By NBF News
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The Nigerian criminal justice system is currently enduring perilous times in consequence of the fatal attraction offered to some of its operators by new fangled ideas from across the oceans, especially the USA. In the era of so-called globalisation, there seems to be a proclivity by the Nigerian elite to gobble meltdown almost every concept, however, zany or odious so long as it bears the imprimatur of the foreign manipulators and controllers of the country's political economy.

The claims by Nigeria's governing class to play a leadership role on the African continent notwithstanding, the saying that imitation is the worst form of flattery would seem to have gotten the better of those who continue to lord it over their hapless compatriots.

It is within this context that the topic of this presentation has to be structured. For, without properly situating the current infatuation with plea bargaining by some of the nation's legal practitioners within the correct socio-economic and political perspectives, the analysis of the phenomenon could very well be arid and superficial. The law, as is well-known, is a category constituting part and parcel of the superstructure which is, more often than not, determined, conditioned and influenced by the economic base of society.

Accordingly, it is intended to begin by interrogating the milieu of corruption vis-à-vis public accountability before getting to grips with the concept of plea bargaining and what it portends for the Nigerian criminal justice system. Finally, an attempt would be made at a prognosis of plea bargaining within the country's justice delivery system in view of the conflicting signals emanating from the Nigerian state.

Corruption, public accountability and due process of law

Corruption s, arguably, the most critical threat to the survival of the Nigerian state. In fact, if Nigeria fails to stop it, it could jolly well stop Nigeria. It was believed that it was in awareness of this, that the governing class apprehended the necessity to enact some relevant legislation, particularly the Independent Corrupt Practices Commission Act, 2001 and the Economic and Financial Crimes Commission Act, 2002.

Nevertheless, after some marginal gains in the anti-corruption crusade, it would seem that the wheel has now turned full circle, as fewer and lesser victories are now being scored in this endeavour. Indeed, many there are who would insist that Nigeria has been worsted in the struggle to sever the head of the cobra of corruption.

While it must be admitted that for as long as one could remember, the country's laws had always frowned against corrupt practices, it was only after the new anti-corruption laws were passed and were being enforced that public accountability and transparency came to be taken seriously by all and sundry.

Corruption, especially in the public service had grown in leaps and bounds partly as a result of insecurity of tenure and fear of the unknown and pennilessness after dutiful service to the nation, a situation exacerbated by the somewhat reckless and indiscriminate dismissal of top public servants 'with immediate effect' during the Murtala Muhammed regime. Adherence to the good, old general orders would seem to have been dealt a fatal blow.

Paradoxically, while the fear of the EFCC was to later become the beginning of wisdom across the land, the selfsame EFCC Act helped lay the foundation for plea bargaining which is now threatening to make mincemeat of the raison d'etre of the anti-corruption war. The notion of unintended consequences and Murphy's Law had apparently operated with devastating effect on the nation's psyche so much so that many now wonder if we actually got it right in the first place.

Plea bargaining and the criminal justice system generally

There are certain underlying assumptions of the criminal justice system in Nigeria such as the presumption of innocence, proof of guilt beyond reasonable doubt, onus of proof lying on the prosecution, the nullum crimen maxim, etc. which had helped oil the functioning of the country's justice delivery system generally. However, with the increasing application of compounding of crimes as provided under s. 14 of the EFCC Act in a manner not altogether dissimilar with plea bargaining, the operating principles of the country's criminal justice system are steadily being eroded and whittled down almost beyond recognition.

The thinking in many minds is that we must have mistaken the wood for the trees. As is generally said, the road to hell is paved with good intentions …

Now, plea bargaining is 'the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant's pleading guilty to a lesser offence or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.' In other words, it is a scheme under which an accused is allowed at the pre-trial stage to opt during trial for either a 'change bargain', that is to say, plead guilty to a lesser charge or a 'sentence bargain' which enables him to plead guilty to only some of the charges filed against him with an understanding in advance of what his sentence would be.

Sometimes, especially in situations of joint offences such as conspiracy, in exchange for release from prosecution, an accused is allowed to turn a prosecution witness against co-offenders in a bid to facilitate prosecution of the crime. As attested to by an experienced US-based Nigerian trial lawyer, Kayode Oladele, some consider this an unconscionable extension of the plea bargain idea which is tantamount to bribery.

Not withstanding, plea bargaining has continued to enjoy increasing application in many jurisdictions because it supposedly aids expeditious disposal of criminal cases and cuts the social costs of trials, thereby creating a win-win situation for all concerned - the accused, prosecution and society as a whole. In fact, Oladele avers that the US criminal justice system 'would simply cease to function without plea bargaining.'

It should be borne in mind that the US is, undoubtedly, the world's most litigious, if not law-abiding society. Accordingly, it is quite understandable if measures are devised aimed at keeping the judicial process in check. One needs only recall here the observation of Alexis de Tocqueville as far back as 1832 to the effect that scarcely does a dispute arise in America which does not ultimately become a legal dispute to be resolved in an adversary system of competing counsel under the watchful eyes of an impartial judge.

Plea bargaining in Nigeria
Nigeria's romance with plea bargaining started with the case of Diepreye Alamieyeseigha, the ex-Governor of Bayelsa State in 2005 who was arraigned on a six-count charge of official corruption and ultimately found guilty and sentenced to two years' imprisonment on each count to run concurrently on account of plea bargaining, having entered a guilty plea and accepted a lighter sentence and confiscation of most of his loot. In the event, he spent only a few days in incarceration, having been in custody for nearly two years before his conviction.

Tafa Balogun, ex-Inspector-General of the Nigeria Police who was accused of stealing over 18 billion naira of Police funds enjoyed the benefit of a plea bargain by being sentenced to only 6 months in jail running from the time of his arrest such that he spent only a brief period on a hospital bed, having had most of his property confiscated. The case of former Governor of Edo State, Lucky Igbinedion, was even more dramatic as he was merely fined 3 million naira as sanction for the humungous sums he was accused of stealing from the coffers of his State, a fine he paid immediately without having to endure the pain and shame of life in jail.

The case of Cecilia Ibru is, no doubt, a cause celebre. After accepting to plead guilty to criminal abuse of office and mismanagement of depositors' funds, acquisition of about 190 landed properties all over the world and unconscionable approval of loans from her bank, Oceanic Bank International to herself, proxies and companies, she was slapped on the wrists with a 6-month jail term on each of counts 14, 17, 23 and 25 as well as s. 15 of the Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Act, 2004, all to run concurrently. It later came to light that she had been enjoying her respite at a well-appointed hospital in Lagos.

The latest in the application of plea bargaining in corruption cases have been in connection with the transnational corporations, Halliburton and Siemens. First, the construction giant, Julius Berger was let off the hook after agreeing to pay the government 4 billion naira for complicity in the Halliburton bribe scandal. Then, news broke to the effect that Siemens had agreed to pay the government 7 billion naira for its malfeasance in connection with the payment of 17.5 million euros to some avaricious and corrupt Nigerian officials in exchange for the nolle prosequi of the Attorney-General of the Federation. Even as this is being written, there is information to the effect that the oil company, Shell is being investigated in connection with bribes allegedly paid to some Nigerian customs officers by the freight company, Panalpina, presumably acting at the behest of the oil company.

The interesting thing about these cases is that the reprieve granted the foreign accomplices of these scams occurred while the investigation and trial of their local confederates had only finally commenced after tremendous prevarication. Today, there is considerable misgiving about the creeping adoption of plea bargaining in Nigeria among legal practitioners and laymen alike. While some laud the encouragement given to plea bargaining by the new Criminal Justice Administration Law of Lagos State, there is a body of opinion that harbours serious reservations concerning the novel idea. While the jury is still out regarding the pros and cons of plea bargaining and its fate, perhaps we can now turn to mapping out the problems and prospects of plea bargaining in our much maligned and longsuffering country.

The future of plea bargaining in Nigeria
We are witnesses to the unfolding of an era where the only thing certain about Nigeria is uncertainty itself! It is for this simple reason that perhaps nothing can be more hazardous than attempting to make forecasts about Nigeria's trajectory. Yet, we seem to be on safe ground where corruption is concerned. Although as a wiseacre once observed, corruption had since become the fundamental objective and directive principle of state policy, there seems to be considerable revulsion among the generality of our people for corruption and those who violate the Eleventh Commandment. Thou shall not be caught!

Any opinion poll conducted among Nigerians would confirm a steep intolerance for attempts to stave the corrupt from their well deserved burning at the stake. The people frequently intone that 'the cankerworm of corruption has eaten deep into the social fabric.' Consequently, it does not require rocket science to surmise that to the overwhelming majority of Nigerians, plea bargaining should not constitute part of the country's criminal justice system.

Regrettably, however, the thinking of the majority seldom coincides with that of their rulers who would always be trusted to be desirous of wanting to protect their own. The expectations of some lawyers that plea bargaining would be cost-effective and help de-clog the judicial system are apt to receive a hard hearing in a society where a common goat or yam thief goes to jail while the white or blue collar criminal is given a mere symbolic sentence, most of which is either served in pleasurable surroundings or offered the opportunity of fines in lieu of incarceration.

Admittedly, popular perceptions and perspectives of justice hardly ever coincide with those of the ruling class, especially in a society comprising the haves and have-nots. Yet, there is a felt need for forging a commonality of moral values in relation to the iniquity of unjust enrichment, double standards of justice as well as selective enforcement of laws and regulations. A society in which majority of the population are not sure of their daily bread would be hard put to justify plea bargaining in cases of the rich, powerful and the famous. It is for this reason that one cannot be overly optimistic about the fortunes of plea bargaining in Nigeria.

While the elite would always hanker after all manner of novelty from abroad, it is in their interest to be sensitive to the needs and aspirations of the preponderant majority of the people if they do not want to become casualties of forces that they neither understand nor are able to control. It bears re-stating that the high level of hunger in the land has set off revolutionary pressures and if the well-to-do continue to enunciate and adopt policies which the vast majority of the people find distasteful and perceive as being inimical to their interests, it would not be too long when the expropriators would themselves be expropriated.

Plea bargaining, especially in the Nigerian context, has increased the level of alienation suffered by the broad masses of the people and except, unless and only to the extent that it is not seen as a shield for the privileged elements in society, it is apt to magnify the frustration and radicalisation of the under-privileged and marginalised. Accordingly, if members of the governing class refuse or fail to correctly sum up the mood of the distraught masses, then the unfolding rebellion of the pauperised citizens would properly sum them up.

• Oyebode, a professor, teaches Law at the University of Lagos.