AN APPRAISAL OF THE APPLICATION OF PLEA BARGAINING PROCEDURE IN NIGERIAN CRIMINAL JUSTICE SYSTEM
CHAPTER ONE GENERAL INTRODUCTION 1.1 BACKGROUND TO THE RESEARCH There are certain key decisions that people who are being prosecuted have to make: one of the most important decisions is to plead guilty. It is „plea bargain‟ when the accused pleads guilty in return for an offer by the prosecution or when the sitting judge has informally made it known that he will minimize the sentence if the accused pleads guilty with plea bargaining the process shifts the focus from the judge leaving the negotiation to prosecutor and the accused or the accused‟s counsel. Practically, it may prevent a public finding of the facts and substitute it with a behind-the scenes cut short. In this case a deal is usually made between the prosecutor and the accused, whereby the prosecution may offer to drop more serious charge(s) against the accused in exchange for guilty plea of a lesser charge(s) and the prosecution and the accused come to an agreement to solve the case. At the resolve of the case both parties, the prosecutor and the accused tend to achieve one thing, saving of time and reduction of costs.
There is need to begin and conclude trials expeditiously, decongest the prisons, reduce the time and financial cost of criminal investigations and trials still
maintain and observe fundamental human rights principle without much ado; laying credence to the above, the concept of plea bargaining apparently seems to be one of the procedures that would assist the Nigerian criminal justice system to achieve these laudable objectives. However, the concept “plea Bargaining” has generated a lot of arguments amongst members of the bench, bar, law enforcements agencies, the academic community and the public at large in Nigeria and it is this event of argument at various levels that generated the interest of the researcher to delve into this controversial area of study so as to make an attempt in ascertaining the proper position of the law.
These arguments today arose from the seemingly increasing use of plea bargaining by the Economic and Financial Crimes Commission of Nigeria (EFCC) which the enabling Economic and Financial Crimes Commission Act1 Controversially Supports.
Many people have argued in Nigeria that the practice of plea bargaining by the Economic and Financial Crimes Commission allows offenders to receive insignificant punishment that will undermine deterrent aspect of criminal sanctions. Some also believe that offenders can evade the law, provided they are
1 Cap E1, laws of the Federation of Nigeria, 2014
willing to bargain. Equally, some have argued that the practice circumvent the rigorous standards of “proof beyond reasonable doubt” imposed on the prosecution during criminal trials. Some people also believe that the application of plea bargaining comprises the fundamental principles enshrined in the constitution of the Federal Republic of Nigeria 19992. Against the above backdrops, therefore, the objectives of this research therefore is to identify the mode of practices of plea bargain in Nigeria and the inadequacies in the subject matter accounting for the controversy and to finally proffer measures needed for the pro activeness of the law where necessary so as to meet up with the unchallenged practice in other jurisdictions. 1.2 STATEMENT OF THE PROBLEM The following problems are identified in the research:
i. The legal justification of section 14 (2) of the economic and Financial Crimes Act, Cap El, Laws of the Federation of Nigeria, 2004 which the economic and Financial Crimes commission (hereinafter referred to as the commission) uses as a framework for their use of plea bargaining in the prosecution of their landmark cases of corruption and financial crimes
2 The Constitution of Federal Republic of Nigeria 1999
being that there is no express provision for a plea bargaining in any of the Federal Criminal Legislations in Nigeria.
1.3 AIM AND OBJECTIVES OF THE RESEARCH This research aims at ascertaining the applicability of the concept of plea bargain in the penal system, through and examination of the legal and institutional frameworks on the subject matter in Nigeria. In view of this therefore, the objectives of this paper are as follows.
i. An examination of the practice and mode of plea bargain in Nigeria vis-à-vis the adequacy or otherwise the inadequacies of the laws regulating plea bargain in Nigeria.
ii. An examination of the factors militating against the practice of plea bargain in Nigeria
iii. Finally, to profer measures for addressing the problems identified in the course of the study so as to have a smooth operation of plea bargain in Nigeria like other jurisdictions.
1.4 SIGNIFICANCE OF THE RESEARCH
This research will be of immense help to students, academics, policy makers, the bench and particularly litigation lawyers to ascertain the proper law on the subject matter. It will also be of great importance to graft agencies in Nigeria particularly the economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practice and other Related Offences Commission (ICPC) and the general public by giving them certainty on the mode of application and practice of plea bargain as the relevant institution on the subject matter in Nigeria. 1.5 JUSTIFICATION FOR THE RESEARCH Justification for this research is to make an attempt to put an end to the controversy surrounding the uncertain of the operation of plea bargain in Nigeria amongst the stakeholders ranging from the students, legal practitioner legal scholars, EFCC, ICPC and relevant stakeholders. 1.6 SCOPE OF THE RESEARCH
The area of coverage for this research as earlier stated is to appraise the legality of the practice of plea bargain in the criminal procedures in criminal cases in Nigeria. Though, the research will be majorly in the Nigerian context, but a
short reference may also be made to other jurisdictions where plea bargain holds sway. 1.7 RESEARCH METHODOLOGY The writer shall mainly adopt the doctrinal method of research by using the primary sources which shall include statutes and judicial authorities in the form of decided cases. The writer shall also make use of secondary sources of materials which include textbooks, journals, encyclopedia, workshop material, internet materials. 1.8 LITERATURE REVIEW Although, there are different definitions given to the, phenomenon called “plea bargain, this is so because legal practitioners and scholars are not commonly in terms on the exact meaning of plea bargaining. The definition of plea bargaining seems to vary depending on the jurisdiction and on the context of its use. Notable amongst the various definitions is that one reads thus:
The process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to courts approval. It usually involves the defendants pleading guilty to a lesser offence or to only one or some of the courts of the multi-count
indictment in return for a lighter sentenced than that possible for the graver change3. The writer sees the inadequacies in this definition being that the first of part of the definition suggests that plea bargains are “mutually satisfactory dispositions”. While it is very true that the bargain struck must be agreed upon by both parties to the bargain and guilty plea made intelligently and voluntarily, this does not actually guarantees a mutually satisfactory result. This is more so as the prosecutor may be forced to present a highly favourable offer to a defendant as a result of errors in procedure that may cause evidentiary problems at trial. On the other hand, the strength of the prosecutors that bargain power they present the defendant with almost equally unfavorable choices.
Nchi, S.1.4 defines plea bargaining as “an informal arrangement whereby the accused person agrees to plead guilty to one or some charges in return for the prosecution agreeing to drop the charges or a summary trial”.
The above definition only shows that it is the accused that agrees to one or some charges in return if the prosecution dropping other charges. The writer is of the view that the definition should have added “………. Prosecution agreeing to
3 Alubo, A.O “Plea Bargaining: History and Origin” in Plea Bargaining in Nigeria: Law and Practice (Eds) Azinge, E and Ani, L, NIALS, 2012, Abuja 4 Nchi, S.1.: The Nigerian Law Dictionary, 2nd (Ed) Jos, Green World Pub Coy Ltd 2000 Page 203