Debating The Plea Bargain Option

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For Nigeria to fully embrace the plea bargain policy and
consider it effective, government must include stringent conditions
that would discourage potential looters, writes Alex
Enumah

On Tuesday, March 23, the Ministry of Justice organised a
virtual roundtable to review the Draft Guidelines on Plea
Bargaining for Federal Prosecutors. Attorney General of the
Federation and Minister of Justice, Mr. Abubakar Malami, SAN had at
the meeting described the development of the Draft Guidelines as
one of the strategic interventions by the Federal Ministry of
Justice towards ensuring lasting reforms in the Criminal Justice
Sector in Nigeria.

“You will recall that the purpose of the Administration of
Criminal Justice Act (ACJA), 2015, as detailed in section 1(1) is
to guarantee that the system of administration of criminal justice
in Nigeria promotes the efficient management of criminal justice
institutions; ensures speedy dispensation of justice, protects the
society from crime; and protects the rights and interests of the
suspect, the defendant and the victim”, he said.
The Minister, who was represented at the occasion by the Solicitor
General of the Federation and Permanent Secretary, Ministry of
Justice, Mr. Dayo Apata, SAN, told the gathering that one of the
major innovations of ACJA aimed at achieving these objectives is
the introduction of plea bargain.

Quoting Section 494(1) of the ACJA, he described Plea Bargain
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 of the higher charge subject to the
court’s approval.”

The AGF went further to observe that effective deployment of the
provisions of Plea Bargain would among others, enhance the recovery
of the country’s stolen assets by public office holders, hence the
need for an appropriate and effective guidelines for the
prosecutors, who are saddled with the responsibility of ensuring
that justice is meted out to criminals.

“As you are well aware, the Justice system in our nation is
presently fraught with a lot of challenges, which prolong
adjudication time and most times frustrate parties. The effective
deployment of Plea Bargain provisions will therefore, reduce the
financial cost of prosecutions, hasten trial process, eliminate
uncertainty of trials, enhance the quick return of stolen assets,
and generally, enhance the efficiency of the criminal justice
system”, he said.

It is apt to state at this point that Plea Bargaining is not a
new concept in Nigeria’s jurisprudence. It may be one of the major
innovations of the ACJA, 2015, like the minister noted, Plea
Bargaining however preceded 2015, as it was allegedly deployed to
resolve some issues of corruption of some public office holders
under the tenure of former President Olusegun Obasanjo.

A lot of corrupt public office holders were said to have
returned stolen public assets to the government under various
agreement, which were not made public. It is therefore believed
that those public office holders brought to the open for
prosecution were those that the then president chose to
embarrass.

Speaking on the issue, a senior lawyer, Mr. John Baiyeshea, SAN,
said Plea bargain as a concept has both negative and positive
effects. “The positive effect is that it saves time if the person
accused of corruption (and they are so many in this Country),
admits, and agrees to pay back the illicit money to the State.

“This will be done in exchange for promise by the State not to
insist on maximum sentence/punishment for the accused upon
conviction”, he said.

The senior lawyer went ahead to cite the case of Mrs. Cecelia
Ibru accused of running down former Oceanic Bank. “She forfeited
more than 40 properties and huge amount of money to the Government
in exchange for light prison sentence. She eventually avoided going
to jail.

“If plea bargain had not taken place, perhaps 10 years since
2008, she would probably still be in Court with Government trying
to prove the case”, Baiyeshea noted.
On the other hand, he cited the case of former Abia State Governor,
Senator Orji Kalu as an example of intractable and long years of
prosecution. He lamented that after more than ten years of trial,
the Supreme Court set aside Kalu’s conviction for a very technical
reason.

“So, good as plea bargain may be, it can (and has indeed been
like many Nigerian policies), despite its potentials for
possibility of recovering so much looted fund, been subjected to
gross abuse”, he said. Similarly, the policy has been queried by
some for being too soft and liberal on looters and the big thieves
of the people’s commonwealth. It is also believed that the policy
allows looters to give back what belongs to the people, in a manner
that suggests the looters are doing the Nation a favour.

Baiyeshea, therefore, argued that any policy that would allow
thieves to keep part of the proceeds of corruption under the guise
or disguise of plea bargain was immoral and ungodly and would
encourage more people to steal.

“In the past, the plea bargain was abused in most obscene and
condemnable manner. For instance, a former Governor of Edo State,
was only given a paltry fine of N3m (no prison sentence), for
humongous corruption relating to the funds of Edo State. In such
situations, the person goes home to enjoy the loot while the Nation
bleeds to ‘death’ in its economy”, he remarked.

The senior lawyer cum clergyman noted that a major reason for
discussion on plea bargain was because the big thieves were able to
manoeuvre the Nation’s entire legal system.

According to him, they have the fund to hire the lawyers to
defend them. “In fact, when they steal, they steal enough to be
able to afford legal fees no matter how high. And again the entire
system succumbs to corruption in such a way that, convictions are
so few, if at all.

“Some big thieves even go to the ridiculous extent of securing
‘abominable’ Court Orders to prevent them from ever being arrested
or arraigned in Court for corruption. In other words, some courts
‘vaccinate’ them, to give them permanent immunity from arrest,
investigation and prosecution for corruption.

“Meanwhile corruption in Nigeria has an endemic and pandemic
nature like Covid-19. This is the only country in the whole wide
world where such odium happens”, he added.

The senior lawyer, also observed that, it is against this
backdrop of the nation not trusting its own judicial and legal
systems that made the government to think of plea bargain, thereby,
surrendering to the whims of the criminal cartel.

He, however, wants Nigeria to emulate order climes, where plea
bargain is never a means to escape from Justice.

“Plea bargain can reduce your prison sentence like in the case
of former President Trump’s Lawyer, Cohen. But you will taste
jail/prison even if you release all the money stolen.

“I’m surprised they are just talking about guidelines for plea
bargain. I was in a Committee (which worked with Presidential
Advisory Committee Against Corruption, of which Prof Sagay is
chairman). And we completed work on it in 2016.

“Naming and shaming corrupt people will be the best thing to
happen in anti corruption war in this Country. The present
situation whereby corrupt people are hailed as if they are heroes
and are rewarded with appointments and positions in/by government
is most disturbing. This has reduced Nigeria to a laughing stock in
the ‘Comity’ of civilised nations”, he added.

Mallam Ahmed Raji, SAN, on his part, shared a different opinion.
He noted that Nigeria’s justice system is currently overwhelmed by
a lot of factors hence the need for other measures of curtailing
crime.

“There is no doubt the criminal justice system is overwhelmed by
a number of factors. Resolving all infractions through the court
system may not be a good option. It is more realistic and in the
greater interest of the system to look for alternative solutions
including plea bargain”, he said.

Raji believed that “ Naming and shaming” of people accused of
corruption might not serve any useful purpose, adding that there
was no provisions for such.

“Under what section of the Law do we have ‘naming and shaming’?”
he queried, suggesting that the system should develop enough
anti-abuse provisions to prevent most of the infractions. The
senior lawyer also called for the tinkering of the current
presidential system practised in Nigeria so as to give room for a
modified parliamentary system with enough checks and balances with
minimum costs.

“It will appear that in our climate, the presidential system is
synonymous with executive impunity and unmitigated corruption with
the bandwagon effects in all facets of our life”, he said.

While stating that Section 270 of the ACJA (2015) provides the
general legal framework for the application of Plea Bargain, the
minister expressed belief that this provision could also be
effectively deployed to address compounding offences that feature
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. In spite of the laudable
provisions of section 270 of the ACJA, there is no doubt that these
provisions are inadequate to guide the prosecutor and the defendant
in reaching a plea bargain that ensures the protection of public
interest, the interest of justice and prevents abuse of legal
process.

“This informed the development of the Draft Guidelines, which is
before you for review. The Draft was developed by the
Administration of Criminal Justice Reform Department in
collaboration with Rule of Law and Anti-Corruption Programme
(RoLAC) and other distinguished Experts,” he explained.

According to him, the purpose of the Draft Guidelines is to
promote standardisation and consistency in Plea Bargain (including
compounding of offences) by Federal Prosecutors as well as ensure
that the principles of accountability, equity, integrity, and
transparency are observed in reaching plea bargain agreements
across board. He said the draft provides further support to the
existing Code of Conduct and Prosecutorial Guidelines for Federal
Prosecutors, which generally regulate the conducts and actions of
Federal Prosecutors in the exercise of their prosecutorial
discretion.