Sep 15, 2016

The Concept Of Plea Bargain As A Veritable Tool For Justice Or Corruption - Adebayo Oluwaseyi Olayiwola

The Concept Of Plea Bargain As A Veritable Tool For Justice Or Corruption Under The Nigerian Criminal Justice System

The concept of Plea bargain has its origin in the United States of America as part of their belief that society is dynamic, so the law needs to keep up with it. The practice came about as a potent weapon in their criminal law jurisprudence. 

Plea bargain was first used in the United States of America in the year 1973 when her Vice President, Spiro Agnew, was made to resign on the accounts of fraud, but was later convicted of his refusal to pay taxes. However, in the 1960s the Scholars had begun to shed light on plea bargain but the concept was endorsed by US Supreme Court and upheld the process in the 1970 case of BRADY v. UNITED STATES 394 US 742, 90 S.C.T. 1463, 25 L.Ed., 2d 747 (1970). The concept was given credence in the case of PERKINS v. COURT OF APPEALS 738 S.W. 2d 276, 282 (Tex Crim. App. 1978) where certain number of safeguards into the bargaining process was laid down and the court held that:

i.                   The promise of a prosecutor made during plea negotiations must be kept.
ii.                To be valid, a guilty plea had to be made voluntary and with full knowledge of its implications.
The concept of plea bargaining in the recent times was introduced vide The Criminal Law (Amendment) Act, 2005 in Chapter XXIA of Code of Criminal Procedure.
In order to have a concrete insight of the said topic, it is pertinent to define certain keywords as embedded in the topic; such words as “Corruption”, “Criminal”, “Justice”, “Criminal Justice” etc.

What is corruption?
It has been defined as: depravity, perversion, or taint; an impairment of integrity virtue, or moral principle; especially the impairment of public official’s duties by bribery. 

Who then is a criminal?
Simply put, a criminal is one who has committed a criminal offense.

What is justice?
Justice has been defined as “the fair and proper administration of laws. 

Meaning of Plea bargain:
The concept of Plea bargain in Criminal cases refers to pre-trial negotiations between the defendant through his/her Counsel and the prosecution during which the accused agrees to plead guilty in exchange for lesser punishment. Also, a plea bargain/plea agreement is an agreement in criminal cases whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter punishment than the maximum sentence.

Plea bargain has also been referred to as a deal offer by a prosecutor as an incentive for a defendant to plead guilty. It is also referred to as a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of the multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the other charges.

Types of Plea bargain
Plea bargaining though relatively novel to Nigerian Criminal Justice System is already being practiced in other countries across the globe for a long period of time. In fact, this concept is a norm in the United State of America as stated above whereby 75% of the Criminal cases get decided on plea bargaining. Hence, the types of plea bargaining is as follows:

CHARGE BARGAIN: under this type, the accused has the option of pleading guilty to a lesser charge or to only some of the charges filed against him. For instance, a defendant charged with burglary may be offered the privilege to plead guilty to “attempted burglary”; or a defendant charged with assault and molestation; may be offered the opportunity to plead guilty to just the molestation charge.

SENTENCE BARGAIN: this occurs when a defendant is told in advance what his sentence will be if he pleads guilty. For instance, if a defendant is facing serious charges and is afraid of being convicted with maximum sentence, he may plead guilty and be punished with an acceptable sentence which limits the severe punishment accrued to the defendant.

According to Lord Justice Denning M.R in one of his dictums where he said and I quote: “Justice is rooted in confidence, and the confidence is destroyed when a right thinking person walks away thinking the Judge is biased in the case”. 

Also, the legal maxim “Fiat Justitia Ruat Coleum” meaning let justice be done even if heaven will fall”

In line with the aforesaid, it is highly fundamental to ask this question: why bargaining with an accused defendant and not allowing the law to take its full course (simplicita) on anyone who is alleged and found guilty of embezzling, stealing or looting public funds which belongs to all the citizens (innocent tax payers) of the nation? 

Conversely, it is quite shocking and alarming that the concept promotes bargain with an accused defendant all in the name of ensuring that both parties do not loss out at the end of the day. At this juncture, it is ideal to critically examine the aims and objectives of this concept to wit; a country like Nigeria where most public office holders loot and embezzle public funds with full guts and confidence at the detriment of the masses without considering their plights and havoc such heinous act bring on them. 

Not only this, the concept (plea bargain) which promotes bargain between the prosecutor and the defendant (accused) whereby an agreement is reached and the defendant plead guilty to some of the offences charged with before trial and enjoys lesser sentence. This kind of arrangement is of no doubt berated our criminal justice system and judicial system, knowing well that the judiciary is being referred as to “the last hope of a common man” and it is highly imperative for the judiciary to dispense the carrot and stick of justice without any fear, favoritism or partiality. Going by this concept, this cannot be obtained under our criminal justice system due to the fact that its preempt true justice on one hand and limits the Court (Judges) on the other hand from implementing the full measures of law as provided for in our various Criminal Statutes against any erring criminal and such it is nothing but a mockery of our criminal justice system and a clog in the wheel of progress of the judiciary in dispensing true justice. 

According to the words of Prof. G.S. Pande, in his article Criminal Justice; these were some of the observations and suggestions, he opined and they go thus:
“Punishment for an offence must be according to the gravity of the offence, personality of the offender, the nature of his guilt and other relevant circumstances. It need not be retributive alone. Reform and rehabilitation of the criminal, wherever feasible without unduly endangering the social life, is necessary, but for offences which pose a real treat to the normal life in the society and which are of cruel nature, detriment punishment must be awarded. If punishment is inadequate, there is every likelihood of repetition.”

Typical illustrations to buttress this assertion are not far fetched, but I shall mention just a few. Precisely, December 18th, 2008, the Federal High Court sitting in Enugu delivered a judgment in the case involving former Governor of Edo State in person of Lucky Igbinedion where he was charged for looting N4.4 billion public funds belonging to the State, acquiring of palatial houses and properties for himself within and outside the country at the detriment of the people of Edo State who ought to be the beneficiaries of the funds. While delivering his judgment, Justice Abdul Tafari only fined the former Governor a paltry sum of N3.5million out of the said huge amount embezzled with no option of jail time for egregious crime of plundering the Edo State treasury for solid eight years in office. The concept (plea-bargain) was also used during the case of the former Inspector General of Police (IGP), Chief Tafa Balogun who was convicted for just six month and has his properties confiscated after he pleaded to bargain. 

Also, in the case of F.G.N v. Alamieyeseigha involving the Ex-Governor of Bayelsa State where he was charged for looting the fund belonging to the State; the concept of plea bargaining was adopted and delivering his judgment; Justice Mohammed Shuaibu of the Federal High Court in Lagos State order as follows:

That in respect of the properties in the Charge Sheet (Information Sheet), they are hereby forfeited to the Complainant (Federal Republic of Nigeria). The proceeds after sale would be forfeited to Bayelsa State couple with six months imprisonment. This is of no doubt ridiculous and far below the crime committed by the accused person and no wonder Mr.Babafemi the former spokesman of the Economic and Financial Crimes Commission (EFCC) told Nigerians at the behest of his boss Mrs. Farida Wazari ( now former Commission’s Chairman) in the wake of Chief Cletus Ibeto’s arrest that: 

“Also, the chairman of the commission (as she then was), Mrs. Farida  Wazari, expressed opposition to plea bargain strategy being used by the anti-corruption agency, saying it was wrong and unhelpful in the crusade against corruption in Nigeria”.

But it was scandalous that after the judgment that was handed down on the former Edo State Governor, Lucky Igbinedion on December 18, 2008 by Justice Abdul Tafari at the Enugu Federal High Court to hear the same Mr. Babafemi in a press statement saying that the outcome of the exercise at the court in Enugu fall short of the Commission’s (EFCC) expectation. He said and I quote: 

“It is believed that the essence of a plea bargain is not only for suspects to forfeit the proceeds of crime but that such should go with a sentence which will serve as deterrence.” “In view of this development, the Chairman of the EFCC (as she then was), Mrs. Farida Wazari has instructed the commission’s Counsel to file an appeal against the verdict immediately.” “The Commission will rather go the long way of prosecution than to settle for a plea bargain verdict that has no bite or will not serve any deterrence purpose.”

The above statements definitely are not the words of the writer of this article but that of the then spokesman of EFCC and they revealed the lacuna attached to the concept of plea bargain and its shaky foundation which may not be able to combat corruption under our criminal justice system in Nigeria as a nation.
It is therefore imperative to ask how far the Commission has lived up to the above assertion or statement…I humbly want the readers of this piece to supply the necessary response whether in the negative or positive i.e. whether the Commission can be given pass mark or not. 

Another criminal case where the concept was adopted was that of the former MD/CEO of the just acquired Oceanic Bank Plc in person of Mrs. Cecelia Ibru who was charged for money laundering, embezzlement and financial recklessness and after she pleaded guilty to bargaining arrangement. Justice Dan Abutu sitting at the Federal High Court in Lagos State only sentenced her to a jail term of 18 months, six months on each of the three count charges to run concurrently for illegally acquiring cash and assets worth N191 billion.

It is crystal clear that all the aforesaid are pointing to just one fact and this I like to couch inform of a question: can there be said to be true and genuine justice with the use of the concept of plea bargaining in our Nigerian Criminal Justice if truly we are sincere about warding off corruption and promoting justice in our country? In my humble view, it is a “Res Ipsa Loquitor” meaning “the fact speaks for itself”.

It is my humble opinion as the write of this piece that the concept (plea bargain) cannot be used to get rid of corruption in our country nor could it promotes true criminal justice either. It amounts to a mere mockery of our criminal justice system and pose a big threat to the country’s effort in combating corruption (if truly there is any such ambition). 

If truly Nigeria as a country is sincere and ready to fight corruption and promote justice, the issue of plea bargaining concept introduced into our criminal justice system needs to be reviewed. The government particularly the legislative arm must look into the law critically and carryout thorough evaluation of the merits and demerits of the concept to our criminal justice system and proffer necessary solution by passing into law cogent amendment of the concept or total abolition of it. The judiciary which is tagged the last hope of the common man needs also to be watchful and be cautious in delivering judgment in respect of the concept; in order not to keep bringing its standard to dispute. 

Our court(s) or judiciary is meant to stand for true justice and need not be swayed away by the concept “plea bargain” but the courts should ensure that sound and effective judgment devoid of fear, favoritism and partiality is dispensed at all times.

This writer is therefore, of the opinion that the concept of plea bargaining needs to be given clinical evaluation and total overhauling if Nigeria as a nation is truly committed to fighting corruption and promoting justice on all facets.

Conclusively, I will like to end this piece with the words of Honourable Justice Morki (JSC) in the case of ALTIMATE INVESTMENT LTD v. CASTLE & CUBICLE LTD (2000), ALL FWLR (Pt. 117) at pages 151-152 where he said and I quote:

“…It is important to mention that this is a time when the Nigerian nation is fighting the difficult battle against corruption in all its ramifications. All hands should be on deck to eliminate or eradicate this social ill. Corruption or corrupt practices, if not checked, threaten the peace, order and good government”.

Altimate Investment Ltd v, Castle & Cubicle Ltd (2000), All FWLR (Pt. 117) at pages 151-152.
Black’s Law Dictionary, Seventh Edition. Pg.348, 380, 869 & 1173
Brady v. United States. 397 US 742, 90 S.C.T. 1463, 25L, Ed, 20 747 (1970)
Economic and Financial Crime Commission Act, 2004 (As amended)
F.G.N v. Alamieyeseigha. The punch Law Report, Friday July 27 2007 P.4
National Institute of Law Enforcement and Criminal Justice, Plea Bargaining in the United States (Washington DC U.S. Government Printing Office, 1978)
Perkins v. Court of Appeal 738 S.W. 20 276 (Tex Crim. App. 1987).
Adebayo Oluwaseyi Olayiwola 
(N.D Bus. Admin. & Mgt. FEDPOLY Ede; LL.B O.A.U; B.L  

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