Prior to the establishment of the Economics and Financial Crimes Commission (EFCC) and the spate of high profile investigations, arrests and prosecutions which it undertook, the term “Plea Bargain” was fairly alien to Nigerians and stakeholders in the Country’s Criminal Justice System. Legal Practitioners and even Judges only came across the term either in articles written by their foreign counterparts or in novels or films depicting one legal drama or the other in foreign jurisdictions. This however is no longer the case.

Nigeria in the course of its existence as an independent nation has had to grapple with a myriad of problems. Of these, corruption in virtually every strata of the society continues to stifle the growth of a country still regarded as a potential political and economic leader not only of the African continent, but indeed of the wider and larger human populace. In recognition of this fact, former President Olusegun Obasanjo in his inauguration address of the 29th May 1999, promised to put in place institutional frame work designed primarily to reduce if not obliterate corruption completely in the country.

In line with his commitment, the then President through legislation put in place the process for the establishment of the Economics and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices Commission (ICPC).  These two bodies were statutorily empowered to investigate and where necessary, prosecute cases of economic offences and official corruption respectively. To state simply that the activities of the two bodies since establishment have attracted various comments and reactions inclusive of praises and criticism from within and outside the country would be an understatement. Numerous allegations ranging from ineptitude, abuse of power to corruption have been levelled against the agencies. Indeed the current head of the Economics and Financial Crimes Commission recently admitted to the National Assembly that some of these allegations were not unfounded.

However, as grave as that development portends for its ability to discharge its statutory duties, the Economics and Financial Crimes Commission (EFCC) in particular has for some time been mired in a much more serious controversy concerning its constant resort to “Plea Bargain” in its resolution or prosecution of serious cases or allegations of economic malpractices. Such is the extent of the furore generated by this development that the Chief Justice of Nigeria, the Honourable Justice Dahiru Musdapher on the 14th of November 2011 described the application of “Plea Bargain” in the Nigerian context as being of “dubious origin”. On the 5th of March 2012, the Chief Justice of Nigeria again declared that the concept of Plea Bargain was “surreptitiously smuggled into the country’s laws with the creation of the Economics and Financial Crimes Commission. Explaining his position he stated further that:

“when I described the concept as of ‘dubious origin’, I was not referring to the original raison-d’être or the juridical 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 behind its introduction into our legal system, or its evident fraudulent application.

“You will learn that plea bargain is not only “condemnation without adjudication” as John Langbien decried it, it is as some other critics say) “a triumph of administrative and organizational interests over justice.”

“At its very best it penalizes the innocent who may be tempted to plead guilty to avoid being actuated by judicial default and at its most obnoxious extent it grants ‘undue leniency’ as reward to criminals simply for pleading their guilt.

“You will see also that plea bargain is not only a flagrant subordination of the public’s interest to the interest of ‘criminal justice administration’, but worst of all, the concept generally promotes a cynical view of the entire legal system.

The facts that the above reproduced words were uttered by no less a personality than the Chief Justice of Nigeria and indeed a most eminent jurist at that, ensured that his views would be and indeed have been subjected to close scrutiny by many interested in the debate on the legality, appropriateness or otherwise of Plea Bargain in Nigeria. At the same event, the Chairman Governing Council of the NHRC, Dr Chidi Anslem Odinkalu, in his contribution which was supported by the representatives of the Nigerian Bar Association and the Economics and Financial Crimes Commission, refuted the contention of the CJN. He stated 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.

“This clearly provides legal bases for a plea bargain in Nigeria well before the EFCC Act in 2004. The purpose of plea bargain under the EFCC Act is mostly asset recovery. The Criminal Procedure Act and section 13(2) of the EFCC Act are not the only laws in Nigeria that provide for the plea bargain. Section 76 of the Criminal Justice Law of Lagos state, 2007, extensively regulates the use of plea bargain in courts in Lagos...

...”There are good policy reasons for the plea bargain: no criminal justice system can possibly dispose of all crimes committed within its purview. The concept can assist in ensuring the disposal of criminal cases and management of criminal case dockets. It can minimize delay in case throughput; and can ensure conviction or accountability in cases that could easily be lost or mired in delay or attrition. As a safeguard, a bargain is always subject to judicial approval.

The above stated words encompass to a large extent the major arguments for and against the application of Plea Bargain in most parts of the world. However, as I shall shortly detail, the Nigerian argument in respect of the concept, owing to some factors which are obviously unique to Nigeria, must of necessity take up some local or domestic coloration. However before proceeding to examine these, it is proper to firstly examine the ramifications of the concept known as “Plea Bargain.”    

DEFINITION OF PLEA BARGAIN
The Black’s Law Dictionary defines Plea bargain as:

“A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the other charges”

A Plea bargain may take the form of a charge bargain or a sentence bargain. In a Charge bargain, the Prosecutor will agree to drop or leave out some counts of a charge for a less serious offense in exchange for a plea of guilty to the lesser charge. An instance of this is where a prosecutor decides to substitute a charge of murder which in Nigeria attracts a mandatory sentence of death for the lesser charge of manslaughter which upon conviction attracts between imprisonment for life to only a term of imprisonment. In a Sentence bargain the Prosecutor agrees to recommend a light sentence for the accused person in exchange for his guilty plea to the Charge.  There is also what is known as a Fact bargain in which the Prosecutor agrees to leave out certain facts in the prosecution of the case if the accused will not contest some other clearly identifiable and defined facts.

ORIGIN OF PLEA BARGAIN  
The Origins of plea bargaining are commonly traced to the early nineteenth century when the adversarial system of adjudication evolved rapidly. The introduction of Lawyers and the Jury system brought some form of complexity to the criminal justice system which before then had seemed to enjoy a bit of simplicity. This necessitated a need for the development of a system that would bring about a speedy determination of criminal cases, in the form of guilty pleas, in appropriate cases. With the passage of time, Plea bargains became common place in several jurisdictions. Oren Gazal-Ayal and Limor Rita both of the University of Haifa state that about 95% of the convictions in the United States of America are as a result of Plea bargains. In England and Wales, trials in Magistrates Courts only 8% of cases go to trial. The rest are resolved by Plea bargains. In the Crown Courts only 14.3% go to trial while 61.3% are resolved by Plea bargains.

INTRODUCTION OF PLEA BARGAIN INTO NIGERIA
As earlier stated, the EFCC was the first prosecuting body to introduce Plea Bargain to Nigeria. This was first noticed in some of its high profile prosecutions in which the accused persons were allowed to enter guilty pleas to lesser charges after they had agreed to forfeit most or all of the assets acquired with the funds they stood accused of misappropriating to the State. Thus several persons who based upon the counts in the initial charges preferred against them could have been sentenced to several years of imprisonment, got away with sentences as light as 6 months of imprisonment.

Nigerians from all walks of life have been quick to condemn this practice. It has been argued for example that such a development rather than deter anyone would even serve as a form of encouragement to an unscrupulous individual who will eagerly agree to a forfeiture of only a small proportion of his ill-gotten wealth in the knowledge that he will be out of prison in no time to enjoy the remainder of it. On its part the Commission has been quick to remind anyone who cares to listen of the huge amounts of money and assets valued at Billions of Naira which it has been able to recover. It has posited that the Nation stands to benefit from these resources than any term of imprisonment which the perpetrators of Financial Crimes would serve.

I will in the next edition examine the claims on both sides of the divide vis-a-vis the current position of the law and factors which as stated earlier are immensely unique to Nigeria.

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