The Nigerian Judiciary, through the decision of Justice Abubakar Talba of an Abuja high court on January 28, 2013 on the police pension scam case, has sent a clear message to ‘future offenders’. John Yusuf, a Director at the Police Pension Office, was charged to court for criminal misappropriation by the Economic and Financial Crimes Commission, EFCC, under section 309 of the Penal Code Act, Cap 532, Laws of the Federal Capital Territory, Abuja, Nigeria, 2007. He was charged alongside seven other members of the Pension Office whose cases are still pending in court.
Yusuf, who originally pleaded not guilty to the charges, turned around to plead guilty to three specific charges for which he was convicted. The change in his plea came after a session with the prosecution lawyers led by Rotimi Jacobs, SAN, where plea bargaining purportedly took place. The actual terms of the plea bargaining remains unclear. Yusuf was sentenced to two years imprisonment for each of the three counts to which he pleaded guilty, to run concurrently and with an option of fine, set at N750,000. This, he paid off, with the swiftness of one who had prior knowledge of this outcome.
This judgment sparked a lot of outcries from within the legal profession, the media and, of course, amongst the populace. Before Nigerians forget their recent history, Bode George was similarly convicted a few years back, after a plea bargaining session with prosecution lawyers. Bode got two years concurrent sentences on all counts for which he was found guilty. Then, Nigerians lauded the judgment. But in truth, he got off easy as well. The option of fine in Yusuf’s case seems like a world of difference, but really, it is not. Section 309 of the Penal Code, under which Yusuf was sentenced, reads thus: “Whoever commits criminal misappropriation shall be punished with imprisonment for a term which may extend to two years or with fine or with both”.
Now, there are a few issues to be addressed in the scenario. First, what options did the prosecution have in prosecuting Yusuf? Apparently, the Penal Code was one option. Another option, considering that the prosecutors were the EFCC, would have been to bring charges for offences under the EFCC Act. Section 17 (1) of the EFCC Act provides for offences in relation to economic and financial crimes. Section 17 (2) specifically states thus: “The penalties for offences under sub section (1) of this section shall be imprisonment for a term not less than fifteen years and not exceeding twenty-five years”. In addition to this, section 18 of the EFCC Act was clear in sub section (1) and (2) thus: “(1) The Federal High Court or High Court of a State has jurisdiction to try offenders under this Act. (2) The Court shall have power, notwithstanding anything to the contrary in any other enactment, to impose the penalties provided for in this Act.” A rational prosecutor, who wishes to set an example as a deterrent for future offenders, will not be at a loss as to which of the two enactments (Penal Code or EFCC Act) will serve better to charge the accused.
Secondly, if the Penal Code’s Section 309 was really all that was before the court as a guide to the punishment of the accused, why did the judge give an option of fine which is clearly within his discretion to insert or withhold from his judgment? Alternatively, Section 309 also provides the possibility of a fine and mandatory imprisonment running together. And since the judge had given the accused an option of fine, why N750,000 for misappropriation of a figure in excess of N23 billion? While the section does not specify the amount of fine to be set, where applicable, the judge, in the exercise of his discretion, is to be guided by the principles of fairness and justice and, in special cases, public interest. Although, in defence of the Judge, N750,000 is a fair fine for two years imprisonment, judging by the similar proportions of terms of imprisonment to fines, where specifically provided. The public interest vote on this particular decision should have outweighed the others in the mind of the judge, as this is a special case with immense national significance. He was within his rights to set that fine as he would have been if he had gone much higher.
Third, is the issue of plea bargaining. To start with, plea bargaining, in itself, is not a destructive mechanism but rather a constructive one. Its essence is to expedite the process of justice and clear the court’s desks to make way for the tons of litigations flooding the courts. The simple process involves an accused pleading guilty to some or all of the charges brought against him/her in return for a reduced sentence. This saves the court the task of a full-fledged hearing and even clears the prisons by keeping convicts incarcerated for a relatively shorter period. It is practised in many developed countries and, today, is a key part of the United States justice system in terms of effective dispensation of justice. Although it is not specifically provided for in the Nigerian legal system or in any of the laws, there have been calls for its integration in the laws along with alternative dispute resolution mechanisms. The reality is that, in our recent experiments with the procedure, it is the Cecilia Ibrus, Bode Georges and other billionaire offenders that have the privilege, while the common man is sentenced to five years imprisonment for stealing an item worth less than N100.
Though a copy of the charge sheet is yet to emerge for public scrutiny, it is not unlikely that the charges were brought both under the Penal Code and EFCC Act, as a seasoned legal practitioner would not be so absent minded to overlook such disparity in sentences. It is possible that it was during the plea bargaining that the Penal Code Section 309 was adopted and the EFCC Act Section 17 was abandoned. Whether there was communication by the parties and acquiescence by the Honourable Judge also is yet unclear. What is clear is that the public feels exposed and vulnerable after what seems like a slap on the wrist for a crime that should not have been taken lightly.
At this point, different theories of the events leading to the judgment will be passing around in the minds of the people. Was there a conspiracy by the judge, prosecution and defence to blindside the public and pull a judicial manoeuvre that resulted in the ‘near acquittal’ of the accused? Or were the hands of an impartial judge tied by the rusty binds of old statutes that predate that country as we now know it by almost half a century? The Penal Code and the Criminal Code are a 1916 ordinance and, as the current president of the Nigerian Bar Association put it when commenting on the sentence, “It is obvious that the law is inadequate and so the sentence is inadequate”. Since 1960, only Lagos State has ever amended its criminal laws, including criminal procedure rules. And that was done quite recently.
Yusuf may have also forfeited 32 houses in the FCT and Gombe as well as N325million, which the EFCC said were proceeds from the crime. But Nigerians are not thrilled by forfeitures in a system where there have been rumours of ex-offenders repurchasing their ‘forfeited’ properties and forfeited sums vanishing into thin air. Nigerians need to be sated with landmark judgments that will show that the judiciary is not caught up in the power politics of the executive and legislature. The people are not calling for burning at a stake or beheading; they simply ask for public officials to be accountable for their actions and for the justice system to apply commensurate punishment for crimes. After all, following a plethora of judicial authorities, justice must not only be done, justice must also be seen to be done!
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