THE ROMANCE BETWEEN EFCC AND PLEA BARGAIN : THE LEGAL ECHOES

THE ROMANCE BETWEEN EFCC AND PLEA BARGAIN: THE LEGAL ECHOES

By~Meti M. Ukpeh, Esq.

(Ama-mme Anana-owo)

ABSTRACT

In soothe, our own world( Nigeria) ravaged, plagued and threatened by social vices amidst all the regulatory paraphernalia, yet financial vices keep raising head, rising like a phoenix and plunging the economy and our colossal existence to near-uncertainties, a living hell with men in high and low places having an insatiable quest to monopolize this legal tender not minding creating a generational gab between this old generation and the ones to come--dashing the hopes of our children yet unborn and eventual “Armageddon” with our own future generations. The resort by the Economic and Financial Crimes Commission (EFCC), assumedly the number one (1) anti-graft agency, to plea bargaining in the prosecution of economic and financial crimes appears a lovey-dovey and has attracted public criticism and scathing remarks. Some of the cases concluded by plea bargain involved former public office holders who were convicted of converting several Billions of Naira and recently, youngsters. The sentences imposed by the courts after the conclusion of plea bargain agreements are generally perceived as grossly inadequate and as mockery of justice. This paper will pin-point and x-ray various issues that pop up and recommendations thereof.

INTRODUCTION

It is pertinent to note that, be that as it may, legal arguments on plea bargaining in Nigeria, the claim that plea bargain is a vaccination against punishment, a legal framework (echoes) to set out the ground rules and define the role of the parties to ensure that it is conducted fairly and in the public interest will be unveiled as we proceed.

Plea bargaining generally is 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, usually a more lenient sentence or dismissal or other charges. See: Black’s Law Dictionary (9th Edn, 2009) at 1270

There are generally two basic types of plea bargains. These are charge bargains and sentence bargains. In a charge bargain, the defendant agrees to plead guilty to a specific charge and the prosecutor agrees to dismiss any other charges or to prosecute for a lesser offence.

In sentence bargaining, the defendant wants the prosecutor to recommend a more lenient sentence than the normal sentence for the crime or to agree not to oppose the recommendation made by the defence. The end result in both types of plea bargains is that the defendant is likely to get a lighter punishment in consideration for pleading guilty.

Legal Arguments on Plea Bargaining In Nigeria:

A number of legal issues have been raised arising from the use of plea bargaining in Nigeria: Is plea bargaining legal or proprietary? Is plea bargaining conceivable under existing procedural laws governing administration of criminal justice in Nigeria. Are there any justifications for plea bargaining in Nigeria? Are the punishments imposed in plea bargained cases adequate or is plea bargaining a vaccination against punishment? This part examines the aforementioned issues.

legality of plea bargains:

The issue of the legality or proprietary of plea bargain is perhaps the most serious objection against it. There is no express or implied constitutional prohibition of plea bargain. The constitution however vests the Attorney General of the Federation and of the States with prosecutorial discretionary powers. See: 174 and 211 of Constitution of the Federal Republic of Nigeria, 1999 (2011 amended, hereinafter in this paper referred to as “Constitution” or “CFRN”). Prosecutorial discretion is the power of the prosecutor to enforce the law selectively. It begins with the decision to initiate or decline prosecution and extends through sentencing. This includes the power to institute, takeover, and discontinue criminal prosecution.

It has been argued that some form of plea bargaining is illegal conceivable under the general discretionary powers of the Attorney General and his officers. The A.G may exercise his discretion to enter into negotiation with an accomplice to a crime if the interest of justice and public interest so requires. Such negotiations are usually accompanied with an understanding that lesser charges would be brought against the cooperating defendant whose without assistance the state may not be able to successfully prosecute other suspects who may be the masterminds. This practice which is accepted by the English courts at the period of early common law is also sanctioned and recognized in the United States of America. See: United States V. Boley 730 F.2d.1333-1334. This is evidently a form of plea bargain though not being able to stifle the clamour of those who have argued that plea bargaining is unconstitutional. Plea bargaining implicates some constitutional rights of defendants. These rights implicated by plea bargaining under Nigerian Constitution are:

Presumption of innocence until proven guilty.

The right to a fair hearing in public

The privilege against self-incrimination, and

The right to examination of witnesses called by the prosecution. See. Chapter iv of Constitution of the Federal Republic of Nigeria, 1999(as amended, hereinafter referred to as “Nigerian Constitution”) sections 36(5), 36(4), 36(11), and 36(6)d, respectively.

When a defendant enters into a plea agreement, the presumption of innocence in his favour is displaced. The prosecution no longer has to discharge the burden to prove beyond reasonable doubt that the defendant has committed the offence alleged. A plea agreement is an act of self-conviction by a defendant which negates his right against self-incrimination.

The crucial issue here is whether an agreement to plea bargain by a defendant can be said to be violation of these rights or whether these rights are rights which a defendant is permitted to waive. In Ariori V. Elemo(2001) 36 WRN at 94 the Supreme Court drew a distinction between fundamental rights that are for the sole benefit of the litigant and the public. The court held that rights for the sole benefits of the private individual can be waived while waiver of the second category of rights is not permissible. The court gave as example the right to speedy trial which a litigant can waive by asking for adjournments of the case. The court however ruled that waiver of a right to a speedy trial is not permissible where the adjournment requested is of such a nature that the court will lose the advantage it has of accurate assessment of the witnesses it had observed in the course of trial. The court noted that such an adjournment would lead to injustice and that it is against public policy to compromise illegality.

It is submitted that the aforementioned constitutional rights of defendants implicated in plea bargaining falls within the first category of rights as classified by the Supreme Court. Consequently, plea bargaining is legal in Nigeria.

Section 14(2) EFCC Act empowers the Commission, subject to the prosecutorial powers of the Federal Attorney General, to compound any offence punishable under the EFCC Act by accepting such sum of money as it thinks fit not exceeding the maximum amount which that person would have been liable if he had been convicted of that offence. This provision enables the Commission to compound cases arising under the Act. That section is silent on what the EFCC should do before or after compounding a case. The EFCC as a prosecuting authority necessarily has discretionary powers to institute criminal proceedings subject to the AGF’s constitutional powers. A combination of the discretionary powers of the EFCC together with the power to compound offences in the author’s views encompass the powers to plea bargain criminal charges with defendants

With the exception of states with Administration of Criminal Justice Laws, such as Lagos State, the Criminal Procedure Act, the Criminal Procedure Code and other Laws regulating criminal procedures in the various states have no direct provision for plea bargaining. There are however provisions which may produce the same result as plea bargain. The Criminal Procedure Laws permits a person standing criminal trial to enter a guilty plea. In such a case, the trial judge is required to verify the facts admitted by the defendant and ensure that it amounts to an admission of all the essentials elements of the offence before proceeding to conviction and sentence. There is no statutory authority in Nigeria that a person convicted pursuant to a guilty plea should receive lenient punishment from the court. It is however generally accepted that a guilty plea is a well-established reason for reducing sentence. A defendant may choose to plead guilty without any negotiation between the prosecutor and the defence. A guilty plea may be the result of informal or formal plea bargain between the prosecution and the defence. The distinction between an ordinary guilty plea and a guilty plea occasioned by a plea bargain is that the latter involved a promise of concession by the prosecution either in the form of dropping more serious charge or an agreement to a reduced sentence. The practical result of either of the two is that the defendant is likely to get a reduced sentence.

Furthermore, in a charge bargain, the prosecutor may withdraw some of the charges against the defendant if he agrees to plead guilty to lesser charges. This usually takes place where the plea agreement is concluded after the defendant has been formally arraigned and charged. If the plea agreement is concluded before the filing of charges the prosecution simply files the charges reflecting the agreement. The Criminal Procedure Act permits the variation of charges on the grounds that the charge is “imperfect or erroneous”. See: Section 162 of the Criminal Procedure Act, Cap C41 LFN,2010. The provision does not contemplate varying charges for the purpose of enabling the prosecution and the defence to conclude or effect a plea agreement. On the other hand, if it is agreed as earlier argued that the AG and the prosecution have the discretion to determine which charges to bring against defendant, that discretion may be exercised with or without a clear provision in the criminal procedure law.

There are no provisions in any existing procedural rules authorizing a court to take cognizance of a formal plea agreement except ACJ, 2011. The first case to the knowledge of the writer where a plea agreement was formally executed between the prosecution and the defense, filed in court and acted upon was in the case of FRN V. Dr.(Mrs) Cecilia Ibru (unreported in Charge No. FHC L/297/c/2009). In cases where a formal plea agreement is not filed and the court allows the prosecution to withdraw some charges and substitute new charges pursuant to a charge bargain, the court has given effect to a plea agreement.

Is Any Justification for Plea Bargains in Nigeria?

The need to promote the efficiency of the criminal justice system has been identified as the overriding cause for entering plea bargain negotiations. Plea bargain enables prosecutors to process thousands of criminal cases. The administration of criminal justice in Nigeria has been plagued with a number of problems. These include delays in the administration of justice, inadequate judicial infrastructure, both human and material, to enhance speedy determination of cases, high crime rate, overburdened prosecutors with heavy caseload, and unavailability of funds to provide the support services required to ensure smooth administration of criminal justice, plea bargaining provides an option to address some of the problems plaguing the administration of criminal justice particularly the problem of heavy criminal caseload and cost to tax payers of protracted criminal trials.

While it is important to carry out in-depth and detailed statistical surveys to verify some of the problems confronting the administration of criminal justice particularly the relationship between the volume of criminal cases and the time it takes to conclude criminal cases, there are some indications of delays in criminal trials in Nigeria. A survey of the length of time it took to process one hundred and thirty criminal cases from the trial court to the Supreme Court revealed that it took an average of eight years. It took an average of two years and eight months to complete a trial at the high court. A bumper of reservations may be made on the result of the survey. First, the survey only covered reported criminal cases that went all the way to the Supreme Court. Unreported cases obviously have been omitted. Second, the survey did not cover cases in respect of which there is no appeal. Third, there is no indication of the geographical spread of the cases. While there may be heavy caseload in heavily populated cities, the same cannot be said of the other less-populated cities. The survey therefore cannot be relied on as presenting a good representation of the length of trials for criminal cases in Nigeria. The reservations notwithstanding, the survey demonstrates the problem of delay in criminal trials.

CONCLUSION AND RECOMMENDATIONS:

Plea bargaining has continued to be controversial despite its prevalence in our criminal justice system. This has led some critics to call for its abolition. The introduction of plea bargaining and its initial use solely in corruption cases attracted reactions to the introduction of plea bargaining in Nigeria. The challenge however is that where factors that make resort to plea bargaining imperative exists, whether the legal system permit it or not, informal plea bargaining will evolve.

It is imperative that if plea bargaining is properly regulated can promote efficiency and enhance the dispensation of criminal justice. What follow is an exposition of the measures that can assist to ensure that plea bargaining is properly regulated in Nigeria.

Need for a Statutory Framework for Plea Bargains

Apparently, this writer contend earlier that there are existing provisions which arguably support some form of plea bargaining, the need for an express statutory provision to regulate such a novel concept in the administration of criminal justice in Nigeria cannot be over-emphasized. A statutory provision will set out clearly the procedure, nature and the form of a plea bargain agreement. A statutory framework will protect the rights of defendants to an informed and voluntary plea agreement. In addition, it will define the role of parties in the plea bargain process. Section 270 of the ACJA 2015 provides a detailed procedure for plea bargaining modeled after the ACJLAW 2011.

Just like the ACJL, the plea bargain should vest the power to consider and accept a plea bargain with respect to any offence in the Attorney General of the state. It is only a law officer that can enter into a plea agreement after consultation with the investigating police officer and if reasonably feasible the victim. The complainant if reasonably feasible is also afforded the opportunity to make representation to the prosecutor regarding the content of the plea agreement and the inclusion in the agreement of a compensation or restitution order. The plea agreement must be in writing and signed by the prosecutor, the defendant, the legal practitioner and an interpreter when required. As ACJL, the plea agreement shall state that before its conclusion, the defendant has been informed-

That he has a right to remain silent

Of the consequences of remaining silent; and

That he is not obliged to make any confession or admission that could be used in evidence against him

The plea agreement should also require a full terms of the agreement and any admission made. The above provisions are designed to ensure the protection of constitutional rights of defendants. It is counsel’s duty to explain to defendants the implication of plea bargain on their constitutional rights.

The court and plea bargain

The court is not allowed to participate in plea discussions. The court may be approached in open court or in chambers regarding the contents of discussions and may inform the parties in general terms of the possible advantages of discussions, possible sentencing options or the acceptability of a proposed agreement. The court’s general input in plea negotiation enables it to provide guidance of possible sentencing options and the possibility of the court accepting the terms of the proposed agreement. Participation of judges in plea negotiations have been frowned at because defendants may feel that if he refuses an offer that has involved the participation of a judge they will face harsher punishment if convicted after a trial. This writer is of the view that a trial following a botched plea bargain must start de novo before court.

The court inquire from defendants the correctness of the agreement, verifies whether the defendant admits the allegations in the charge and the voluntariness of the plea. If satisfied of the defendant’s guilt, the court may convict the defendant on his guilty plea. The court must find a factual basis for a guilty plea before entering judgment. Where the court is of the opinion that the defendant cannot be convicted of the offence in respect of which the agreement was reached or that the agreement is in conflict with the defendant’s rights, the court shall record a plea of not guilty in respect of such charge and order that the trial proceed.

The court exercises the final discretion to impose a sentence pursuant to a plea agreement. Where the defendant is convicted, the court shall consider the sentence agreed upon in the agreement and if the court is –

Satisfied that such sentence is an appropriate sentence imposed the sentence; or

Of the view that it would have imposed a lesser sentence than the sentence agreed upon in the agreement, impose the lesser sentence; or

Of the view that the offence requires a heavier sentence than the sentence agreed upon in the agreement, it shall inform the accused of such heavier sentence considered to be appropriate.

The above provision empowering the court to impose a lesser sentence than the sentence agreed upon in the plea agreement enables the court to intervene and protect defendants who for a variety of reasons might have agreed to terms, which on a fair consideration the court finds to be unfair. The law also enables the court to intervene and protect the interest of the society by ensuring that the sentence recommended in the plea agreement meets the justice of the case. The law gives a defendant who has been informed by the court of its decision of a heavier sentence two options. First, abide by the guilty plea as agreed upon in the agreement and subject to the defendant’s right to lead evidence and to present argument relevant to sentencing, the court may proceed with sentencing. Second, the defendant may withdraw from the plea agreement and the trial shall proceed de novo before another court.

Where a trial proceeds de novo after a defendant withdraws from the plea before another court

No reference shall be made to the agreement;

No admissions contained therein or statements relating to it shall be admissible against the defendant; and

The prosecutor and the defendant may not enter into a similar plea and sentence agreement

Regulating Plea Bargains Through Sentencing Guidelines

There are disparities in sentences imposed in the plea bargained cases. The most common justification for sentencing guidelines is the need to promote consistency. Sentencing guidelines can promote more principled approach to sentencing, constrain prison population and ensure fairness.

There is need for guidelines to be sufficiently detailed and prescriptive to actually provide guidance for courts at sentencing. Also is the requirement for judicial compliance with the guidelines. A guideline scheme should be accompanied by a statutory requirement for sentencers to follow the guidelines or provide reasons why this is not desirable.

The Attorneys-General and heads of prosecuting authorities should develope prosecutorial standards and guidelines to ensure that prosecutors apply them to prevent abuse of prosecutorial discretion.

Evolving comprehensive sentencing guidelines legislation able to provide effective guidance for sentencing courts, but flexible to allow departure where the interest of justice dictates should be adopted across the country.