea bargain into Nigeria’s criminal jurisprudence by the Administration of Criminal Justice Act and the domesticated versions in various States, is a welcome development,” said the national welfare secretary of the Nigerian Bar Association (NBA) Mr Kunle Edu.
His words: “It also reduces the cost of criminal prosecution. So, I see plea bargain as a win-win arrangement amongst the prosecutor, the defendant, the court and also the general public,” he said.
A Lagos-based lawyer, Osita Enwe believes that to effectively use plea bargain as a shield against prosecution, the plea and the bargain should occur after an arraignment, adding that any of such agreement was acceptable to the court.
Citing section 14(2) of the EFCC Act, Mr Enwe argued that the section allows the Commission to enter into a plea bargain with only an accused person and not a mere suspect.
However, The Attorney-General of the Federation, Abubakar Malami, SAN, has said the abuse of plea bargain due to procedural lacuna in the law is responsible for public distrust of the arrangement.
Mr Malami, while speaking through the Solicitor-General of the Federation and Permanent Secretary, Federal Ministry of Justice, Dayo Apata, at a virtual stakeholder roundtable for the `review of the plea bargaining guidelines for federal prosecutors’ said the procedure was open to abuse.
He said section 270 of the Administration of Criminal Justice Act, ACJA, 2015, “provides the general legal framework for the application of plea bargain”, but noted that the provision was inadequate to ensure the protection of public interest and prevent abuse.
“I believe that this provision can also be effectively deployed to address the compounding of offences which features in some statutes but without any procedural detail to aid its application.
“This lacuna is responsible for abuses in compounding of offences which had strengthened the current public skepticism about plea bargaining in general,” Mr Malami said.
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