Nigeria: The Concept Of Plea Bargaining In Nigeria

Last Updated: 9 November 2018
Article by Bayo Adetomiwa

The concept of plea bargaining is one of the most controversial tools used in the disposition of criminal trials. It is deeply entrenched in the criminal justice system of the United States of America. According to the Columbia Law Review, "one statistic dominates any realistic discussion of criminal justice in America today: roughly ninety percent of the criminal defendants convicted in state and federal courts plead guilty rather than exercise their right to stand trial before a court or jury.' Behind this statistic lies the practice of plea-bargaining, in which prosecutors and trial judges offer defendants concessions in exchange for their pleas."1

It is simply a negotiated agreement between a prosecutor and a defendant (commonly referred to as an accused in a larger part of Nigeria except Lagos), 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 other charges.2 According to J.A. Agaba in his book, Practical Approach to Criminal Litigation in Nigeria (Pre-Trial & Trial Proceedings) @ 589 to 590, to have a plea bargain, there must be:

  1. A prosecutor and an accused person/defendant;
  2. A negotiation between the prosecutor and the accused person/defendant;
  3. A negotiation which must have ended in an agreement with concessions and compromises from the prosecutor and the accused/defendant;
  4. A plea, that is, a plea of guilty to the charge or to a lesser charge;
  5. The involvement of the court; and
  6. An acceptance of the plea by the court.

The plea bargain practice has been in existence in the United States for several decades now, predominantly due to the kind of criminal system practiced, which is inquisitorial in nature. This makes it easier for the concept to be practised with ease as opposed to countries that practice the adversarial or accusatorial system wherein the judge occupies a neutral position as an unbiased umpire and in which case, the prosecution has the burden of proving the offence alleged usually beyond reasonable doubt.

This article now seeks to attempt an appraisal of the concept of plea bargain, its constitutionality and applicability in Nigeria having regards to the extant laws.

Background

It is no news that since the emergence of the plea bargain theory, its acceptance as a part of criminal justice systems over the world has continued to rise. For instance, the concept is now applicable in England, Wales, India, and some other countries of the world. Perhaps, the closest attempt at introducing it into the Nigerian criminal justice system was the introduction of the Administration of Criminal Justice Law (ACJL 2007) of Lagos State.3 This, of course, was possible since under the Nigerian legislative framework it is not the exclusive preserve of the centre to enact laws to regulate the criminal justice system. Similarly, the Economic and Financial Crimes Commission Act 2004 (EFCC Act) also made an audacious attempt at introducing the concept of plea bargain into Nigerian system. Section 14(2) of the Act provides as follows: "subject to the provisions of section 174 of the Constitution of the Federal Republic of Nigeria, 1999 (which relates to the power of the Attorney-General to institute, continue, takeover or discontinue any criminal proceedings against any person in any court of law), the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, exceeding the amount to which that person would have been liable if he had been convicted of that offence."

However, while this provision of the EFCC Act subjects the plea bargaining to the provisions of Section 174 of the Constitution. The ACJL does not subject the applicability of the plea bargain to any law, not even the Constitution. Section 75 of the ACJL provides that: "Notwithstanding anything in this Law or any other law, the Attorney-General of the State shall have power to consider and accept a plea bargain from a person charged with any offence where the Attorney-General is of the view that the acceptance of such plea bargain is in the public interest, the interest of justice and the need to prevent abuse of legal process."

A significant proportion of people in Nigeria are of the view that the country is not yet ripe to practice the plea bargain principle. Proponents of this position are of the view that the Nigerian nation is replete with corruption and that we are still in a phase of a maturing democracy, which should not introduce practices that may likely endanger the growth of our young democratic system. The proponents of this thinking also posits that the use of plea bargain eradicates the punitive aspect of the criminal justice system that plays a vital role in serving as a deterrent to other criminals. Others feel that since the plea bargain practice is not recognised under the 1999 Constitution of the Federal Republic of Nigeria and other Acts of the National Assembly,4 it is an alien practice.

There are those who see this as another avenue to widen the already expansive powers of the Attorney-General to discontinue criminal proceedings in court since the Attorney-General stands at the apex in the institution, takeover, and discontinuance of criminal proceedings as empowered by the Constitution. Some are of the rather aggressive posture that the plea bargain principle should not be allowed to stand in the face of it not been recognised under the highest law of the land.

As we shall see in the course of this piece, the plea bargain principle is clearly at variance with the Constitution and some other Acts of the National Assembly. However, will that justify banishing the theory perpetually into Hades?

In other words, will this principle have any significant or positive impact on our criminal justice system given its advantages? Do the demerits of applicability of the plea bargain principle in Nigeria outweigh the merits? The answers to these posers will largely depend on the disposition of the courts on this issue, especially that of the Supreme Court of Nigeria whose pronouncements have overwhelming applicability throughout the federal republic of Nigeria, though we are yet to have one.

The Applicability of Plea Bargaining

In Nigeria, under the Constitution, an accused person is presumed innocent until proven guilty.5 This presumption of innocence can only be rebutted by the prosecution and this is achieved when the prosecution is able to satisfactorily discharge the legal burden on it to prove its case against the accused person beyond reasonable doubt by virtue of Section 135(1),(2) and (3) of the Evidence Act, 2011. Section 1(1) of the Constitution declares its supremacy over all authorities and persons throughout the Federal Republic of Nigeria. Equally, Section 1(3) provides that: "If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void."

The plea bargain is a fundamental concept, which any state which desires to make it a part of its criminal justice system should incorporate into its constitution to give it the necessary force. In the absence of any clear provision under the Constitution of Nigeria, the applicability of plea bargain is certainly contrary to the provisions of the Constitution.

The Criminal Procedure Code (CPC) and the Criminal Procedure Act (CPA) applicable in the Northern and Southern parts of Nigeria respectively (with the exception of Lagos State by reason of its enacted ACJL), regulate the conduct of trials and has a lot of provisions governing criminal trials and in all these statutes, there is no indication of the existence or applicability of the plea bargain principle.

There are very limited Nigerian authorities on the applicability of plea bargain in Nigeria even though the cases in which the concept has been explored continues to be on the rise.

While plea bargain has been practised with ease in the United States, its applicability in Nigeria cannot be hitch free. This is because of the nature of the Nigerian criminal justice system which is adversarial and which places a judge as an unbiased umpire who sits in the temple of justice to evaluate the evidence presented before it by the parties.

In LEADERS & CO. LTD V. BAMAIYI (2010) 18 N.W.L.R. (Pt. 1225) 329, 340 @ PARAS A-B Fabiyi, J.S.C. held that a judge is an adjudicator; not an investigator.

Except in exceptional cases where an accused person voluntarily confesses to the commission of an offence, the prosecution at all times has a duty to prove the guilt of the accused beyond reasonable doubt before it can secure a conviction. Most often than not, the issue of voluntariness of the confessional statement, come to play at trial and even on appeals to the appeal courts. As much as confessional statement raises the issue of voluntariness, the practice of plea bargain in Nigeria is also likely to raise issues of voluntariness of the agreement.

Another very fundamental problem the plea bargain practice is likely to bring to the Nigerian criminal justice system is the tendency for abuse of the process by the authorities especially the Attorney-General who already wields enormous powers in criminal administration. This is because the form of the plea bargain in Nigeria as modelled by Lagos State vests the power to accept plea bargain in the Attorney-General. Already, there are several calls for the powers of the Attorney-General to be reduced possibly by the splitting of the office and functions into two, viz - the Attorney-General (being an officer of the state) on one hand, and the Minister/Commissioner for justice (being an appointee of the executive) on the other. This is aimed at reducing the influence and interference by the executive with the discharge of the functions of the office of the Attorney-General.

The Plea Bargain Practise in Nigeria - To be or not to be

The plea bargain principle no doubt is becoming one of the most useful means of quick disposal of criminal trials the world over. Its applicability in Nigeria will certainly have positive impacts amidst the criticisms. In FEDERAL REPUBLIC OF NIGERIA V. LUCKY IGBINEDION (2014) LPELR – 22760 (CA) The Court of Appeal per Ogunwumiju, J.C.A. stated the advantages of plea bargain @ pages 75-76 as follows: "The advantages of plea bargain include: 

  1. Accused can avoid the time and cost of defending himself at trial, the risk of harsher punishment, and the publicity the trial will involve.
  2. The prosecution saves time and expense of a lengthy trial.
  3. Both sides are spared the uncertainty of going to trial.
  4. The court system is saved the burden of conducting a trial on every crime charged."

I shall briefly consider the advantages of plea bargain as identified by Ogunwumiju, J.C.A. above.

Cost of trial for both the Accused and the Prosecution

One of the advantages of plea bargain practice is that it saves both parties of the cost of prosecuting and defending the case in court. This is regarded as one of the fundamental advantages of Alternative Dispute Resolution in civil actions over litigation.

Length of trial

Generally, trials in Nigeria usually take a considerable length of time. More so, when the rulings or judgments of the trial courts are appealed against, it takes a far longer time to. For instance, where the outcome of a matter is appealed against up to the Supreme Court, it could last as long as 10 years or more from the trial court to the ultimate verdict by the apex court. during this period, there is every likelihood that the Accused will be remanded in prison custody which would have been avoided in a situation where a plea bargain arrangement is made.

Uncertainty of trial

Both the prosecutor and the defence are spared of the uncertainty that is associated with trials. The plea bargain practice also has the advantage of avoiding a situation where an innocent man is convicted on a crime he may not have committed since the outcome of a case is uncertain as the judge has the final powers to deliver a verdict on the evidence presented before it. It is not therefore outside the realm of possibilities that an innocent person is convicted of a crime for any reason, maybe due to the ineptitude of its counsel or the failure of the judge to have a full and perfect grasp of the case before it.

Lessened burden of conducting trials on every crime charged

Where the state decides to prosecute every offence as alleged, the courts will be greatly overburdened. This would greatly hamper the efficiency of the judiciary in the discharge of its constitutional role.

Despite these obvious merits of the plea bargain, it is not devoid of its shortcomings. A very fundamental defect of the process is that though the state has the powers to prosecute, where there is a crime against a person (the victim), such a victim may not feel that justice has been done in his case where the court accepts the plea bargain of the defendant. Also, it is increasingly the norm in Nigeria that only the rich can assess justice. This is because they can buy their way through and afford any penalty levied against them unlike the poor who are left to their fate to languish in prison.

Conclusion

In conclusion, while the plea bargain practice will do a lot good to our Nigerian criminal justice system, it should be incorporated with the necessary rules that would prevent abuse of the process. It also needs to be incorporated into the Nigerian Constitution to have more force.

Footnotes

1 Journal of Chicago Law School, Vol. 79 January 1979 No. 1 on Plea Bargaining and its History by Albert Alschuler

2 Practice and Procedure of Criminal Litigation in Nigeria by Y.D.U. Hambali @ 534

3 The ACJL 2007 has been has been repealed by the ACJL 2011

4 Peter Ocheme - The Lagos Administration of Criminal Justice Law (ACJL) 2007: Legislative Rascality Or A Legal Menu For Access To Justice?

5 Section 36(5) of the Constitution

Tuesday 14th October

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