Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Why plea bargain should be mainstreamed in Nigerian criminal justice 08 Mar 2018

Federal High Court, Lagos

The news of a possible plea bargain arrangement between the Economic and Financial Crimes Commission (EFCC) and Jumoke Akinjide, a former Minister of State for the Federal Capital Territory (FCT), reignited the discussion on the readiness of Nigeria to integrate the concept of plea bargain in our criminal justice system.
Ms. Akinjide was arraigned alongside a former People’s Democratic Party (PDP) Senator, Ayo Ademola Adeseun, and a PDP chieftain, Olanrewaju Otti, on money laundering offences, particularly for retaining the sum of N650 million (out of the $115 million allegedly distributed as bribes during the 2015 elections to some officials of the Independent National Electoral Commission (INEC) by Diezani Alison-Madueke, former Minister of Petroleum Resources). The EFCC contends that the defendants ought to have reasonably known that the funds formed proceeds of an unlawful act. They are also accused of paying sums above the threshold permitted under the Money Laundering (Prohibition) Act from the said monies without going through a financial institution.

On the day that trial was to commence before Justice M. Hassan of the Federal High Court, Lagos, the court was informed that the parties were negotiating a plea bargain. EFCC has subsequently refused the offer and commenced trial. But the plea bargain option remains open until the conclusion of the presentation of evidence by the prosecution.

Relying on the provisions of Section 14 (2) of the EFCC Act 2004, the anti-graft agency has over the years applied the plea bargain arrangement to some of its prosecutions, although with attendant misgivings, mistrust and legal uncertainties. Indeed, former Chief Justice of the Federation, the now late Hon. Justice Dahiru Musdapher, sometime in 2012, referred to plea bargain as a “novel concept of dubious origin.” Much of the legal uncertainties associated with plea bargain have, however, been resolved with its incorporation in the Administration of Criminal Justice Act (ACJA) 2015.

The concept, nevertheless, is still viewed with a high level of suspicion among the general public, which continues to reckon that the prosecuting agencies basically use plea bargain to give soft-landing to influential corrupt public officials.

Plea bargain was first used by the EFCC in the trial of former Inspector General of Police, Tafa Balogun, who, apart from the properties that were confiscated from him, was sentenced to only six months in prison. Former Governor of Edo State, Lucky Igbinedion, who was charged with looting over N4.4 billion was, after a plea bargain agreement, fined N3.5 million with no option of jail time.

Former Managing Director/Chief Executive Officer of the now defunct Oceanic Bank Plc., Cecelia Ibru, was arraigned on a 25-count charge relating to money laundering, embezzlement and financial recklessness. Under a plea bargain agreement, she pleaded guilty to, and was convicted of, a lesser three-count charge and was sentenced to six months on each of the three counts, which ran concurrently (meaning she had only six months to spend incarcerated), along with forfeiture of her assets.

As was earlier mentioned, the legality of the plea bargain arrangement is no longer in doubt, having been codified under the ACJA 2015. Prior to 2015, Lagos State had provided for it under its 2007 Administration of Criminal Justice Law (it is still provided for under the Repeal and Reenactment Law of 2011). Anambra State followed suit under its Administration of Criminal Justice Law of 2010. The ACJA has extended the application of the concept to criminal trials for offences established by an Act of the National Assembly (federal crimes) and offences punishable in the Federal Capital Territory, Abuja.

The provisions governing plea bargain under the ACJA 2015 are quite extensive and involve not just the use of the discretion of the prosecutor, but also the investigating officer, court and sometimes the victim or his representative. This limits the abuse that could ensue from wide discretionary powers of the prosecuting agencies to consider a plea bargain.

Under the ACJA, a plea bargain can be entered into either before the defendant pleads to a charge, or during or after the presentation of the evidence by the prosecution, but before the presentation of evidence by the defence. This presupposes that once the defendant opens his defence, the right to plea bargain has been foreclosed. The timing within which a plea bargain is reached is important because there are differing factors and considerations in each stage of a trial.

A prosecutor is to only accept an offer of plea bargain if he is of the view that the plea bargain is in the interest of justice, the public interest, public policy and the need to prevent abuse of legal process. Where the plea bargain arrangement is before the plea to a charge, the prosecutor must consult with the police responsible for the investigation of the case and the victim or his representative. He must also weigh some factors in deciding whether the plea bargain is in the public interest, including the accused person’s criminal history, his willingness to cooperate in the investigation or prosecution of other accomplices, his willingness to make restitution or pay compensation to the victim where possible, his remorse, the likelihood of obtaining a conviction at trial and the expenses of the trial and possible appeals.

Where the plea bargain is reached during or after the presentation of the evidence by the prosecution, but before the presentation of evidence by the defence, the consent of the victim or his representative must be obtained. A plea bargain would only be allowed at this time if the evidence the prosecution has presented is insufficient to prove the offence the defendant is charged with beyond reasonable doubt (though the ACJA is silent about who would make this finding, which is a legal finding).

Furthermore, a plea bargain would only be allowed if the accused person has agreed to return the proceeds of crime or make restitution to the victim or his representative as the case may be. Where there is a charge of conspiracy, the accused person must have provided relevant information for the successful prosecution of other offenders.

There are two important things to note about the plea bargain arrangement under the ACJA 2015. The first is that a copy of any plea bargain agreement is to be forwarded to the Attorney General of the Federation, although there is no requirement of obtaining his approval. This provision is quite understandable in light of the constitutional powers of the Attorney General over public prosecutions.

The second notable point is that though the judges or magistrates before whom criminal proceedings are pending are not to participate in the discussions leading to the plea bargain, they possess discretionary powers under the Act relating to the acceptance of any plea bargain reached. Before accepting any plea bargain, the judge or magistrate must be satisfied that the accused person entered into the agreement voluntarily and without undue influence. Where the judge or magistrate is not satisfied of the guilt of the accused person in respect of the crime to which he has pleaded guilty under the plea bargain agreement, he shall record a plea of not guilty for the accused person and order that trial proceed.

The judge or magistrate also exercises discretionary powers in respect to sentencing for the charges to which an accused person has pled guilty under the plea bargain agreement. When the judge or magistrate is satisfied that the sentence agreed to is an appropriate sentence, he would impose such sentence. Where he is of the view that he would have imposed a lower sentence than that agreed to, he would impose the lesser sentence.

Where, however, he is of the view that the offence requires a heavier sentence than that agreed to, he would inform the accused person of the heavier sentence he deems appropriate. The accused person then has a choice to either abide by his plea of guilty, thereby accepting the heavier sentence (though he is entitled to lead evidence and present arguments in respect of sentencing) or withdraw from the plea bargain agreement, in which case the trial would proceed but before another judge or magistrate.

The ACJA has thus created clear guidelines to govern the use of plea bargains by the prosecuting agencies. If adhered to, the guidelines can create quite a transparent process in negotiating plea bargains. However, many Nigerians still cringe at the mention of plea bargain particularly as it relates to charges of misappropriation of public funds, money laundering or corruption.

Renowned Professor of International Law, Prof. Akin Oyebode, provides one of the major reasons for public misgivings about plea bargain in a lecture, titled “Plea bargaining, Public Service Rules and Criminal Justice in Nigeria”: “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 is either served in pleasurable surroundings or offered the opportunity of fines in lieu of incarceration.”

Plea bargaining would indeed be a most helpful tool in de-clogging criminal dockets in our courts and decongesting our prisons. It is, therefore, suggested that plea bargain should be used regularly by the Ministry of Justice and Office of the Public Defender, for ordinary Nigerians in situations where justice would indeed be seen to have been done for the victim, offender and the society. Maybe then, we wouldn’t be so averse and distrustful when it is used in high-profile criminal trials.

A Financial Nigeria columnist, Funmilayo Odude is a Lagos-based legal practitioner, and a public affairs analyst.