PLEA BARGAIN IN NIGERIAN CONTEXT

INTRODUCTION In recent days, anyone who has been watching the legal drama in the Nigeria legal theatre will certainly not be unaware of a new catch- phrase currently termed plea bargain. Much has been said and written about the propriety or otherwise of this concept in our criminal justice system. Many see’s it as a means of circumventing the stiffer penalties that may have been prescribed by the statues. Consequently plea bargain, in the perception of many has sentences secured through it to be politically motivated and this they said amounted to a slap on the wrist. It would be shown in the course of this write up that this argument is weak, parochial, porous and unacceptable because it lacks legal justification.
Therefore, what this writer intends, is to debunk and puncture this unimpressive argument by excavating the history, justifying the other side of plea bargain and also recommending ways through which it can be sustained, maintained and nurtured by our criminal justice system.
WHAT IS PLEA BARGAIN?Plea in the legal parlance, means the accused person’s formal response of “guilty” “not guilty” or nolo contendere, i.e. no contest” to a criminal charge. While to bargain is to “negotiate” or to “agree”. The legal combination of this two concepts produces the phrase PLEA-BARGAIN – also known as negotiating settlement, copping plea, copping out, plea argument or negotiated plea.
Page 1173, seventh edition of the Black’s Law Dictionary gives the definition of plea bargain as a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of multiple charges in exchange for some concession by the prosecutor usually, a more lenient sentence or a dismissal of the charges.
From the above definition, it is safe to state that a negotiated plea will usually involve the accused pleading guilty to a lesser offence or to only one or some of the counts or a multi count indictment in return for a lighter sentence than that possible for the graver charge.
HISTORICAL DEVELOPMENT
The norm is an old and established procedure in criminal law administration. Although, novel to the Nigeria judicial environment, Plea bargain has its origin in the United State of America as part of their belief that society is dynamic, so the law needs to keep with it. The practice came about as a potent weapon in criminal law jurisprudence; it could be described as a child of necessity employed in deserving cases by the state in certain high profile cases to facilitate a negotiated soft landing platform for accused persons who are willing to save the time and huge expenses for the state, through a guilty plea and payment of compensation/forfeiture of proceeds of the crime, to avoid undue publicity and the attendant image crisis.
Scholars began to shed light on plea bargain in the 1960s and the Supreme Court endorsed 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).
However, America first used plea bargain in 1973 when her Vice President, Spiro Agnew, was made to resign on the accounts of fraud, but was later convicted of refused to pay taxes.
A recent case in point is one of the celebrated child molestation trial involving Michael Jackson, the acclaimed king of pop music, by the court in the United State and even Maria Jones, the Olympic medalist which despite the hype and hullaballoo, ended in no contest, literally speaking under a plea bargain arrangement.
IN THE PROCESS OF BARGAININGIn later declarations, the court built a number of safeguards into the bargaining process. It maintained in the case of PERKINS v. COURT OF APPEALS 738 S.W. 2d 276, 282 (Tex Crim. App. 1978) that:
i. The promise of a prosecutor made during plea negotiations must be kept.
ii. To be valid, a guilty plea had to be made voluntary and with full knowledge of its implications.
Plea negations are subject to the approval of the court. In most instances the bargain is arrived at between experienced and knowledgeable counsel on both sides and is readily approved by the court. If however, the court is willing to approve the plea bargain, the defendant must choose between withdrawing the guilty plea (and thus going on trial), accepting the plea bargain with such modifications as the judge may approve. Once the court has accepted a guilty plea pursuant to a plea bargain, the court cannot unilaterally alter it without permitting the defendant the opportunity to withdraw the plea. “The procedures are governed by the provisions of S. 11(e) of the Federal American Criminal Procedure Rules.”
CRITICISMS AND THE OTHER SIDES OF THE PLEA
Plea bargain is not settlement. Strictly speaking, it is not even a civil agreement. It is now done all over the world. Right now, the United Nation (UN) has adopted it and is using it to prosecute all world crime cases. In spite of the acceptance of the norm all over the world, many Nigerians remain skeptical about the modus operandi and the legality of the plea in our criminal justice policy. The critics are of two main schools of thought. The first school stresses due process and argues that plea bargain does not exist in any of our laws and therefore its mere mention is illegal. The second school though impliedly admitting its legality stressed the sentencing policy and points out that society’s interest in appropriate punishment for crimes is reduced by bargaining plea.
Plea bargain also comes under fire because it is perceived to be hidden from judicial scrutiny. Other critics believe that overuse of plea bargaining breeds disrespect and even contempt for the law. They say criminals look at the judicial process as a game or a sham, much like other deals made in life.
It is important to state at this juncture that despite its controversial nature, plea bargain has continued to receive the blessing and judicial anointing of our courts and other courts alike. For example in the year 1971, while sitting excatedra Chief Justice Warren E. Burger reflected on the case of SANTOBELLO v. NEW YORK, 404 US 257, 260, 92 S.ct. 495, 498, 30 L.Ed. 2d 427, 432 (1971) in the following manner:
the disposition of criminal charges by agreement between
the prosecutor and the accused, sometimes loosely called
“plea bargain” is an essential component of the administration
of justice. Properly administered, it is to be encouraged.
Plea bargain as an essential component of justice administration, involves discussion that aim toward an agreement under which the accused defendant will plead guilty in exchange for some prosecutorial or judicial concession. These concessions are of four types.
1. The initial charges may be reduced, thus ensuring a reduction in the sentence.
2. In instances of multiple charges, the number of counts may be reduced.
3. A recommendation for leniency may be made by the prosecutor, thus reducing the potential sentences from incarceration to probation or forfeiture.
4. In cases in which the charges involve a negative label, such as child abuse the complaint may be altered to a less repugnant one, such as assault.
Plea bargaining will necessarily endure. It is great safety value, perhaps the only factor that stands between the administration of justice and utter chaos. Without this tool, every defendant charged with an offence, however serious or benign, would have to go to trial. As it is, millions of cases are processed in the court each year. With existing resources, a person arrested today might have to wait a quarter – century for his or her case to be determined considering the delay mechanisms that characterized the Nigeria judicial administration. Aside from expediency, the “virtue” of plea bargaining is that it is beneficial to both the accused and the state. For the accused, plea bargain has three advantages.
1. It reduces the possibility of detention during extensive pretrial and trial processes. The accused can have his case completed more quickly and know what the punishment will be instead of facing the uncertainty of a judges sentencing decision.
2. It decreases the cost of legal representation.
3. It increases the chances of a reduced sentence. For the accused charged with murder it can remove the possibility of life sentence or even death.
For the state plea bargain also has some advantages.
1. It reduces the overall financing cost of criminal prosecution.
2. It improves the efficiency of the court by having fewer cases go to trial.
3. It enables the prosecution to devote more time and resources to other cases and earn their fee quickly
4. It precludes any possibility of having a serious offender escape justice because of some real or imagined weakness in the case.
It is a trite jurisprudential truism that justice at all material time must not only be done but must manifestly and undoubtedly be seen to be done; this informed the maxim fait justicia et ruat in coleuim. If therefore justice is attainable by plea bargaining, I am convinced beyond all standard of doubt that it should be encouraged to discourage technical justice and judicial bottlenecks.
The legality of plea bargain which I had earlier raised in the course of this writing had been a major cause of worry to legal and intellectual minds alike. Many have criticized this norm on the ground that it does not have a place in our present criminal law jurisprudence and it is not an option available to the prosecution in criminal trials. The writer did like to state with utmost certainty that this is a total misconception of our criminal justice policy. It is trite that any country that operates a system that allows for amendment of charges and laws also allows for plea bargain. In other words, since our law allows an accused to change plea, a prosecutor can therefore amend his charges. This tends to conform with the principle, notion and spirit of plea bargain.
Moreover, a cursory look at the working of plea bargain in our criminal justice system signifies that the process had been significantly exploited to fight serious crime like money laundering, drug trafficking, financial misappropriation and criminal activities of that mode. One of the bodies set up to look into these offences is the anti graft body known as the Economic and Financial Crime Commission, hereinafter referred to as EFCC.
The EFCC since its establishment via the Economic and Financial Crime Commission Act 2004 (as Amended) has adopted plea bargain as a ready tool for criminal prosecution. S.14 of the Act is self explanatory, (I beg to cite).
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, (nolle prosequi), the commission
may compound any offence punishable under this Act by not
exceeding the amounts of the maximum fine to which that
person would have been liable if he has been convicted of
that offence.
The afore cited section no doubt empowers the EFCC to enter plea bargain with the accused by compounding the offence before it goes to court, they can agree with the suspect who would be told to return all the loot and his punishment will be negotiated. It is at the discretion of the Attorney General of the Federation (AGF), the prosecutor and the court to reduce the sentence of the accused person and not to eliminate it.
Needless to state that the EFCC Act is a subsidiary legislation of the National Assembly made subject to the provision of the 1999 constitution by the law making power conferred in it.
It is therefore heartwarming to note that the EFCC has succeeded in utilizing this section of our laws by prosecuting some of the so called “bigmen” and in some cases secure their conviction through the court by solely relying on plea bargain. Prominent among which are Chief Tafa Balogun who was convicted and his property confisticated after he pleaded to bargain. Also on this list is the former Governor of Bayelsa State, Chief D.S.P Alamieyeseigha.
EFFECTS OF PLEADING TO BARGAIN
1. Plea bargain carries the same legal effect as any other crime upon conviction. At the end of the day the accused person remains an ex convict with all the disabilities and stigmatization that status places on him.
2. If it is a financial crime, for example, money laundering the proceeds of crime is taken away as a means of restitution. Delivering his judgment at the federal High Court in Lagos, Justice Mohammed Shuaibu held in F.G.N v. Alamieyeseigha that;
In respect of the properties in the charge sheet, they are hereby forfeited to the complainant (Federal Republic of Nigeria). The proceeds after sale would be forfeited to Bayelsa state government.
Plea bargain is therefore justified by the reason that conviction will not be placed on the negotiation table, as the accused will definitely serve his jail term no matter how little it might be. The plea bargain does not eliminate conviction but reduces the jail term according to the provision of the law.
RECOMMENDATIONS AND CONCLUSIONBecause plea bargain benefits all involved, it is little wonder that it existed long before it was publicly acknowledged by the Nigeria legal community and it will still continue to exist, even when many Nigerians are calling for its abolition because efforts to abolish plea bargaining may result in bargaining over the charges instead of over the sentences that will be recommended in exchange for a guilty plea and if a prosecutor forbids his or her staff to plea bargain, judges may become more involved in negotiating and facilitating guilty pleas that results in predictable punishment for offenders. This writer is therefore, of the opinion that the court should clearly define, the parameters of plea bargain, so that we can have a clear cut rules and benchmarks for determining deserving case as it is increasingly becoming obvious that plea bargain will be around for a long time considering the high level of crime in Nigeria.
The terms of the agreement of a public office holder who pleads bargain to any crime involving (corruption) should be made public. This will further reduce the rate of self enrichment and corruption in Nigeria.
Before the trial of an issue on plea bargain is embarked on, the judge should consider whether there is any part of the agreement by which prosecution should be bound. Counsel should also consider which issues are to be tried and which of the prosecution statements were relevant to them.
In conclusion, being a greater safety value, it should be encouraged and utilized within the scope of the Nigeria criminal justice system. One can only hope that our courts, the prosecution and the accused will be well guided in their negotiation, acceptance and usage of plea bargain.

REFERENCESBlacks Law Dictionary. Seventh Edition. Pg. 1175
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 Amended)
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. App. 1987)
Santobello v. New York 404 U.S 257, 260. 92 S CT 495, 498, 30 L Ed 20 427 432 (1971)

BY.
Onwudiwe Martins O.