MUCH-ADO-ABOUT-PLEA BARGAIN

MUCH-ADO-ABOUT-PLEA BARGAIN [1]

INTRODUCTION

“…a novel concept of dubious origin…invented to provide soft landing to high profile criminals who loot the treasury entrusted to them.” [2]

By and large, proposing [3] and opposing views have been proffered on this concept on this concept on the premises of the actual concern of attaining justice [4] to all parties to a trial – the government, the victim and the accused. Therefore the application of this concept is driven towards attainment of justice. The true meaning of this concept must come into limelight and a perusal on our criminal justice system would also be considered as well as both-sides-of-the-story, criticisms and its acceptability through diverse opinions and perception.

WHAT IS PLEA BARGAIN

The concept is a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence of one or multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of other charges. [5] It is a process in a criminal proceeding by which the accused/defendant, either personally or through his counsel enters into negotiation agreement with the prosecution for mutual satisfactory disposal of a criminal case against him.

From the words, “Plea” and” Bargain”, it appears that Plea is a defendant’s formal response to a criminal charge (or to facts, in a civil suit). Usually, the word entails pleading “guilty” or “not guilty”.

Bargain on the other hand means a mutual agreement between parties or in essence, a contractual relationship.

From the foregoing, plea bargain is therefore a procedure where an accused person can conspire, and for whatever reasons, contract with the prosecutor on the particular aspect of the crime(s) of which he is charged with which he is will be sanctioned. [6] In essence, it known to be an arrangement or negotiation whereby the accused and the prosecution work out manual satisfactory disposition of the case subject to the court’s approval. [7] It is an opportunity for the accused to negotiate his trial with the prosecution in order to save him from the rigors of going through a trial proper and the option for his sanction. It appears that justice cannot be denied through this procedure since the arrangement is subjected to courts approval or discretion.

Despite all these, rhetoric question still hover, what is the fate of the victim of the crime? How is he consoled? Is justice achieved (even if contemplated) in this procedure?

CATEGORIES

Several options are widely available to an accused in the process of this negotiation. [8] Few of them will be viewed.

FACT BARGAINING

This deals with the admission to certain facts in return for an agreement not to introduce certain facts to the court, thereby eliminating the truth of the existence of these facts even if they are provable. This process gives room for a mutual agreement with the prosecution who is obligated to serve the interest of justice and not of that of the accused (alone), having it mind that justice is three-way traffic.  ^[9]

In FEDERAL REPUBLIC OF NIGERIA V SULEIMAN KYOKA & 2ORS [10] it was obvious that the accused person and the prosecution shielded the truth from the court. Certain admissions were recorded and within few months, the case was closed.  

SENTENCE BARGAINING

This involves the agreement to a plea of guilty for a staged in return for a lighter sentence. This is based on a consensus ad idem as it remains an easy burden for the prosecution whom may embark on a long journey into trial to prove his case beyond reasonable doubt. It also in no hidden terms, provides the defendant an opportunity for a lighter sentence. The benefit this offer is that the prosecution has ample facilities to prove his case beyond reasonable doubt within a short period.

CHARGE BARGAINING

 This is indeed the most common form of the concept. This entails negotiation of specific charges faced at trial. The prosecution in this aspect dismisses the other charges in return to plead guilty to lesser charge. For instance, the prosecutor may accept a plea of guilty for man slaughter and dismiss the charges of the first degree murder. In this aspect, the there is no alternative in terms of compensation and this can be an affront to justice, a clog in the wheel of progress. [11]

MOTIVE AND OBJECTIVE OF PLEA BARGAIN

Plea bargain has been found and adjudged to be one of the modern methods to obviate the challenges of unnecessary delays. The United Nations Convention Against Corruption provides the considerability of the possibility of mitigating the punishment of the accused person. [12]

Some foreign countries, saw it as an opportunity to event legal technicalities poised at mitigating the punishment of the accused person, helps in speedy trials and of course the primary purpose - prison decongestion. Plea bargain was begotten, and like the received English law, it was also inherited into the Nigerian legal system.

By and large, plea bargain is poised with a purpose in the legal system. One of it is the reduction of over-crowdedness of prisons in the country. It is a general knowledge that our prisons have been over crowded. [13] The capacity of prisoners is much more than it can hold. [14] At such, decongestion was greatly advised.

Furthermore, it is believed that it can save the accused unending agonies and endless adjournments. [15] It has also opined that the decision to embark on plea bargain is at the discretion of the prosecuting body, in most cases, the Attorney General at both the state and federal level. [16] they are empowered by the provisions of the law to do so. [17]

PLEA BARGAIN AND THE NIGERIAN LAW

Arguments have been canvassed for the support of plea bargain.

Protagonist of the concept opines that the right structure (a good measure to deal with court congestion and recollecting stolen goods from convicts) should be in place in order to prevent convicts from escaping justice. [18] Meanwhile, antagonists have expressed arguments against the advancement of plea bargain in Nigeria. [19]

However, reliance had been placed on certain statutes as been supportive to the concept itself. These statutes would be considered.

CRIMINAL PROCEDURE

“When more charges than one are made against one person and a conviction has been on one or more of them, the prosecution, may with the consent of the court, withdraw the remaining charges or the court, of its own motion, may stay the trial of such charge or charges” [20]

Erroneously, the above provision has no linkages howsoever with the purporting of plea bargain. This is a mere misconception. To prove this, the provision states clearly that the prosecution (at his discretion) may with the consent of the court withdraw the remaining charges. In this provision, it should be noted that the person must have been convicted on one or more charges while the rest are been withdrawn by the prosecutor, or the court suo motu stay the remaining charges.

E. F. C. C. ACT

“Subject to the provision of section 174 of the 1999 Constitution of the Federal Republic of Nigeria (which related to the power to the Attorney-general of the federation to institute continue, takeover or discontinue criminal proceeding against anyone in any court of law), the commission may compound any offence punishable under this Act by accepting sums of money as it thinks fit, exceeding the maximum account to which that person would have been liable if he had been convicted of that offence” [21]

With an observance of the above provision, the commission is permitted to compound any offence and accept such sum of money as it thinks fit, not exceeding the amount of the maximum fine in consideration for the compounding of the offences. [22]

There is indeed, nowhere the section states that the commission should carry out the above acts upon acceptance of the accused to plead guilty to the charges against him. The importance of compounding offences is to encourage amicable disposition of the matters to save the accused, the rigors of trial. [23]

ADMINISTRATION OF CRIMINAL JUSTICE [24]

The 2007 enacted law has generally been accepted by erudite elites as the law which gave birth to the concept, since its inception, most of the corrupt moguls arrested and alleged for financial corrupt practice, would rather opt for trial in Lagos state so as to utilize this resource, in order to get the soft side of justice. The statute provides thus:

(1)  the Prosecutor and the defendant or his legal practitioner may before the plea to the charge enter into an agreement in respect of-

(a)  A plea of guilty by the defendant to the offence charged or a lesser offence of which he may be convicted.

(2)  the prosecutor may enter into an agreement in (1) above after consultation with the police officer responsible for the investigation of the case. [25]

The provision of the law stipulates the whole procedure of the concept. The prosecutor shall make known to the complaint or his representative, the contents of the agreement, whether it includes compensation of restitution order and above all, the agreement must be signed. [26]

The court is restricted by law n participating in the agreement provided that counsel to the defendant may approach the court on discussion of the advantages and possible sentencing option on the acceptability of the agreement. [27]

Where the agreement is concluded, the prosecutor shall inform the court of the agreement and the defendant would be asked to conform the agreement. The trial Judge will ascertain whether he admits the allegation and pleads guilty and record his plea. Wherever there appears to have been a fundamental breach in the agreement, the trial judge shall record a plea of not guilty. [28] Where the defendant is convicted, the trial Judge must be satisfied that such sentence is appropriate. [29]

In the past, top government officials have looted the nation and the type of punishment meted out only encourages corruption. [30] The notion about plea bargain is alarming. They bargain with judges, [31] the accused person to return half of the money and give him a fair punishment – “to go and serve 3 months behind which would be in the hospital” [32]

This serves as not a detriment, but an encouragement to others. [33]

From the above illustrations, the concept poises an escape route for law offenders. It would mean, “If I can steal the whole money, entrusted to me, I can use it to my advantage, one I can bargain with the appropriate authorities, I will be set free”. This sad reflection was observed in FEDERAL REPUBLIC OF NIGERIA VS TAFA BALOGUN. [34] It is something that is not morally right. It is something that induces corruption. If you have stolen, let it be taken by due process in accordance with the rule of law.

The victim in some circumstances would be denied the chance to get redress, and what is the essence of law if justice is not allowed to take its due course? What is the essence of trial, conviction, sentencing if the sentencing is just a mere soft laden to allow the convict “eat the fruit of his labour”? It is heaven-to-earth-far away from justice.

This is a camouflaging concept and if the citizenry believes that justice should take its place at all cost, plea bargain is not a tool for work. It is been used wrongly. Its introduction into the system has bred nothing but pervasion of justice, incessant violation of human rights of citizens.

Instead, Nigerian prisons should be reformed to accommodate the number of inmates sent there. [35] The Nigerian Police Force should also be cautioned of unnecessarily nabbing of suspects.

Furthermore, the judiciary needs to be 100% independent from political control and fear of political parties. The Nigerian judge should be very conscionable when it comes to handling alleged accused persons who were once in power. Bail should also be treated according to law. The concept of plea bargain, cannot proffer adequate solutions to the enumerated problems let alone the untruncated and unabated economic corruption and maladministration. It is therefore an intolerable clog in the wheel of justice, because it is been used the wrong way.

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[1] O. O. DARA ESQ, LL.B(HONS), B.L, Solicitor and Advocate, Dele Olaniyan & Co, Post Office Road Kano. 2012

[2] Former Chief Justice of Nigeria, Justice Dahiru Musdapher at the Opening ceremony of the 5^th annual conference of the section of legal practice, 2011/2012.

[3] Ibid

[4] Mrs Boma Ozobia, Former President of commonwealth Lawyers Association 2011/2012.

[5] The Black’s Law Dictionary 8^th Edition.

[6] Dr. Abdulwahab Egbewole, Ph.d, Faculty of Law, University of Ilorin, Journal, 2006/2007.

[7] Ibid.

[8] Ibid.

[9] ONAGORUWA V. I.G.P 1991 NWLR Pt193 P662 at 650.

[10] UNREPORTED SUIT NO. KN/253/2009 – Most of the cased reported in this discourse are yet to be published in regular law reports

[11] AMINU MUSA & OTHERS V. C.O.P 2003 11 FR 158.

[12] SEE ARTICLE 37 (2) of United Nations Convention Against Corruption which Nigeria is a signatory

[13] O. O Dara Esq, on Rights of an Accused Person – A perusal on the constitutional Right. 2011

[14] Ibid

[15] Dr Abdulwahab Egbewole (op. cit.)

[16] Ibid

[17] Professor Itse Sagay in Plea bargain and the Nigerian Criminal Justice Administration. The nation News paper. www.nationonlineng.net

[18] Mrs Boma Ozobia, (Supra)

[19] Prince Bola Ajibola (2011) Opined that “this concept is something not moral… it is a corrupt practice”

[20] Section 180 (1) of the Criminal Procedure Act.

[21] Section 14 (2) Economic and Financial Crimes Commission Act

[22] Dr Abdulwahab Egbewole (Supra)

[23] Ibid

[24] Administration Of Criminal Justice (2007) Lagos State Laws.

[25] Section 76 Administration of Criminal Justice (2007) Lagos State Laws.

[26] Ibid.

[27] Ibid

[28] Ibid

[29] FEDERAL REPUBLIC OF NIGERIA V LUCKY IGBINEDION (UNREP NO. FHC/EN/11C/2011)

[30] Since the Obasanjo Administration, state governors and other top government officials have looted the nation treasury to the tune of N999 billion. THE TRUTH ABOUT CORRUPTION AND TREASURY LOOTING IN NIGERIA – www.elombah.com

[31] FEDERAL REPUBLIC OF NIGERIA VS DIEPREYE ALMIEYESEIGHA (UNREP NO. FHC/L/328C/05)

[32] FEDERAL REPUBLIC OF NIGERIA VS CECILIA IBRU (UNREP. SUIT) where the accused person was alleged of N400 billion scandal, and managed to forfeit just N 191 billion

[33] FEDERAL REPUBLIC OF NIGERIA VS LUCKY IGBINEDION, where the accused was alleged to have carted several billions of Naira, he was fined the sum of N 3 million which he paid without any effort or stress.

[34] (UNREP. NO FHC/ABJ/CR/14/2005)

[35] O. O. DARA ESQ on RIGHT TO COUNSEL: A PERUSAL ON THE CONSTITUTIONAL RIGHT, 2012