The Concept Of Plea Bargain As A
Veritable Tool For Justice Or Corruption Under The Nigerian Criminal Justice
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:
The promise of a prosecutor made during
plea negotiations must be kept.
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.
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
then is a criminal?
Simply put, a criminal is one who has committed a
Justice has been defined as “the fair and proper
administration of laws.
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.
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:
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.
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
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:
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
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
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
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.
(N.D Bus. Admin. & Mgt. FEDPOLY Ede; LL.B O.A.U; B.L
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