Legality and effect of plea bargain in criminal prosecution in Nigeria (2)
Last week, I began an examination of the concept of plea bargain. Whilst tracing its introduction in Nigeria, I examined the comments made by the Chief Justice of Nigeria and those of other eminent Nigerians for and against the introduction of plea bargain. Having laid this background, it is pertinent to examine in some details the major arguments with respect to plea bargain with a focus on some factors which I consider unique to Nigeria.
It is widely believed by some that Plea Bargain as a concept is unknown to Nigerian law. In other words it is considered illegal. The Chief Justice of Nigeria obviously shares this view. I however do not belong to this school of thought. Interestingly this does not mean I agree with those, including the Chairman of the Governing Council of the NHRC, who are quick to point to one statutory provision or the other as the legal basis for the practice of Plea Bargain in Nigeria. Some of these persons posit that Plea Bargain is provided for in Sections 180(1) of the Criminal Procedure Act and Section 14(2) of the Economic and Financial Crimes Act 2004.
Section 180(1) of the Criminal Procedure Act provides as follows:
“When more charges than one are made against a person and a conviction had 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 the trial of such charge or charges”.
Without a doubt, all that Section 180(1) does is to empower either the Court or the Prosecution with the consent of the court, to withdraw or stay some counts against an accused person where that accused person has been convicted of some of the other counts with which he was charged. This evidently shows that the decision to drop some charges will occur only after a conviction has been secured against the accused person. However in Plea Bargain the decision to withdraw some counts against the accused person occurs before the trial of the accused person.
On its part Section 14(2) of the EFCC Act provides as follows:
“Subject to the provision of Section 174 of the Constitution of the Federal Republic of Nigeria 1999 (which relates to the power of the Attorney-General of the Federation to institute, continue or discontinue criminal proceedings against any persons in any court of law), the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, not exceeding the amount of the maximum fine to which that person would have been liable if he had been convicted of that offence”.
This Section empowers the EFCC to accept, in lieu of prosecution, a sum of money, not exceeding the fine which would have been imposed upon the accused person if he were convicted. The provisions of Section 14(2) much like the provisions of Section 180(1) of the Criminal Procedure Act are different from Plea Bargain. As stated earlier, Plea bargain may take the form of a charge bargain in which the accused pleads guilty to a lesser charge or a sentence bargain in which the accused agrees to plead guilty to the Charge in exchange for a light sentence.
PLEA BARGAIN HAS ITS ROOTS IN PROSECUTORIAL DISCRETION
Plea Bargain as a concept has its origin in the wide discretion enjoyed by the prosecutor in many parts of the world particularly in common law jurisdictions with the adversarial or adjudicatory system. Under such systems, the prosecution has a discretion not only with regards to the decision whether or not criminal prosecution should be initiated in particular circumstances, but also with regards to the question as which or what charges should form the basis of the prosecution especially where the conduct of the accused person discloses the infractions of several provisions of the law. It cannot be denied that the prosecutor in Nigeria enjoys this same level of discretion. This is even more so as the Attorneys General of the States and that of the Federation are constitutionally empowered to discontinue proceedings by entering a plea of nolle prosecui even where prosecutions have been initiated.
The exercise of this discretion has historically been determined by a conglomeration of factors, which often may interplay, including questions of Public Policy and Resources available to the prosecution. For example, it may be in the interest of the public to institute criminal prosecution of some offences which ordinarily are considered grave enough as to warrant such prosecution. Yet these offences may have been committed on so large a scale that it would be impracticable if not impossible to prosecute all known or suspected infractions of the law. In such a scenario, the prosecution may chose not to file charges at all or may elect to charge only the more serious infractions.
A classic example can be found in the aftermath of 1994 Genocide in Rwanda in which about 800,000 people were killed. Such was the level of the atrocities committed that a full prosecution of all suspected participants in the genocide might have necessitated a prosecution of a fair percentage of the Hutu Population. At a point in time the number of detainees awaiting trial was conservatively put at 100,000. This would definitely not augur well for the process of reconciliation and nation building which was imperative at the time. The Government also could not afford to spend scarce resources on such large scale prosecutions. As a means out of the problem, the Government in collaboration with the United Nations set up a system whereby the major organisers of the Genocide were tried before the International Criminal Court for Rwanda. On the domestic front, the Government set up what was known as the Gacaca Courts in which the accused persons were invited to plead guilty in exchange for lighter sentences. By this decision, the government was able to balance a necessity to punish those accused of participation in the genocide with limitations imposed by the political and economic realities of the time.
Whilst opponents of the Plea Bargain have stated that an innocent person may be left with no choice but to plead guilty so as to avoid a long prison sentence if he elects to fight the charges and is convicted, proponents have countered by stating that in such scenario, the blame lies not in the adoption of the system of plea bargain but in the imperfect Judicial system which would permit the conviction of an innocent person.
In Nigeria there is no doubt that considerations such as costs of prosecution and ability of full prosecutions exist. Corruption, financial and other crimes are widespread. Yet the bodies set up to investigate and enforce the laws on corruption and financial crimes still require much more funding to be able to effectively carry out their responsibilities. Foreign Governments whose nationals are at the receiving end of most financial crimes and whose business and economic interests are mostly threatened by it recognise this fact and have largely taken it upon themselves to provide much needed funding and training for the Economic and Financial Crimes Commission in particular.
Furthermore, economic crimes are by their nature different from most other crimes. With the advent of technology such crimes are not easily detectible. Even where they are detected, prosecuting financial crimes often attracts huge costs associated with gathering evidence and assembling witnesses some of whom may be expert witnesses. Therefore in most Jurisdictions the emphasis in the prosecution of economic crimes is not entirely focused on securing the conviction of the accused person however desirable this might be. Much consideration is also given to the repatriation of the illegally acquired funds.
Based upon the above stated considerations, and an examination of the duties of the EFCC as stipulated under the EFCC Act 2004, it is not difficult to see why the EFCC has in some instances resorted to the use of Plea Bargain. Section 7 of the EFCC Act provides for the special powers of the Commission. Section 7(2) provides as follows:
“The Commission is charged with the responsibility of enforcing the provisions of-
(a) The Money Laundering Act 2004; 2003 No .7 1995 No13
(b) The Advance Fee Fraud and Other Related Offences Act 1995;
(c) The Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as amended;
(d) The Banks and Other Financial Institutions Act 1991, as amended; and
(e) Miscellaneous Offences Act
(f) Any other law or regulation relating to economic and financial crimes including the criminal code or penal code.”
The above obviously places a huge responsibility on the Commission. However by the provisions of Section 13(2) of the Act, the prosecution of infractions of the Statutes is entirely that of the Legal and Prosecution Unit of the Commission. However large this Unit may be I doubt if it is or can ever be adequately equipped, in terms of manpower and other necessary requirements, to successfully prosecute all disclosed cases of infractions of the statutes listed in Section 7(2). In the United States of America, the Federal Bureau of Investigations which is empowered to investigate serious financial crimes particularly when they have been committed across state lines does not have such prosecutorial powers. It only provides investigative information to Federal Attorneys who will then take the decision whether or not to prosecute. With such a deluge of responsibility, Plea Bargain may appear to be an attractive alternative.
However it cannot be denied that the application and operation by the Commission of the Plea Bargaining System has been fraught with some controversy. In one particularly disturbing instance, the Commission reduced a 191 Count Charge against a former Governor to a single count charge which related only to an alleged failure of the Governor to fully declare his assets in the assets declaration form of the Commission contrary to Section 27(3) of the EFFC Act. Upon conviction the former Governor, in line with the agreement was required to refund the sum of N500,000,00 (Five Hundred Million Naira), forfeit three Houses and also sentenced to prison term of Six Months in respect of which he was given the option of paying a fine of N3.6Million. No mention was made of the Billions of Naira the said former Governor was accused of misappropriating from public funds.
Naturally, opponents of the Plea Bargain have rightly referred to this development as an example of the abuse to which Plea Bargain could be subjected in Nigeria. Many have accused the Commission itself of underhand if not out rightly corrupt considerations in its decisions to enter into Plea Bargains. With the recent admission of the new helmsman of the Commission that some members of staff of the Commission are corrupt, these allegations are no longer to be as farfetched as they originally thought to be. This issue of corruption is a consideration that is obviously unique in the debate about the propriety or otherwise of Plea Bargains in Nigeria.
In conclusion I am of the firm conviction that Plea Bargains can be positively harnessed in the development of the Country’s Criminal Justice System. It is an open secret that Nigerian Prisons are over populated. Unfortunately most of the inmates are still awaiting trial. With proper planning Plea Bargains could result in a substantial reduction of awaiting trial inmates. However, to avoid cases of abuse, there is a need to put in place clear parameters for the implementation of Plea Bargains. This may take the form of amendments to the Criminal Procedure Laws of most States or in the case of the EFCC or other Federal Agencies, an amendment of the Criminal Procedure Act. The Attorney General of the Federation may also act pursuant to Section 43 of the EFCC Act, by making regulations concerning the use of Plea Bargain.