Administration Of Criminal Justice In Nigeria (4) By Ebun-Olu Adegboruwa, Esq.

In this concluding part, we shall examine the vexed issue of
plea bargain in criminal cases and the bold steps taken through the
Administration of Criminal Justice Act (ACJA), 2015, to achieve
speedy dispensation of criminal cases. It is however important to
note quickly, that in relation to matters of bail for the suspect,
a landmark innovation of ACJA 2015 is the courageous abolition of
the discrimination against women as sureties for the bail of
suspects. Section 167 (3) provides that “a person shall not be
denied, prevented or restricted from entering into a recognizance
or standing as surety for any defendant or applicant on the ground
only that the person is a woman”. A passing discussion of some
matters related to bail will also be made.

Section 161 (1) has simplified the regime of bail in capital
offences, by making statutory clarifications on the very
contentious issue of ‘exceptional circumstances’, which are now
limited to ill health of the defendant that is of such a nature
that there are no medical facilities to take care of the illness by
the authority detaining him. It is however unfair on a defendant,
to compel him to secure a qualified medical practitioner employed
in a government hospital to confirm his state of health.

Since prosecution is still majorly the responsibility of
government, it is wrong to leave the fate of a defendant who is
sick in the hands of another officer of the same government. This
is an indirect indictment of medical practitioners in private
practice or private hospitals, some of which are better equipped
than many public hospitals. The second issue with this is that the
appellate courts have since held that it is wrong for trial courts
whilst granting bail to the defendant, to ask the prosecutor to
verify the addresses of sureties furnished to take the bail of the
defendant. The same principle should apply in the case of the ill
health of the defendant. This is indeed a task for the Nigerian
Medical Association to take up on behalf of all medical
practitioners in private practice.

Section 162 has now clearly reinforced section 35 of the
Constitution on the liberty of the defendant, by making it
compulsory for the court to admit a defendant to bail in all
non-capital offences, unless there is reasonable ground to believe
that the defendant may commit another offence, or may attempt to
evade his trial, influence, interfere with or intimidate witnesses,
or interfere in the investigation of the case, attempt to conceal
or destroy evidence, prejudice proper investigation or jeopardize
the objectives of criminal justice administration. What is then
required in all formal applications for bail, is for the defendant
to address these factors one after the other, in the affidavit in
support of the application.

It used to be the norm that the factors and principles defining
limitation of actions could only apply in civil cases. By section
92 of ACJA however, a six-year limitation period has now been
imposed upon private complaints in respect of offences liable to
summary conviction. Without taking the escape route of public
office holders who now have their cases determined within a
specified period, ACJA has attempted to achieve speedy
determination of criminal cases, by coming down heavily on
frivolous adjournments and delays. Under and by virtue of section
396 (3), upon his arraignment, the trial of the defendant shall
proceed from day to day until the conclusion of the trial.

This is pure self-delusion though, as far as the present-day
circumstances of Nigeria are concerned. Few courts in Nigeria can
ever boast of day to day hearing of cases, due to constant
disruptions of the judicial calendar, by several other factors.
Conferences and seminars are fixed for the most odd times, most
judicial officers are overburdened with too many cases, as where,
for instance, a judge in Lagos State has about 600 cases to deal
with on the average! Although Lagos State pioneered the
classification of courts into civil and criminal divisions, it has
since been discovered not to work effectively.

First, it does not help the profile of a judicial officer, to
tie him down to a specific area of law, when he was trained in the
university and in the Law School, as a general practitioner.
Second, limiting judges to certain areas of law in the adjudication
of cases will not help their judicial career when eventually they
are elevated to the higher bench, where such categorization does
not exist presently. Third, the categorizations are seasonal and
for limited periods of time, not exceeding two to three years,
given that almost every new chief judge would want to achieve some
measure of control and influence upon assumption of office, by
tinkering with postings of judges. So, for instance in Lagos State,
most judges have carryover of cases from their previous judicial
divisions, which they must conclude, which now make some of them to
combine civil, criminal, family and even commercial divisions, all
in one.

By section 396 (4), ACJA pretends to be a legislation outside
Nigeria, when it states that where day to day trial is
impracticable after arraignment, no party shall be entitled to more
than five adjournments from arraignment to final judgment, provided
that the interval between each adjournment shall not exceed 14
working days. In section 396 (5), it is stated further that where
it is impracticable to conclude a criminal proceeding after the
parties have exhausted their five adjournments each, the interval
between one adjournment to another shall not exceed seven days
inclusive of weekends.

By simple arithmetic, it means that both the defendant and the
prosecution can have ten adjournments altogether and thereafter,
unlimited adjournments not exceeding five days interval. It is
nothing but a convoluted piece of drafting, to have limited
adjournments in unlimited fashion. The reality of present day
Nigeria is that no legislation should attempt to limit or gag the
discretionary power of the courts or subject judicial officers to
undue haste or pressure, in the absence of other corresponding and
complimentary factors, facilities and equipment, as exist in the
other jurisdictions that we are trying hard to emulate.

In situations where a judge is faced with multiple criminal
cases, one charge running with about 170 counts, with bundles upon
bundles of documents, about 50 witnesses, some of them forensic
experts that have to be thoroughly examined and cross-examined,
then how do you ask a human judge to handle fifty of such cases and
conclude their trials in 140 days and still be alive to deliver the
judgments? The State is simply living in self-denial, with these
outlandish provisions. The frustrations being experienced by the
State, by the victims of crime and indeed society at large are all
well appreciated, but the solution is to embrace a holistic
revolutionary approach to tackling the issues of delay in criminal
justice administration, rather than trying to kill judges with
crowded judicial calendar.

Now to plea bargain. This has not been part of our criminal
justice system until the promulgation of the Economic and Financial
Crimes Establishment Act, which hitherto authorized the agency to
compromise some cases in exchange for recovery of assets or money.
So, it was excusable to some extent then, to embrace the idea of
plea bargain, in corruption cases where the target is mainly
recovery.

However, ACJA has now codified the regime of plea bargain in
section 270 thereof, outlining a very robust and detailed procedure
for plea bargain. From these provisions, it would seem clear that
the objective of plea bargain generally is to avoid the
consequences of long trials and delayed justice, especially to the
victims of the criminal conduct. Section 270 of ACJA provides that
the defence can write to the prosecution for plea bargain, while
the prosecution can equally enter into plea bargain with the
defendant, with the consent of the victim or his representative,
during or after the presentation of the evidence of the
prosecution, but before the presentation of the evidence of the
defence.

Different schools of thought exist in respect of plea bargain.
While some strongly believe that it is merely a slap on the wrist
of a criminal, some others view it as a smart tactic by the State
to achieve conviction by stealth. When one considers the length of
time it takes to secure conviction in very serious criminal cases,
the absence of forensic criminal investigation, the period of
appeal up to the highest court of the land and the general
perception of the public that the courts are ineffective in
punishing influential defendants, then one cannot but appreciate
the frustration of the State in adopting this abridged method of
criminal justice. As far as corruption cases are concerned, plea
bargain is still the best option so far, at least for recovery and
restitution of looted assets.

In this regard, what was alleged to have been stolen must be
properly verified and audited, and then the defendant must be
willing to return all that he has stolen. But even at that, plea
bargain cannot avail in all general cases of criminal misconducts.
A defendant who has opted for plea bargain should still be made to
carry the stigma of his thievery or felonious act, by ensuring that
he does not hold any public office again, that he is not allowed to
be a director of any company and he should be made to forfeit any
national award or honour that was previously conferred on him.
There must be something to show, to all and sundry, that the
defendant was once a thief or a confessed felon, who cleverly
escaped his due jail term, by returning all the he stole. Then we
will all know that we are serious about reforming our criminal
justice administration.