In Defense of Plea Bargaining, By Jiti Ogunye

The January 28, 2013 verdict of Justice Abubakar Talba of the Abuja High Court, which rewarded John Yakubu Yusuf with a sentence of 2 years imprisonment or a fine of N750,000. 00 in lieu of the custodial sentence, for the criminal misappropriation  of N27.2 billion, belonging to the Police Pension Office has given the opponents of plea bargaining a fresh impetus to oppose its continued use in criminal justice administration in Nigeria.

In a news analysis at page 51 of the Punch of Tuesday, 29th of January, 2013, entitled “plea bargain is mockery of justice”, it was stated, in part, thus: “ But then what sort of judiciary is Nigeria’s? How come the principle of plea bargain has become a dirty tool in the hands of highly placed criminals, while disadvantaged citizens suffer the full weight of the law, when they commit misdemeanors’… so far plea bargain has tainted the image of the Nigerian Judiciary, as justice now seems to be for the highest bidde.

This analysis was followed by the headline report of the Punch of Thursday, January 31, 2013. At page 2 under the caption ‘ “protesters storm supreme court over pension thief,” it was stated that a group of anti-corruption organizations who were protesting the Talba’s verdict submitted a petition to the CJN, wherein they demanded for “the eradication of plea bargain, and advocated for “ the China option of capital punishment for corruption, in which the family of the convicted and executed persons pay the bill for execution

In the past, eminent jurists, including Kayode Eso, JSC ( Late) and  the former  Chief Justice of Nigeria, Dahiru Musdapher have criticized the resort to  plea bargaining  by the anti-corruption agencies. In an interview that was published in the Vanguard Newspaper of November 18, 2012, Eso, JSC said of plea bargain in Nigeria thus: “ They bargain with the judge, bargain with the accused person, he returns half of the money, and then they give him some hairy-fairy punishment – go and serve three months in prison and the three months, will, of course, be in the hospital. This is an encouragement for other governors to steal when they come into office. There is no plea bargain in our law… The importation is wrong…To me, it is corruption to bring plea bargain into the law of Nigeria. Look at the issue of Igbinedion in Edo State who was alleged to have stolen billions and billions of naira. …They asked him to plea bargain, there and then he was fined three million naira which, he picked out of his purse and paid there…It sent a notion that it had been pre-arranged that it would not be more than three million. Now, after that they started to gloat and shed crocodile tears and said the punishment was not adequate…Of course, the punishment can never be adequate when they import this issue of plea bargain. But, let us say the issue of plea bargain was not introduced and he was punished as he deserved, others would learn…Years back, I was saddled with the case of Oba Akran and Ademiluyi – Oba Akran was the Oba in Badagry, and Ademiluyi was the chairman of the biggest corporation in the country, they were alleged to have stolen 500 pounds. They appeared before me and I gave them seven years after I had found them guilty. They appealed to the Supreme Court because there was no court of Appeal then, their appeal was dismissed. That was justice not this way of palliating people, rubbing them with oil in the name of plea bargain…Plea bargain is actually not our law….And they come around and say it is done in other countries, Nigeria is not any other country. Nigeria is Nigeria not just any other country. In other countries, it may be right for them to have plea bargain. We never had plea bargain….It is corruption for anybody who imports plea bargain into our law.”

At a press conference themed: “Legal Practice in Nigeria: Venturing Beyond the Usual Borders”, organized in Abuja on November 14, 2011 by the NBA, Dahiru Musdapher, then Acting CJN,  said: “Plea bargain is novel concept of dubious origin. It has no place in our law-substantive or procedural. It was invented to provide soft landing for high-profile criminals who loot the treasury entrusted to them…it should never again be mentioned in our jurisprudence”.

Again, on Monday March 5, 2012, Dahiru Musdapher, CJN, in a key-note address, delivered at  a two-day capacity building workshop for judicial reporters, organized by the National Association of Judicial Correspondents in collaboration with the Open Society Justice Initiative and Settlement House, the CJN said that: “and so when I described the concept as of ‘dubious origin’ I was not referring to the original raison-detre, or the judicial motive behind its conception way back either in the United States or England in the early 19th Century, I was referring to the sneaky motive-if not behind its introduction into our legal system, then evidently in its fraudulent application.”

And on November 15, 2012, in a yet another key note address delivered at the Annual Alternative Dispute Resolution Summit, organized by the Negotiation and Conflict Management Group, , and the National Judicial Institute, in Abuja on the theme: “Plea bargaining and Criminal Justice in Africa: A threat or promise.”  Dahiru Musdapher, now a retired CJN tempered his earlier view that plea bargain was totally unknown to Nigerian law.

He said: “Allow me to still reiterate my position on the concept of plea bargain. I still stand on my buckles to state that the concept is not only dubious but was never part of the history of our legal system, at least, until it was surreptitiously smuggled into our statutory laws with the creation of EFCC. Though the concept of plea bargain may be noble to the Criminal Justice System of the United States and possibly some common law jurisdictions within Africa, it is pertinent to observe the case and circumstances within which plea bargain is applied in those jurisdictions.

In Nigeria, a proper understanding of the concept of plea bargain by prosecutors and law enforcement officers is seriously required to reduce the misconception that what is being plea bargained is the proceeds of crime rather than the crime itself with a view to having a lesser punishment for the offence committed. Thus, there is need to establish a legal framework that will be peculiar to our social norms, values and circumstances.

The essence of the concept of plea bargain is the recovery of stolen funds and therefore not subject to negotiation. What is subject to negotiation should be the prosecution and punishment for embezzlement. “Even where the whole money stolen is returned by the offender, he has committed the offence of theft or abuse of office for which he must still be tried and punished. “This concept is not ripe for our criminal justice system in Africa, particularly Nigeria, because of the one thing that has plagued and ravaged this beautiful continent- corruption, the hydra headed monster that has eaten so deep into the fabrics of our justice system, leaving us at its mercy.”

At the same event, Uwais, former CJN argued that “The practice of plea bargain is not new in Nigeria. Hence, it will not be out of depth for me to make a point which may shape the discussion along the line of law and judicial reform. The point is that in theory, and I believe this is safe, plea bargain is designed to maximize scarce judicial resources thereby enhancing the fair administration of justice. The debate should therefore, in my view, focus more on how best the judiciary can adapt to the use of plea bargain in a manner that does not compromise fair administration of justice.”

Plea bargain, by the way, is a generic name for many types of negotiated settlement or resolution of a criminal case. This includes charge bargaining, sentence bargaining, specific sentence recommendation, conditional guilty plea, nolo cotendere plea, and Alford Pleas.

It is too late to argue that plea bargain is not a part of Nigeria’s criminal justice system.  The Administration of Criminal Justice Law, 2007, No 10, which, in Sections 75 and 76 introduced plea bargain and plea and sentence agreements into the criminal procedure law of Lagos State, said so. And so do Sections 75 and 76 of the Administration of Criminal Justice Law, 2011, which repealed and reenacted the 2007 Law.

Incidentally, the Administration of Criminal Justice Bill, which proposes the incorporation of plea bargain into Nigeria’s criminal procedure, at the Federal level, has been mired in the National Assembly, without passage,  for over six years.

We note that Section 14 (2) of the EFCC Establishment Act allows the EFCC to  “compound any offence punishable under the Act by accepting such sum of money as it thinks fit, not exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence”; that Section 174 and 211 of the Constitution of Nigeria vest in the AGF and AG of States power of public prosecutions, including the prerogative power, in the public interest, to discontinue any prosecution, by entering a nolle prosequi; and that  Section 180(1) of the Criminal Procedure Act provides that “when more charges are made against a person and a conviction has been had on one or more of them, the prosecutor may, with the consent of the court, withdraw the remaining charge or charges or the court, of its own motion, may stay trial of such charge or charges.”

But we are not persuaded to argue that these provisions are the sure and adequate legal grounds for EFCC’s application of the plea bargain procedure. A plea bargain procedure does not derive from a hotchpotch of disparate statutory provisions. In the US, Section Rule 11(c) of the Federal Rules of Criminal Procedure unequivocally proclaims plea bargain, a procedure that operates with the compliment of a United States Sentencing Guidelines, promulgated under the Sentencing Reform Act and periodically revised by the United States Sentencing Commission, which functions under Congressional power.

To those who are bashing plea bargaining or who are arguing that it is not suitable for anti-corruption cases, we say that plea bargain is not the problem. Nigeria is. Which system or institution or idea works in Nigeria? The ghost workers ridden and corruption soaked customs, immigration, police, or civil service; education or healthcare system; the legislature, executive or judiciary; or federalism? Are these institutions plagued by plea bargain?

The presidential system of government is not working in Nigeria, and many have started advocating that we revert to the parliamentary system of government, contending that the presidential system of government is too expensive and that it breeds corruption.

They  forget that between the attainment of flag independence in1960 and 1966, when the military violently snatched political power, Nigeria had thoroughly discredited and bastardized the parliamentary system of government, so much so that by 1963 one of the architects of Nigeria’s independence and leader of opposition in the Federal Parliament,  Obafemi Awolowo,  had been railroaded into jail, a political perversity in which the judiciary played a conspiratorial and ignoble role.

Was it plea bargain that made the High Court, Court of Appeal and the Supreme Court to uniformly rule that although one “James Onanefe Ibori” was convicted of criminal breach of trust, by a Bwari Area Court, there was no conclusive proof  that the convict was “James Onanefe Ibori”, the ex-governor of Delta State? Did Plea-bargain play any role in Justice Marcel Awokulehin’s exoneration of James Ibori when he ruled that there was no prima facie case against him and   struck out the charges preferred against him ? Ironically, the same James Ibori embraced plea bargain, and entered a guilty plea before a Southwark Crown Court in London where he was being tried on fraud and money laundering charges.

Ibori pleaded guilty to 10 counts of fraud, money laundering and corruption charges before Judge Anthony Pitts on 27th of February, 2012, and was sentenced accordingly. Thankfully, Justice Talba or Justice Awokulehin was not on the Bench.

*Mr. Ogunye, a legal scholar and practicing attorney in Lagos, has published two books on Plea Bargain.

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