Whistle-blowing policy of the federal government is already yielding result in view of millions of naira including dollars being recovered by the Economic and Financial Crimes Commission (EFCC). Is there also the need for a wider application of plea bargain in the recovery of looted funds? AKEEM NAFIU asks
Ted. C Eze, a lecturer from the Faculty of Law, Anambra State University, Igbariam and Eze Amaka G. of the Nnamdi Azikwe University, Awka’s Faculty of Law, who are both holders of Ph.D while x-raying the concept of plea bargain in criminal justice system, said “plea bargain” is a new phenomenon in the Nigerian legal system. It has been trailed with a lot of controversy. The Economic and Financial Crimes Commission has recently been applying the concept to release many corrupt public officers who should have been in jail.
“The idea is that they agree to plead guilty for a lesser charge with minimal punishment in exchange for the return of most of their stolen wealth. “The opponents of this practice believe that the end result of the practice would be counter-productive in the fight against corruption as it will encourage other public officers to steal public money.”
This, however, at the weekend became a subject of discourse following a request by a Justice of the Supreme Court, Justice Kumai Bayang Aka’ahs that there was the need for a wider application of plea bargain if the war against corruption must be won.
Akaahs specifically said that if the country must get out of its corrupt practices, President Muhammadu Buhari must make greater use of the plea bargain concept in the ongoing war against corruption especially by focusing more on ensuring that monies embezzled by public officials were returned. He said: “I think in the long run instead of having so many people behind bars, it will help our economy if they return what they have stolen. We can tell them to go and sin no more.
Then if they repeat, they will be sanctioned. “Most of those who steal these funds do so because they want to run for governorship or such other positions. If they know that they will be bared for some time, they will be de-terred. I think we need a wider understanding of the concept of plea bargaining.”
But this again spark of another round of controversy as lawyers including Senior Advocates of Nigeria could not agree on why plea bargain should be incorporated into the anti-corruption crusade of the Muhammadu Buhari-led administration.
While some believe that plea bargain arrangement would hasten the recovery of looted funds and get justice for the society and the offender, others said it must be discouraged as looters of the treasury must face the full wrath of the law.
Plea bargain Plea bargain, according to The Black’s Law Dictionary is “a negotiated agreement between a prosecutor and a criminal defendant who pleads guilty to a lesser offence or to one or more multiple charges in exchange for some concession by the prosecutor usually a more lenient sentence or a dismissal of other charges.
The concept of plea bargain was introduced in 2004 under Section 13 (2) of the EFCC Act, with a view to expeditiously recovering funds looted by public officers. In other words, plea bargaining was born out of expediency. The advent of the Lagos State version of plea bargain in 2007 could also be traced to Section 79 of the Administration of Criminal Justice Law (ACJL) of Lagos State, 2011.
Plea bargain was also provided for in Part 28, Section 270 (Subsections 1 – 18) of the Administration of Criminal Justice Act (ACJA) 2015, as one of the possible pleas available to a person charged with crime. Section 270(1) provides two ways through which plea bargain may be initiated, being by an offer made by either the prosecutor or the defendant.
In the case of defendants, the offers can be made directly or on their behalf. However, the consent of the victim of crime must be sought either directly or indirectly. A defendant’s plea under plea bargain arrangement is taken ‘during or after the presentation of the evidence of the prosecution, but before the presentation of the evidence of the defence’.
Conditions for the making of the plea were enumerated under Section 270 (2) as follows: ‘Where the evidence of the prosecution is insufficient to prove the offence charged beyond reasonable doubt; ‘Where the defendant has agreed to return the proceeds of the crime or make restitution to the victim or his representative, or ‘where the defendant in a case of conspiracy has fully cooperated with the investigation and prosecution of the crime by providing relevant information for the successful prosecution of other offenders.’ However, Section 270 (2) (a) makes it clear that a crime that is provable is not subject to plea bargain.
Despite this, there is always a consideration for which the state would make a bargain in all cases. Besides, an accused person remains a convict despite plea bargain and in the event that he or she commits another or similar crimes in the future, the records available at the Central Criminal Registry which its creation was provided for in Part 2, Section 16 of the Administration of Criminal Justice Act (ACJA) will be evidence to disallow leniency in the future. Section 270 (2) (b) (c) also pins down the guilt of the defendant.
It is therefore impossible for an accused person to turn around and change his or her mind about plea bargain. It is therefore evident from the above that the concept is not alien to the country. Although, outrage had trailed introduction of plea bargain as a corrupting influence which enables the rich to escape sanction at the expense of the poor, the call by Justice Aka’ahs on the need for the federal government to have a second look at its provisions with a view to accommodating it in the graft war cannot be treated with kid gloves.
Lawyers speak Should the federal government incorporate plea bargain in the graft war as being championed by Justice Aka’ahs of the Supreme Court? Lawyers say yes, no To some of them, who bared their minds on the issue with New Telegraph Law at the weekend, plea bargain in the fight against corruption would aid corrupt practices rather than extinguish its fire.
While some of them gave their backings for the adoption of plea bargain in the corruption fight as being canvassed by Justice Aka’ahs, others dismissed it, saying its wider application would facilitate corrupt practices among public office holders.
For instance, Tayo Oyetibo (SAN), Chief Niyi Akintola (SAN), Wale Adesokan (SAN), Adekunle Ojo and Malachy Ugwumadu, who believe plea bargain was a must in the war against corruption, said there the need for the federal government to ensure that plea bargain in corruption fight was encouraged and developed.
They, however, added that the focus should be more on recovery of looted funds than offenders’ prosecution. According to them, once sanctions provided for in the plea bargain arrangement were fully adhered to, it should suffice for the society to adhere to them rather than embarking on endless litigation that would lead to nowhere.
Adesokan and Ojo, who are against Justice Aka’ahs’ suggestion, said the right to prosecute which belonged to the state should not be taken away under whatever guise as it was the prerogative of the state to ensure that at every point in time the state decided it was worth the while to prosecute an individual from who it had recovered some loot.
To Oyetibo, there must be a proper mechanism for the wider application of plea bargain if Justice Aka’ahs’ request must be strictly followed. He said: “Plea bargain should be encouraged and developed. But there should be mechanism for the application of that regime. The procedure should not be haphazard but well thought out and guided by rules.
“Allowing those who are willing to surrender their loot to go will have to be subjected to rules and it depends on the mechanism. It should not be arbitrary. But above all, plea bargain should be encouraged.” Also speaking in same vein, another Senior Advocate of Nigeria, Akintola said federal government should move away from endless litigations and embrace plea bargain in its corruption fight. “Let me say straightaway that plea bargain is not a new phenomenon.
That is the practice in civilized world. In any case, the Constitution has made provisions for sanctions against public officers. Once a public officer is indicted and convicted, whether through plea bargain or not, he will remain convicted.
“To that extent, he will be barred from holding public office for ten years. If that punishment is there in addition to his returning the loot, I think that should suffice for the society rather than embarking on endless litigations that will lead to nowhere.
“Like we have seen in recent time, our anti-graft agencies don’t have sufficient manpower and capacity to do a thorough investigation before going to court as reflected in a case of a former Adesokan Ojo Head of Service of the Federation, Steve Oronsaye, who was recently let off the hook. If you see the charge, you will be wondering who put it before the court in the first place and how will it be sustained? Most of the time, they go to court on mere suspicion without any thorough investigation.
“So, I think if government embraces plea bargain and ensure that anyone convicted remain convicted, in addition to retrieving their loot, they will still be barred for holding public office for ten years, it is good enough.” Ugwumadu urged government to adopt the provisions of plea bargain in the fight against corruption.
He said: “You will appreciate that the whole concept of plea bargain has now gained legislative approval not just in the Administration of Criminal Justice Act 2015 but also in the administration of Criminal Justice Law of Lagos State 2011. Those were legislative backings of this policy that is prevalent in the United States.
“The main purpose of it is to weigh the cost implications of full trial as against the recovery of looted funds with a substituted penalty which may not secure maximum punishment for the offence. It is also aimed at recovering for the nation as much looted fund before the lighter sentence is passed. “So, the focus is on recovery and not punishment. However, it’s been a polarized position in the sense that there are those who are of the view that if that line is towed, there is a tendency that it is abused.
“There are also people, particularly in our socio-economic circumstance that are prepared to walk into prison if they can secure a minimum sentence and then keep as much as they can even if the country wants to recover as much as it can.
“There are also others who are of the view that despite its advantages, plea bargain arrangement must be closely monitored and implemented to prevent its abuse. “I think the views of the Justice of the Supreme Court are reasonable in the sense that if the aim of plea bargain is to recover as much loot as possible as against the imprisonment terms, then, it can be limited to the issue of financial crimes.
So, I am persuaded and swayed by the judge’s suggestion.” But Adesokan differed. He said that the existence of a plea bargain arrangement should not deter the prosecution from carrying out its duties. Adesokan said: “I have a lot of respect for Justice Aka’ahs. His views are always very sound but I will differ slightly on this occasion. My view is that each case should be taken on its own merit.
Whether or not prosecution will be completely forgotten, a lesser offence will be in place or a lesser sanction will be imposed and should be done on case by case basis. “Part of what informs plea bargain are the sense of remorse and quality of evidence. For instance, if the prosecution was able to lay its hand on quality evidence, even if an accused person want to return the loot, it will not be good enough for the prosecution to drop its case against the accused person because it will amount to a slap in the wrist. In essence, what I am saying is that it should be done on case by case basis.”
Adesokan was echoed by a former Vice-President of the Nigerian Bar Association (NBA), Mr. Adekunle Ojo, who described Justice Aka’ahs’ suggestion as misplaced He said: “With due respect to the judge, I think the suggestion is misplaced because it is contrary to the law.
The EFCC Act says you can make the man who has looted the treasury return every fund he has looted and still be sentenced to 10 years imprisonment without an option of fine. “It should not even come from a judge because basically if all the cases were settled at the level of the prosecutor, then, what cases will the judges be attending to? “The right to prosecute belongs to the state.
This means that at every point in time, the state decides whether it is worth the while to prosecute an individual from whom it has recovered some loot. It is actually a subject of prosecutorial discretion to decide whether to prosecute or not. “Even if a man was caught red handed and the Director of Public Prosecution (DPP) chooses to enter a ‘nolle prosequi’, there is nothing anybody would do about it.
“By and large, plea bargain has always been part of the system and I believe that the right to prosecute a case should not be hampered by anybody. So, I don’t think the suggestion should be made official and I am not in support of it.”