"x x x.
INTRODUCTION
Due to the overburdened criminal justice system, the vast majority of criminal cases are settled through a process known as plea bargaining.
In a plea bargain deal, both sides gain something from the arrangement. The prosecution gains a conviction without the time and expense of a trial, while the defendant might get a reduced sentence or have some of the charges against him dropped. In some cases, for example, the prosecution will offer a plea deal so that the victim does not have to go through the drama and stress of testifying at a trial.[1]
This paper is going to start by first defining what plea bargaining is. After defining it, it will give a brief introduction as to the history and nature of plea bargaining. Then it will discuss extensively on its application in Nigeria and conclude on whether or not plea bargaining has been abused in Nigeria’s Criminal Justice System.
DEFINITION OF PLEA BARGAINING
To a layman on the street, plea bargaining in the Nigerian context is a system in which room is provided for unfettered looting of public treasury at all levels of governance in our country. This is done in such a way that billions of naira is stolen, and some paltry millions are returned to the coffers of the government, while a large chunk of the looted public funds at the end of the day is left for the looter and his/her unborn generations.[2]
But to an Advocate of Legal Practice, plea bargaining consists of the exchange of official concessions for a defendant’s act of self-conviction. These concessions may relate to the sentence imposed by the Court or recommended by the prosecution, the offence charged, or a variety of other circumstances; they may be explicit or implicit; and they may proceed from any of a number of officials.[3]The benefit offered by the defendant, however is always the same: entry of[4] a plea of guilty. This definition excludes unilateral exercises of prosecutorial or judicial discretion, such as an unqualified dismissal or reduction of charges. It also excludes the exchange of official concessions for actions other than entry of a guilty plea, such as offering restitution to the victim of a crime, giving information or testimony concerning other alleged offenders, or resigning from public office following allegations of misconduct.[5]
Black's Law Dictionary defines plea bargain as follows:
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[6]
HISTORY OF PLEA BARGAINING
The plea bargain was a prosecutorial tool used only episodically before the 19th century. ''In America,'' Fisher says, ''it can be traced almost to the very emergence of public prosecution -- and public prosecution, although not exclusive to the United States (US), developed earlier and more broadly in the US than most places.''
Below is a summary of the history of plea bargain from the 16th century to the 19th century
1633: Galileo gets house arrest from the Inquisition in exchange for his reciting penitential psalms weekly and recanting Copernican heresies.
1931: Al Capone brags about his light sentence for pleading guilty to tax evasion and Prohibition violations. The judge then declares that he isn't bound by the bargain, and Capone does seven and a half years in Alcatraz.
1969: To avoid execution, James Earl Ray pleads guilty to assassinating Martin Luther King Jr. and gets 99 years.
1973: Spiro Agnew resigns the vice presidency and pleads no contest to the charge of failing to report income; he gets three years' probation and a $10,000 fine (roughly one-third of the amount at issue).
1990: Facing serious federal charges of insider trading, Michael Milken pleads to lesser charges of securities fraud; soon after, his 10-year sentence is reduced to 2 years.[7]
THE NATURE OF PLEA BARGAINING
Table 1: Source : SPIRITGLOVE: spiritglove.hubpages.com
There are two basic types of plea bargaining: charge bargain and sentence bargain. In the case of charge bargain, it is arranged in a way that the prosecutor agrees to drop some of the counts or reduce the charge to a less serious offence in exchange for a plea of either guilty or no contest from the defendant.
In the case of sentence bargain, the prosecutor agrees to recommend a lighter sentence in exchange for a plea of either guilty or no contest from the defendant.[8]
APPLICATION OF PLEA BARGAINING IN NIGERIA
The practice of plea bargain is obviously very embryonic in Nigeria. It was never part of any Nigerian law until 2002 when the Economic and Financial Crimes Commission (the Commission) was established. Looking at a plethora of statutory provisions in Nigeria, this paper has no hesitation in asserting that the first federal enactment to experiment with a form of plea bargaining is the Economic and Financial Crimes Commission (Establishment) Act (EFCC Act).[9]
The provision of Section 14 (2) of the EFCC Act indicates that when a defendant agrees to give up money stolen by him, the Commission may compound any offence for which such a person is charged under the Act. This provision has no universal application to all criminal trials in Nigeria as negotiations there under are expressly limited to offences punishable under the EFCC Act.
Sections 14-18 of the EFCC Act provides for crimes for which the Commission can exercise jurisdiction. These includes: offences relating to financial malpractices, offences in relation to terrorism, offences relating to public officers retention of proceeds of criminal conduct and offences in relation to economic and financial crimes.
The statutory blessing given to plea bargaining in Nigeria is not limited to the EFCC Act. In fact, the most commendable step in giving statutory back up to plea bargain in Nigeria is the enactment of the Administration of Criminal Justice Law 2011, Laws of Lagos State, which institutionalized plea bargain in Lagos State. For the purpose of proper understanding and appreciation of the position in Lagos, this paper would reproduce the relevant sections of the aforementioned law:
76(1) The prosecutor and a defendant or his legal practitioner may before the plea to the charge, enter into an agreement in respect of:
(a) a plea of guilty by the defendant to the offence charged or a lesser offence of which he may be convicted on the charge, and
(b) an appropriate sentence to be imposed by the Court if the defendant is convicted of the offence to which he intends to plead guilty.
(2) The prosecutor may only enter into an agreement contemplated in subsection
(1) of this Section: (a) after consultation with the Police Officer responsible for the investigation of the case and if reasonably feasible, the victim, and
(b) with due regard to the nature of and circumstances relating to the offence, the defendant and the interest of the community.
(3) The prosecutor, if reasonably feasible shall afford the complainant or his representative the opportunity to make representations to the prosecutor regarding
(a) the contents of the agreement; and
(b) the inclusion in the agreement of a compensation or restitution order.
(4) An agreement between the parties contemplated in subsection (1) shall be reduced to writing and shall:
(a) state that, before conclusion of the agreement, the defendant has been informed (i) that he has a right to remain silent; (ii) of the consequences of not remaining silent; (iii) that he is not obliged to make any confession or admission that could be used in evidence against him.
(b) state fully the terms of the agreement and any admissions made and,
(c) be signed by the prosecutor, the defendant, the legal practitioner and the interpreter as the case may be.
(5) The Presiding Judge, or Magistrate before whom criminal proceedings are pending shall not participate in the discussions contemplated in subsection (1). Provided that he may be approached by Counsel regarding the contents of the discussions and he may inform them in general terms of the possible advantages of discussions, possible sentencing options or the acceptability of a proposed agreement.
(6) Where a plea agreement is reached by the prosecution and defence, the prosecutor shall inform the court that the parties have reached an agreement and the Presiding Judge or Magistrate shall then inquire from the defendant to confirm the correctness of the agreement.
(7) The Presiding Judge or Magistrate shall ascertain whether the defendant admits the allegations in the charge to which he has pleaded guilty and whether he entered into the agreement voluntarily and without undue influence and may:
(a) if satisfied that the defendant is guilty of the offence to which he has pleaded guilty, convict the defendant on his plea of guilty to that offence, or;
(b) if he is for any reason of the opinion that the defendant cannot be convicted of the offence in respect of which the agreement was reached and to which the defendant has pleaded guilty or that the agreement is in conflict with the defendant’s rights referred to in subsection (4) of this Section, he shall record a plea of not guilty in respect of such charge and order that the trial proceed.
(8) Where a defendant has been convicted in terms of subsection (7) (a), the Presiding Judge or Magistrate shall consider the sentence agreed upon in the agreement and if he is:
(a) satisfied that such sentence is an appropriate sentence impose the sentence, or:
(b) of the view that he would have imposed a lesser sentence than the sentence agreed upon in the agreement impose the lesser sentence; or
(c) of the view that the offence requires a heavier sentence than the sentence agreed upon in the agreement, he shall inform the defendant of such heavier sentence he considers to be appropriate.
(9) Where the defendant has been informed of the heavier sentence as contemplated in subsection (8) above, the defendant may:
(a) abide by his plea of guilty as agreed upon in the agreement and agree that, subject to the defendant’s right to lead evidence and to present argument relevant to sentencing, the Presiding Judge, or Magistrate proceed with the sentencing; or
(b) withdraw from his plea agreement, in which event the trial shall proceed de novo before another Presiding Judge, or Magistrate, as the case maybe.
(10) Where a trial proceeds as contemplated under subsection (9) (a) or de novo before another Presiding Judge, or Magistrate as contemplated in subsection (9) (b):
(a) no reference shall be made to the agreement;
(b) no admissions contained therein or statements relating thereto shall be admissible against the defendant; and
(c) the prosecutor and the defendant may not enter into a similar plea and sentence agreement.
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