Plea Bargain As Elite’ Escape Route From Justice – TheNigerialawyer

Romanus Okoye

Continually, opinions differ on whether plea bargain in the
Nigeria criminal justice system, encourages or curbs
corruption.

The concept, which is relatively new in Nigeria, is defined in
Section 494 (1) of Administrative and Criminal Justice Act as “The
process in criminal proceeding 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 charges, subject to the
court’s approval.”

Reference to some cases of plea bargain will highlight how it
usually generates clash of opinions; sometimes, in the form of
public condemnations or outright rejection by the presiding
judge.

In 2008, former governor of Edo State, Chief Lucky Igbinedion
was arraigned by the EFCC before the Federal High Court, Enugu on a
191- count charge bordering on corruption, money laundering and
embezzlement of N2.9b. He entered plea bargain with the EFCC and
ended up refunding N500m, 3 properties and pleaded guilty to
one-count charge. There was a general outcry and feeling of
disappointment by Nigerians who felt that the terms of agreement
would not serve any deterrent purpose.

In another matter, a staff of INEC, Christian Nwosu and two
others, Yisa Olanrewaju Adedoyin and Tijani Bashir were on March
27, 2015 docked before Justice M. B. Idris of the Federal High
Court, Lagos on a 7-count charge bordering on receiving
gratification to the tune of N264,880,000.00. The money is part of
the N23billion alleged Diezani-bribe, meant to compromise electoral
officers before the 2015 general election.

The second and third defendants, Adedoyin and Bashir, pleaded
not guilty to the charges while the first defendant, Nwosu, pleaded
guilty. The prosecution counsel told the court that the first
defendant had entered a plea bargain with the Economic and
Financial Crimes Commission (EFCC). He said that Nwosu though was
the one who went to the bank to sign for N264, 880,000 but actually
received N30, 000,000.00 as Director and Administrative Secretary,
INEC, Kwara State.

He also told the court that the first defendant had admitted
essentially to the ingredients of the alleged offence in his
statement to the Commission and had shown remorse as well as given
useful information to aid the prosecution of the case. He added
that Nwosu, had entered into an agreement to forfeit the properties
to the Federal Government which were listed in the plea bargain and
the EFCC had recovered N5m from him, since he had spent N25m in
acquiring properties and urged the court to convict Nwosu in line
with the adopted terms in the plea bargain.

There is also a case of former officials of banks indicted in
the N8Billion CBN currency scam. One of them, Oni Adewale Dolapo
entered plea bargain with the prosecution.

Also, Justice Abubakar Talba of the Federal Capital Territory
High Court, Gudu, Abuja, on Monday, December 14, 2015, warned
counsel to the accused persons not to broach the idea of plea
bargain in his court. The syndicate allegedly swindled the Federal
Government the sum of N1.2billion in a pension scam.

The accused persons-Ibrahim Ahmed Mazangari, Muhammed Sani
Sulaiman, Hajia Fatima Mazangari and Saleh Yerima Tsojon- were
offered a biometric contract by a former Head of the Civil Service
of the Federation, Steve Oronsaye, to regularize names of
pensioners on the pensions’ payroll. But they allegedly smuggled in
names of fake pensioners and collected unearned pension.

At their trial, counsel to the first and fifth accused persons,
Sale Sule, informed the court that his clients who were facing
29-count charge bordering on conspiracy and stealing by false
pretense, had opened a plea bargain discussion with the
prosecution. “Don’t mention plea bargain here. I don’t want to hear
about it” Justice Talba forbade him.

On July 30, 2019, Justice M. B. Idris of Federal Capital
Territory Court, Nyanya, Abuja, struck out a plea bargain entered
by a defendant, Favour Ebebeinwe Ogagaoghene with the prosecution.
The judge rather convicted him as an internet fraudster to three
years imprisonment without an option of fine.

Ogagaoghene was prosecuted by the EFCC, for defrauding one
Patricia Johnson, a United States of America citizen of the sum of
$11,450, (Eleven Thousand, Four Hundred and Fifty, US Dollars). His
victim had petitioned EFCC that the convict deceitfully posed in
the social media as American Gareth Wilcoxon, and professed love to
her. The prosecution in view of the defendant’s guilty plea, urged
the court to convict and sentence him accordingly, in line with a
plea bargain he entered with the EFCC.

However, Justice Idris refused the plea bargain agreement,
stating that the court had discretional powers to deliver the
judgement by applying the Cybercrime Laws and imprisoned the
defendant.

Similarly, Justice Joyce Abdulmalik of the Federal High Court,
Ibadan Judicial Division, on Monday, May 27 rejected a plea bargain
arrangement prepared to secure a light punishment for one Hassan
Adesegun Adewale, who was found guilty of cybercrimes.

Hassan, who was arraigned on a one-count amended charge of
fraudulent impersonation by EFCC, had entered into plea bargain
that proposed a six-month jail term as punishment for the crime.
But the judge held that the proposed punishment was too light,
adding that it would not serve the purpose of deterrence for which
it was meant. He rather slammed him with one year jail; ordered him
to restitute the sum of $1000 (One Thousand United States of
American Dollars) to his victim and also to forfeit one Iphone
X-Max, Nokia 105 Phone, Hp Laptop to the Federal Government of
Nigeria.

During the hearing in an alleged N15m fraud involving three
employees of Dangote Cement, Ibese, Ogun State, and one other
person on December 17, 2018, before Justice O. J. Bamgbose of the
High Court of Ogun State, both the first and second defendants,
Adewale Dameilda and Ibrahim Lawal respectively, changed their
earlier plea of not guilty to guilty to seek plea bargain.

The suspects alongside Luqman Lawal and Afeez Olaniba were
arraigned by EFCC, on a two-count charge bordering on conspiracy
and stealing the sum of N15m. The complainant, Dangote Cement,
alleged that Dalmeida, a Fleet Analyst; Lawal, Chief Driver; Adam,
a Ghanaian driver and Olaniba, who is an agent of a contractor to
Dangote Cement, diverted trucks carrying 800 bags of cement valued
at over N15m meant for the company’s customers in Togo, using fake
identification cards and number plate.

A lawyer and National Co-ordinator, Human Rights &
Accountability Initiative, Peter Odia, commenting on the whole
concept of plea bargain particularly the Lucky Igbinedion case,
said that it was rooted in terrible legal advice, inefficiency,
secrecy, and stinks of underhand dealings.

Odia suggested that in Nigeria, for plea bargain to be
effective, there should be a legislation that will create a legal
frame work to ensure that whoever will be appointed as prosecutor
for a particular case, must have the technical knowledge of every
element of the offence, a sound understanding of the likely
evidence to be adduced, a reasonable understanding of the Law and
the interest of the state.

He said that there should also be a check on the powers of the
prosecutor to negotiate a plea bargain by resorting to the Attorney
General if charges are being dismissed, discounted or the accused
is being promised no further prosecution.

A Senior Advocate of Nigeria, Chief Mike Ozekhome while
commenting on plea bargain explained that the said Lucky Igbinedion
and Kiva Corporation Ltd., pleaded guilty to some of the counts in
the said amended charge, as they had agreed, and were convicted
accordingly.

He said that the appellant, who insisted that they agreed that
the principal actor, Lucky Igbinedion, should take the fall, did
not provide any evidence of such an agreement with anyone. That
even if there was such an agreement for one accused to take the
fall, the Court of Appeal was absolutely on point when it held that
plea

bargain must be a conscious and deliberate act between the
prosecution and an accused with a plea of guilty being an avert act
on the part of the accused in evidence of the plea bargain.

“The concept of plea bargain, clearly operates in personam, so
to say, and not by privy or proxy. A plea bargain must be a
deliberate and conscious act taken by the prosecutor and a
particular accused, wherein the accused must suffer a conviction no
matter how insignificant or trivial the offence to which the
conviction relates. But there was never personal suffering of
conviction of any kind in respect of any of the charges.”

Chief Ozekhome said that his initial stance on plea bargain has
always been salutary and a welcome relief from the drudgery and
expensive nature of litigation. He, however, said that this view is
now moderated, stating that experience has shown how overtime, it
has been gravely abused and corrupted by the state itself and
high-healed members of the society.

“This is why I am now of the firm view that plea bargain itself
now reeks of corruption” he said. “This position may look extreme.
However, that is the pure truth. All that happens in a plea
bargaining is not more than admission and confession under the law
of evidence except that the accused is offered lesser
sentence.”

He noted that although a judge has discretion when it comes to
sentencing, that he is of the opinion that such discretion should
not be based on a plea entered by the accused in return for a
lesser sentence or reduced charge offered by the prosecution;
adding that the matter becomes worst when it is applied to a case
of corruption.

“Plea bargain is becoming an escape route to corrupt government
officials no doubt. He said, “It is disheartening to see today in
our country that these corrupt government officials after stealing
billions of naira will end up entering a guilty plea and they would
be asked to return what they declared to have stolen and bag a
lighter sentence.”

He cited the case of Tafa Balogun v. F.R.N (2002) 7 NWLR (Part
767)606 where the former IGP was sentenced to six months
imprisonment while the sum of $150 million worth of cash and
property was seized by the government.

He noted that plea bargain was corrupted in the past, when the
prosecutors and judges were corrupt and would conspire with
offenders to, for instance, pay N3 million for someone who stole
one billion naira and then go behind to share the money.

He expressed hope that if it is done the way it is done now,
once a case has been charged and the defendant wants plea bargain,
the prosecutor will draw up terms and both parties would agree and
then approach the judge who would go through the terms and then
decide on whether to approve or not; and can even reject it, if it
looks suspicious and the case will be made to start afresh before
another judge.

Despite these anomalies, he however noted that plea bargain has
its advantages. First, that the accused can avoid the time and cost
of defending himself at trial, the risk of harsher punishment and
the publicity the trial will involve. Secondly, both sides are
spared the uncertainty of going to trial. And thirdly, the court
system is saved the burden of conducting a trial on every crime
charged.

Ozekhome said that plea bargain is an indicator of the
development of a country’s criminal justice system. “It is
absolutely essential because when you file about three to five
charges against a person and one is extremely serious while the
others are not too serious, you may find that in the process of
investigation, you don’t have conclusive evidence for the most
serious charge but you have sufficiently, convincingly, evidence
for the less serious charges.

“If you go on a wild goose chase over the major charge, the case
may go on for a long time and you spend a lot of resources on
prosecuting the matter. And at the end, the case may be lost and
this doesn’t make sense. Another instance, is where a person has
been charged with looting billions of naira and the normal
punishment would have been five years. But when he agrees to plea
bargain and admits guilt, the sentence is reduced. So, it saves the
state a lot of resources, time, energy and money.”

Moreover, there are different views about plea bargain. For
instance, Justice Dahiru Musdapher (as he then was) believed that
plea bargaining was a novel concept of dubious origin and had no
place in our substantive or procedural law.

It is also argued that it is being used to provide soft landing
for influential and elitist law breakers while ordinary persons who
commit crime of lesser offences languished in prisons. A renowned
Professor of International Law, Akin Oyebode, in his lecture titled
‘Plea Bargaining, Public Service Rules and Criminal Justice in
Nigeria expressed his mind in these words “…the thinking of the
majority seldom coincides with that of their rulers who would
always be trusted to be desirous of wanting to protect their
own.”

Prof. Oyebode noted that the expectations of some lawyers that
plea bargaining would be cost-effective and help de-clog the
judicial system are apt to receive a hard hearing in a society
where a common goat or yam thief goes to jail while the white or
blue collar criminal is given a mere symbolic sentence. Most of
which, he said, is either served in pleasurable surroundings or
offered the opportunity of fines in lieu of incarceration.

Meanwhile, Section 270 (3) of the ACJA provides that where a
prosecutor is of the view that the offer of acceptance of a plea
bargain is in the interest of justice, the public interest and
public policy the need to prevent abuse of legal process, he may
offer and accept the plea bargain.

While writing on the practice and procedure of plea bargain,
Samuel Idhiarhi, a Chief Magistrate Grade II in the Federal Capital
Territory explained that parties to a plea bargain agreement are
the prosecutor and the defendant, and to some extent, the victim of
an offence. He further explained that either side may make the
offer.

“There are two stages at which a plea bargain can be entered
into; firstly, before the defendant had pleaded to the charge or,
secondly, during or after the presentation of the evidence of the
prosecution but before the presentation of the evidence of the
defence. However, he stated that further specific preconditions
could be prescribed, at either stage, before the prosecutor may
enter into a plea bargain.

“Generally, prosecutions are the domain of the Attorney General
though usually acting through others. By section 270 (7) (d) of the
ACJA, a copy of every plea bargain agreement should be forwarded to
the Attorney General of the Federation.”

The United Nations adopted the Declaration of Basic Principles
of Justice for Victims of Crime of November 29, 1985 which imposes
a duty upon prosecutors to provide specific information to victims
about various aspects of the criminal trial process – including
plea bargains and sentencing.

Under the ACJA, the consent of the victim is required and he is
to be afforded the opportunity of making representations regarding
the contents of the agreement and the inclusion of a compensation
or restitution order. The defendant’s agreement to return the
proceeds of the crime or make restitution to the victim or his
representative will be a precondition for the prosecution to plea
bargain after issues have been joined; so also, before plea was
taken, the defendant’s willingness to make restitution or pay
compensation to the victim where appropriate is one of the factors
to be weighed in deciding whether public interest will be better
served by entering into the agreement.

Another lawyer, Tochukwu Nweke reemphasized that plea bargain is
recognized now in our laws by section 270 of the Administration of
Criminal Justice Act 2015 and does not encourage corruption. “The
offender doesn’t really go without some pain” he said. “It is
expected of the defendant to give something in return; like
returning the stolen money in the case of corruption cases or in
other cases compensating/restituting the victim in exchange for a
lesser sentence.

He cited section 14 of the EFCC Act, where the Commission was
given power to compound an offence if it receives or recovers the
money from the offender, which also is akin to plea bargain. He
emphasised that the essence of plea bargain is to undo or
ameliorate the wrong that has been done and then do away with the
long hurdles of trial and unnecessary punishment of an offender who
has cooperated with the government or with the victim as the case
may be.

He concluded that plea bargain has really not been abused in
Nigeria, rather, it has not been effectively utilized. He expressed
hope that most corrupt people would be willing to surrender the
proceeds of their loot in exchange for conviction for lesser
offences, minimal sentences or exoneration from prosecution. “If
this is effectively explored, there is high tendency of recovering
50 per cent of the loots. Perhaps in the quest to penalise
offenders to serve as a deterrent , the government becomes either
incapable of recovering those loots based on insufficient proof of
the offences and the frustration that attends long trials and the
technicality of our judicial system.”

The acting Chairman, Economic and Financial Crimes Commission,
EFCC, Ibrahim Magu, who spoke at a retreat on July 26, 2019, about
“Promoting Synergy among Stakeholders for Effective Prosecution of
Economic and Financial Crimes”, said that the concept of plea
bargaining is instrumental to the “high rate” of conviction
recorded by the Commission. “It has boosted our conviction rate
which already stands at 666 this year alone. But we have to discuss
and review our plea bargain processes in line with our core values
to prevent abuse and corrupt practices,”

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