Wednesday, April 23, 2014

Police Pension Scam Sentence: Criminal Law Inadequacy, Charge Perfidy, Plea Bargain Sham, or Sentence Inequity? By Jiti Ogunye

Published:

“In a plea bargain process, even when the rules are yet to be fully developed in Nigeria, there is what is called specific sentence recommendation.”

On Monday, January 28, 2013, a High Court of Nigeria’s Federal Capital Territory, Abuja presided over by Hon. Justice Abubakar Talba convicted John Yakubu Yusuf (JYY) of the offence of criminal appropriation and sentenced him to a prison term of 2 years with an option of fine of N250, 000 for each of the 3 counts in a 20-Count Amended Charge, to which JYY had specifically pleaded guilty. Since the Judge ordered that the sentences should run concurrently, JYY was, in effect, sentenced to a cumulative prison term of 2 years with an option of N750, 000 fine. However, in addition to the custodial punishment or fine, JYY was ordered to forfeit, to the State, 32 real property, situate in Abuja and Gombe, and the sum of N325 million, proceeds of his crime, stashed away in banks and frozen.

JYY, a former Assistant Director in the Police Pension Office and the 8th accused person in the Charge whereon he was convicted, had pleaded guilty to Counts 18, 19 and 20, which accused him of conniving with Essai Dangabar (Director of Police Pension Fund), Atiku Abubakar Kigo (Permanent Secretary), and others to convert a total sum of N27.2 billion, belonging to the Police Pension Office, to their own use; an offence defined by S. 308 and punishable under S. 309 of the Penal Code Act (PCA), Cap 532, LFN, 1990

This sentence is the first in the trial that followed the February 2012 revelation that very senior government officials, offices and banks were involved in an elaborate thieving spree in which several billions of naira was stolen from the police pension funds. The scam was said to have involved several transfers of huge sums between banks, use of illegal accounts and falsification of names.

The Nigerian public is reacting angrily to the sentence of JYY, contending that it is not only too light but that it is also capable of encouraging corrupt practices in the public service. While some have condemned the Judge for giving JYY a gentle slap on the wrist, others have castigated a resort to plea bargain in resolving the criminal charges brought against JYY. In a poignant news analysis, the Punch, at page 51 of its Tuesday, January 29, 2013 edition, declared that “plea bargain is a mockery of justice.” It recalled the October 2010 6 month imprisonment of Cecelia Ibru for her =N=150 billion bank heist, the October 2009 30 month imprisonment of Bode George for fraudulent contract splitting, the November 2005 6 month imprisonment of Tafa Balogun for money laundering, the December 2008 6 month imprisonment with an option of N3.5 million fine of Lucky Igbinedon for corruption, and the July 2007 2-year imprisonment of Diepreye Alamieyeseigha for money laundering.

This sentence handed down by Justice Talba is not acceptable. It is an abuse of sentencing discretion. Our view is that the sentence does not meet the goals of criminal punishment in anti-corruption cases, under the prevailing circumstances in Nigeria. This sentence is not a just desert. There is no retribution, deterrence or incapacitation.

Many critical questions arise from this sentence. Is the sentence a result of a faulty or inadequate law, an inappropriate charge, an unfair and wrongful plea bargain or an injudicious exercise of sentencing discretion? Was the sentence a product of an infamous script or an outcome of a loose and unbinding plea bargain “understanding”, which is subject to an unpredictable exercise of judicial discretion? Is the EFCC genuinely dissatisfied with this sentence or is it implementing, in line with S. 14 (2) of the EFCC Establishment Act, a consistent prosecutorial policy, which prioritizes asset seizure and forfeiture over custodial sentences for criminal defendants? Was the sentence tainted with corruption or was it given by the Court in genuine appreciation of the first time offender status of JYY, without due regard for Nigeria’s public policy on corruption? Did the Judge faithfully and correctly apply the criminal law or did he exploit the loopholes in the law, in sympathy with the accused person?

Section 308 and Section 309 of the PCA, pursuant to which JYY was charged, convicted and sentenced defines and prescribes punishment for criminal misappropriation thus: “whoever dishonestly misappropriates or converts to his own use any movable property, commits criminal misappropriation”; and “whoever commits criminal misappropriation shall be punished with imprisonment for a term which may extend to two years imprisonment or with fine or with both.” From the wording of the provisions of Ss 308 and 309, it is obvious that the Judge could have sentenced JYY to a term of 1 day up to 2 years imprisonment; to a fine without a prison term; or to both fine and imprisonment. Therefore, this Judge acted according to the letters of the law. But did he act according to the spirit of the law and the dictate of justice?

And this leads us to ask three questions. First, why did the EFCC charge JYY under that Ss. 308 and 309 of the PCA and not under Ss. 311 and 312 of the PCA, dealing with criminal breach of trust, which, we contend, are the sections more appropriate for and applicable to JYY’s criminal conduct. S. 311 & S. 312 of the PCA defines and prescribes punishment for criminal breach of trust thus: “whoever, being in any manner entrusted with property or with a dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which that trust is to be discharged or of a legal contract express or implied, which he has made touching the discharge of the trust, or willfully suffers any other person so to do, commits criminal breach of trust; and “whoever commits criminal breach of trust shall be punished with imprisonment for a term which may extend to seven years or with fine or with both”

If the EFCC had charged JYY under Ss. 311 and 312 of the PCA, the Judge still would have had the latitude of discretion to sentence him as he did under Ss. 308 and 309, since the sections merely provide statutory maximum sentences, and not statutory minimum sentences, and without stipulating the quantum of the fine payable. But if the EFCC had done that, and the Judge still had returned a non-custodial sentence, the EFCC would have come out blameless.

The second question is why did the EFCC not charge JYY under the S. 14 of Money Laundering Prohibition Act of 2004, which, prescribes a punishment of “not less than 2 years and not more than 3 years” without an option of fine for money laundering? If this had been done, the EFCC would have been assured of a custodial sentence upon conviction. Was the EFCC of the view that JYY, who laundered his loot by banking several sums of money and building several houses in order to conceal his crime, could not be charged and convicted under the Act; or is the ejusdem generis shibboleth usually raised by defence attorneys regarding the construction of the phrase “illicit traffic in narcotic drugs or psychotropic substances” in S. 14, to challenge the applicability of S.14 to all forms of money laundering, the drawback which dissuaded the EFCC from charging under the Act?

The third question is why was the EFCC and not the ICPC the investigating and prosecuting authority? S.19 of the Corrupt Practices and Other related Offences Act provide that any public officer who uses his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relation or associate of the public officer or any other public officer shall be guilty of an offence and shall on conviction be liable to imprisonment for 5 years, without an option of fine. S. 20 of the Act provides for forfeiture of the gratification and fine, in addition to the sentence of imprisonment. In the light of this third question, is it not appropriate at this juncture for all the anti corruption agencies-EFCC, ICPC, Police SFU, and CCB- to have an inter-agency co-ordination platform, under the auspices of the AGF, to ensure that the agency most suited to prefer a particular charge does so to achieve maximal custodial punishment possible under our criminal laws?

Short of prescribing the death penalty for cases of corruption involving these mind-boggling larceny, our anti corruption laws ( substantive and adjectival), including the relevant provisions of the criminal codes, penal codes and the criminal procedure laws, pursuant to which corruption cases are charged, ought to be reformed and harmonized. Penalties prescribed for corrupt practices, especially in the public sphere ought to be more stringent. Why, for example, should the punishment prescribed in the PCA not be aligned with that prescribed in the Criminal Code? Under S.383 of the Criminal Code Act, Cap C38, Vol. 4, LFN, 2004, the penalty for stealing is 3 years imprisonment. If the offender is a person employed in the public service and the thing stolen is the property of the State, or came into the possession of the offender by virtue of his employment, he is liable to imprisonment for 7 years.( S. 390{5}); There is no option of fine.

And to narrow or fetter the discretion of trial judges in cases where there are no statutory minimum penalties, a body of sentencing guidelines in anti corruption cases ought to be issued as a practice direction by the NJC or the Chief Judges of the Courts, as an interim measure, pending a comprehensive legislative intervention. While the stringency of criminal law is not, per se, a guarantee of its efficacy, we must realize that criminal laws are “like clocks, (which) must be occasionally cleansed and wound up, and set to true time” ( Henry Ward Beecher, 19th Century American Clergyman). If this is not done, Nigeria may reach a point when a judge may sentence a criminal defendant convicted of criminally appropriating billions of naira to one day imprisonment or to a fine of one naira.

In reaction to this sentence, the EFCC had expressed reservation about the outcome of the guilty-plea arrangement it had with the accused person, stating that under the plea bargain, a custodial sentence was agreed to. In addition, the EFCC has re-arrested JYY, and is set to arraign him on different set of charges. We decry this panicky and untidy strategy which may implicate the constitutional fair hearing right of JYY not to be subjected to “double jeopardy”. In a plea bargain process, even when the rules are yet to be fully developed in Nigeria, there is what is called specific sentence recommendation. Given the precedents that were recorded in previous cases in which ridiculous sentences were dished out by the trial Judges, the EFCC ought to have realized the danger of bargaining charges or procuring change of plea and then leaving the judge to sentence according to his whim. No. the plea agreement must be in writing, signed by the accused person, the defence counsel and the prosecutor; and filed and adopted in court, more or less like the terms of settlement in a civil suit. If the Judge goes outside it, in his verdict, without a good reason, a petition can be generated to the NJC and an appeal can be lodged to overturn the perverse sentence. Plea Bargain, which remains a veritable tool of resolving Nigeria’s criminal prosecution dilemma, is not the problem. The haphazard application of its principles and rules is the problem. And unless the EFCC puts up a better performance in the future, we may be condemned to living in a society where “laws grinds the poor and rich men rule the law (Oliver Goldsmith-18th Century English Writer).

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