No to plea bargain

THE Attorney General of the Federation (AGF) and Minister of Justice,  Abubakar Malami, (SAN) was simply reiterating the true and original position of the nation’s laws, when he reportedly made it clear that plea bargain option is not at all available to persons implicated in cases of financial crimes. Said he: ‘It has never been the policy of the government to make compromises on terrorism and financial crimes; [and plea bargain] will never be tolerated by the Office of the AGF.’ This newspaper fully supports this position.

Plea bargain is a settlement negotiated between a prosecutor and a criminal defendant and accepted by the court, whereby the defendant pleads guilty to a lesser offence or to one of the multiple charges in exchange for some concession, such as a more lenient sentence or even a dismissal of the charge. It is used in other jurisdictions, especially the United States where it is well and widely applied.  There is no doubt that, plea bargain, applied with the purest motive, offers advantages to all sides in a case. It saves the prosecution and the state the time, money etc. of long trial; it saves an already over-burdened court from dispensing yet another; it saves the accused the cost of trial, a possible harsher punishment and the attendant reputation damage. Alas, it cannot be confidently argued that this country is yet a clime where purity of motive informs and drives systems, processes and procedures. It is no wonder then that the instances of negotiated settlement between the prosecution and the accused hardly impress the discerning public.

However, the implementation of  the concept of plea bargain in  Nigeria conveys the impression that persons  established  to have committed wanton acts of  thievery receive light punishment  that  pale into  ridiculous insignificance in comparison to the magnitude of  their crimes. It is more like a soft-landing provided for well connected rogues and /or highly placed public office holders who negotiate their freedom in exchange for dropping a fraction of their loot.

Since the Tafa Balogun case in 2005, this method of settlement has been repeatedly employed by the Economic and Financial Crimes Commission (EFCC) to dispose of high profile cases, including former Edo State governor Lucky Igbinedion in 2008, and former Bayelsa State Governor DSP Alamieyeseigha. The EFCC relied on Section 14(2) of the EFCC Act, 2004 to apply this instrument. The section states that ‘the Commission may compound any offence punishable under the Act by accepting such sums of money as it thinks fit exceeding the maximum amount to which that person would have been liable if that person had been convicted of that offence’.

The morality, as well as the fairness at all to the hapless victims (Nigerians and the Nigerian state) of gargantuan financial fraud is very much in doubt. The question cannot but arise: should persons who deprive the citizenry of the benefits of the immense commonwealth in this land not be visited with condign punishment for their heinous act of criminality?

But aside this, the legality of plea bargain in Nigeria has been questioned by many informed opinions  including no less a person than former Chief Justice of Nigeria, Hon. Justice Dahiru Musdapher.  He said in November 2011 that ‘plea bargain is a novel concept of dubious origin. It has no place in our law – substantive or procedural’ and he declared that ‘it should never again be mentioned in our jurisprudence’.  It is noteworthy though that plea bargain is provided for in the statutes book of Lagos State. The Administration of Criminal Justice Law (ACJL), 2007 empowers the state attorney-general to consider and accept plea bargain in the interest of the public, of justice, and to prevent the abuse of legal process. However, the point must be made that this law lacks constitutional backing.  Needless to say, according to Section 1(3) of the 1999 Constitution (as amended), any law enacted by any authority and which is inconsistent with the provisions of the extant federal constitution is null and void to the extent of the inconsistency.

Plea bargain may be a useful method to dispose of criminal cases quickly without compromising justice. But it cannot serve the end of justice if it is employed as a tool to make criminals negotiate to live comfortably after their crime; that would mean that financial crime pays on the long run if it is heinous enough.  

Of course, as the Nigerian variant of democracy matures, and public –as well as private sector officials- imbibe self-discipline, there will, in time, be cause to provide for plea bargain in the justice system.  For now, given the uniquely grand scale of stealing by public officials in this country, as well as the way and manner that the EFCC has implemented the concept to date, the time is definitely not ripe for plea bargain in the nation’s statute book. Every crime deserves punishment of a corresponding magnitude.