In the past, lawyers saw plea bargain as soft landing for their clients. The reverse is the case today. They are having a rethink on plea bargain because it has become a tough bargain. This explains why some plea bargain talks involving high profile suspects may have broken down. JOSEPH JIBUEZE reports.
In 2017, the Economic and Financial Crimes Commission (EFCC) filed criminal charges against a former Independent National Electoral Commission (INEC) Administrative Secretary, Mr Christian Nwosu.
He was accused of receiving N30 million bribe from former Petroleum Minister Mrs Diezani Alison-Madueke to rig the 2015 general election.
The EFCC arraigned Nwosu along with Yisa Adedoyin and Tijani Bashir before Justice Mohammed Idris (now of the Court of Appeal).
They allegedly collected N264.88million bribe on March 27, 2015 from the former minister ahead of the election.
After reaching a plea bargain agreement with the EFCC, Nwosu pleaded guilty during his arraignment.
The deal
EFCC said Nwosu refunded N5 million and surrendered title document of properties he acquired for N25 million in Delta State.
The commission accepted the deal because Nwosu surrendered the value of the entire N30 million bribe he received, in addition to agreeing to pay an additional N500,000 fine.
The agreement read in part: “That a fine in the sum of N500,000 is proposed to this court to be imposed on the first defendant upon his conviction on count seven of the amended charge.
“That the first defendant shall within seven days after the payment of the fine imposed by this court enter into a bond with the EFCC never to be involved in economic and financial crimes within and outside the shores of this Federal Republic of Nigeria.”
Plea bargain rejected
On April 27, 2017, Justice Idris rejected the plea bargain agreement. He said it was not commensurate with the punishment for the offence.
The judge said Section 270 (4a) (b) of the Administration of Criminal Justice Act (ACJA) provides that any plea bargain agreement ought to be “within the appropriate range of punishment stipulated for the offence”.
Justice Idris said the prosecution and the defendant ought to propose a punishment within the range of the punishment stipulated in the law. “It is for the above reason that I find the proposal in paragraph four of the plea bargain agreement inadequate,” he said, adding that a “heavier sentence” was necessary.
Unable to pay the N10 million fine required by law, Nwosu changed his plea to not guilty and underwent trial.
He was eventually sentenced to seven years’ imprisonment.
Tough bargains
Plea bargain is an alternative means of disposing a criminal matter other than a trial. It is a negotiated arrangement between the defence and the prosecution endorsed by the court.
Plea bargain may result in the defendant entering a plea of guilty to a lesser offence or receiving a lesser sentence.
The Nwosu’s case showed how much the plea bargain regime has changed. Unlike in the past where such deals drew outrage, the laws have been amended while new reforms have been introduced.
Unlike Nwosu, Adedoyin agreed in his plea bargain with EFCC to forfeit a parcel of land measuring 100ft by 100ft at Taoheed Road, Budo-Osho Village, Ilorin South Local Government Area in Kwara State.
It was agreed “that a fine of N10 million is proposed to this Honourable Court to be imposed on him upon his conviction on count four of the amended charge”.
It was further agreed “that in paying the fine of N10 million, the defendant shall raise a draft of N5 million in addition to the sum of N5 million already recovered from him”.
Justice Idris held: “From the facts, the second defendant benefited in the sum of N28 million, which has been fully recovered by the EFCC. The property of the second defendant in Illorin has been recovered. According to the prosecution, this property is worth more than N25 million.
“And a draft in the sum of N5 million has been recovered and surrendered to the EFCC. In essence, assets and cash in excess of N30 million have been recovered by EFCC. It’s not in contention that the second defendant is both elderly and a first-time offender. Therefore, the court will temper justice with mercy…”
Failed plea bargain talks
Apparently due to the stringent requirements, some high profile plea bargain proposals have failed.
Ex-Minister Akinjide
Oloye Jumoke Akinjide, last February 6, told the Federal High Court in Lagos that she was holding settlement talks with the EFCC.
The EFCC arraigned her along with a former Oyo Central Senatorial District Senator, Ayo Adeseun, and a Peoples’ Democratic Party (PDP) chief, Mrs Olanrewaju Otiti. They were accused of laundering N650 million.
Akinjide’s lawyer Chief Bolaji Ayorinde (SAN) said the N650 million had been returned to the Federal Government. But the EFCC, through its lawyer, Nnaemeka Omenwa, rejected Akinjide’s offer for out-of-court settlement. He said he was instructed to turn down the proposal.
“I have instruction to reject the proposal as it’s not in line with the provisions of the ACJA. Based on that, we’re ready to go on with the trial,” he said. The trial is still ongoing.
Ex-NIMASA chief
A former Nigerian Maritime Administration and Safety Agency (NIMASA) Acting Director-General Haruna Jauro, through his lead counsel, Babajide Koku (SAN), told the Federal High Court in Lagos that his client was exploring a plea bargain with the EFCC. It was after Jauro had pleaded not guilty to N304.1 million fraud.
On the day the case was adjourned for report of settlement, Jauro’s other lawyer, Olalekan Ojo, said his client had withdrawn from the talks.
Ex-Air Chief
A former Chief of Air Staff, Air Marshal Adesola Amosu (rtd), charged with laundering N21 billion, had initially proposed plea bargain talks with the EFCC. A source in the commission said Amosu returned about N2.6 billion to the Federal Government.
Chief Ayorinde, while arguing Amosu’s bail application before Justice Mohammed Idris, said his client had returned “collossal sums”.
The court had once adjourned for parties to conclude plea bargain talks, but it failed. Trial is still ongoing.
A departure from the past
The recent developments with regards to plea bargaining is a clear departure from what obtained in the past.
Igbinedion
In 2008, the EFCC arraigned former Edo State Governor Chief Lucky Igbinedion at the Federal High Court in Enugu for alleged money laundering and embezzlement of N2.9 billion.
In a plea bargain arrangement, the EFCC through its counsel Mr. Rotimi Jacobs (SAN), reduced the 191-count charge to one-count charge, with an agreement that Igbinedion would refund N500 million, three properties and pleaded guilty to the one-count charge.
In line with the plea bargain, on December 18, 2008, Justice Adamu Abdul Kafarati (now Chief Judge of Federal High Court), convicted Igbinedion on the one-count charge.
The judge sentenced Igbinedion to six months’ imprisonment or an option of N3.6 million. The verdict was seen by many as too lenient.
Mrs Ibru
Defunct Oceanic Bank Managing Director Mrs Cecilia Ibru, who was accused of stealing over N190 billion, also entered a plea bargain with the EFCC. She was sentenced on October 8, 2010 after being convicted on 25 counts of fraud. She was ordered to refund N1.29 billion.
After conviction, she served six months in “prison”, part of which she allegedly spent in a highbrow hospital. Critics saw it as a “slap on the wrist”.
Balogun
Former Inspector-General of Police Tafa Balogun also reached a plea bargain and was sentenced to six months imprisonment after forfeiting his assets.
The Plea Bargain manual
The Federal Government, in a bid to ensure that plea bargaining is not abused, sanctioned the production of the Plea Bargain manual, which guides prosecutors and judges.
It was designed by the Presidential Advisory Committee Against Corruption (PACAC), chaired by Prof Itse Sagay (SAN).
Section 2.0 (5) of the Plea Bargain Manual provides that suspects must forfeit everything they stole, including assets they cannot convincingly account for.
The section says: “Consideration of a plea bargain or alternative method of disposal must be premised on the suspect or defendant forfeiting all the proceeds of his crime and/or all property not reasonably accounted for as being acquired by legitimate means.”
The Manual, in sub-section six, also provides that all plea bargains must be “in public interest”.
Other guiding principles provided in the Manual are as follows: “When considering plea bargaining or making decisions to dispose of a case by alternative means, the prosecutor or decision maker must be guided by some core principles: transparency, accountability, integrity, consistency, predictability and credibility.
“The procedures followed should command public and judicial confidence; that any agreement reached is reasonable, fair and just; that there are safeguards to ensure that defendants are not under improper pressure to make admissions; and that there are proper records of discussions that have taken place.”
Need for plea bargaining
Speaking at a media workshop on plea bargaining, organised by the British Council through Rule of Law and Anti-corruption (RoLAC) programme, supported by the European Union, an Assistant Director in the Lagos State Directorate of Public Prosecution (DPP), Mrs Olubunmi Olugasa, said the concept was adopted in Nigeria’s criminal justice system in response to the need to reduce delays and decongest the prisons.
According to her, criminal trials could go on for unduly long periods, so the concept of plea bargaining gradually evolved as a solution to the challenge.
She said other factors that make plea bargaining acceptable included reluctance of crime victims to attend court out of fear, nonchalance or ignorance; absence of witnesses, and incessant transfer of police officers who are an integral part of the criminal justice system.
Others, she said, are congestion of cause lists, which often results in inability of the judges to take some trials, resulting in frustration for witnesses; inadequate funding, which leads to poor facilities for crime investigation, poor incentives to official witnesses, and the antics of unscrupulous defendants who adopt all methods to delay trials.
Mrs Olugasa said inadequate provision for witnesses (especially indigent ones), uncomfortable courtrooms, greedy court staff, among others, all contribute to the use of plea bargaining in disposal of cases.
“The concept is most often used in stealing or fraud related offences and the reason for this is not farfetched. The criminal justice system generally did not provide for a return of stolen property but was perceived as being more interested in punishing the offender.
“Offenders, who were found guilty, were either given custodial sentences, fines or both. The victim, therefore, loses his time and still loses his money (this is tragic especially where the government funds which could have been spent on societal infrastructure are lost).
“The concept of plea bargain thus crept gradually into the adversarial system to solve some of the problems encountered in the administration of criminal justice,” she said.
According to her, plea bargaining was introduced to ensure that stolen funds could be returned rather than having a prolonged trial that could end in an acquittal due to technical or other reasons.
“The idea was to ensure that the society does not lose out totally, the defendant gets punished and in all, it is much of a ‘win-win’ situation. However, the agreed punishment need not be imprisonment.
“It could be something as simple as some form of community sentence which would leave the offender feeling humiliated or at least humble and repentant. This also aids prison decongestion,” Olugasa said.
She emphasised that through plea bargaining, an accused can avoid the time and cost of defending himself at trial, the risk of harsher punishment, and the publicity the trial will involve.
According to Olugasa, the prosecution saves time and expense of a lengthy trial through plea bargaining, while both sides are spared the uncertainty of going to trial, as judgment could be unpredictable.
Besides, the court system is saved the burden of conducting a trial on every crime charged, she added.
“I am of the humble opinion that the concept of plea bargaining is not ‘evil’ but only needs to be tamed.
“Like a wild horse, if properly groomed and guided, it could win races that would otherwise have been impossible to win.
“The Nigerian society is a peculiar one but we are gradually adapting the concept to meet our peculiar needs. I believe the concept is here to stay,” Olugasa said.
Recognised by law
Section 75 of the Administration of Criminal Justice Law of Lagos State 2011 provides that the Attorney-General may “consider and accept a plea bargain from a person charged with any offence where he is of the opinion that the acceptance of such plea bargain is in the public interest, interest of justice and the need to prevent abuse of legal process”.
Section 76 of the ACJL 2011 provides guidelines for plea bargaining.
Section 76 (1) (a) provides for A guilty plea to the offence or a lesser one, while (1)(b) provides for appropriate sentence to be imposed by the court.
Sub-section (2) requires a prosecutor needs to: (a) Consult with the I.P.O and the victim; (b) Give due regard to nature and circumstances of the offence, the defendant (e.g. is he a repeat offender), and the interest of the community.
Section 270 of the Administration of Criminal Justice Act (ACJA) 2015 provides for the plea bargain and its requirements.
The court’s role
Justice Yetunde Adesanya of the Lagos State High Court, speaking at the workshop, said plea bargain could apply to all offences and be initiated by the prosecution or defendant.
According to her, Section 75 of the ACJL 2011 was the first legislation to import and localise plea bargain into Nigeria’s criminal jurisprudence.
Justice Adesanya said the courts must ensure that both public interest and the course of justice are served in the process leading to plea bargain agreement.
She added that service to public interest and course of justice should be reflected in plea bargain terms.
These, she said, could be achieved through the plea bargain protocol, plea bargain agreement checklist, considerations for authenticating and approving the agreement, application of the sentencing guidelines and the Practice Direction.
“After arraignment, the court shall inform parties and counsel, in general terms, of the plea bargain provisions as contained in the law.
“The presiding judge or magistrate shall adjourn the case for not more than 30 days to enable the parties to consider same and report their decision with respect to the plea bargain option,” she said.
Adesanya said the rationale for informing parties immediately after arraignment is to draw the parties’ attention at the earliest possible opportunity to the options available to enable them opt for trial or plea bargain.
The plea bargain agreement, she said, should be entered into with due regards to the nature and circumstances relating to the offence, the defendant and the interest of the community.
“Where a plea bargain agreement is reached by the prosecution and defence, the prosecution would usually file an amended information or charge; the plea of the defendant is taken and, typically, he would plead guilty to the amended charge.
“The prosecution shall inform the court that parties have reached an agreement; the court will then confirm from the defendant.
“The court will inquire if the defendant admits the allegations to which he had pleaded guilty and whether he entered into the agreement voluntarily and without undue influence,” she said.
Justice Adesanya said a judge or magistrate could impose the sentence agreed in the plea bargain, impose a lesser sentence, or impose an appropriate heavier sentence.
In reaching a plea bargain agreement, the judge said the prosecution should consider the defendant’s willingness to cooperate in the investigation, his criminal history, his level of remorse and willingness to assume responsibility for his actions.
It must also consider the likelihood of obtaining a conviction at trial and probable effect on witnesses, the need to avoid delays, the expense of trial and appeal, and the defendant’s willingness to make restitution or pay compensation where appropriate, among others.
Other plea bargain considerations
Justice Adesanya said the level of culpability, severity of offence committed, level of harm, whether the crime involves breach of trust or abuse of power, the defendant’s role (instigator or ring leader) and timing of plea (before or during trial) are among factors to be considered in agreeing a plea bargain.
In all cases, she said it must be ensured that justice is served.
“The plea bargain judgment must serve the same purpose as a judgment delivered after a full trial, i.e, deterrence from crime, not to be a pat on the back for the defendant. It must be ensured that the proceeds or profit of crime is not kept by the defendant,” she said.
Highlighting the advantages of plea bargaining, Justice Adesanya said it not only saves time and cost, but eliminates the difficulty of proving certain complex cases, such as economic crimes committed across jurisdictions.
“The advantages of plea bargain far outweigh the disadvantages or possible abuse. There are enough safeguards in the law to protect public interest, the interest of the victim of the offence and ensure that the course of justice is served,” she said.
The judge called for more use of plea bargain option, urging lawyers to inform their clients about it timeously.
Lagos State’s Guidelines
A Senior Lecturer in the Faculty of Law, University of Lagos (UNILAG), Dr Akeem Bello, who was also a facilitator at the workshop, highlighted key provisions of the Lagos State Judiciary (Sentencing Guidelines) Practice Directions 2018.
He said the Directions allows a discount of not less than one third of the applicable punishment prescribed by law where the defendant pleads guilty.
“A defendant, who voluntarily pleads guilty is given discount of not more than one third of the punishment,
“The process outlined in the Directions is that the offences are classified according to groups and similar rules apply.
“Where a defendant pleads guilty to a plea agreement, the relevant provisions of the Directions apply in determining the punishment that the court will impose,” Bello said.
The university don said after a plea bargain, the court is expected to deliver a reasoned judgment and sentence, setting out the justification for the sentence imposed.
The judge is also expected to demonstrate how the Directions were used.
In the Directions, sentencing is based on level of harm (serious harm, significant harm and limited harm).
