As the country continues to battle against financial and other crimes, plea bargain appears to have created cracks in the justice system for some corrupt government officials to plead their way out of prison. In this report, KEHINDE OSASONA writes on the recent effort by the Ministry of Justice to review plea bargain guidelines.
The Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN), at a virtual stakeholder roundtable for the Review of the Plea Bargaining Guidelines for Federal Prosecutors in Abuja, assured that the move was to guide federal prosecutors expectedly to guide against abuse of legal processes.
Plea bargain is described as a concept of restorative justice within the criminal justice system by LegalPedia Online.
According to LegalPedia, after adoption, the plea bargain concept can only be accomplished through cooperative processes that include all stakeholders.
However, some stakeholders in law enforcement and criminal justice system have described plea bargain as a get out of jail free card especially for government officials and politically influential individuals, while others attribute high conviction rate recorded by the Economic and Financial Crimes Commission (EFCC) and its sister agency, the Independent Corrupt Practices and other Related Offences Commission (ICPC).
Records indicate some prominent government official who have taken advantage of plea bargaining include the former Comptroller-General of Customs, Abdullahi Inde Dikko, who was opted to refund about $8 million believed to have been misappropriated during his tenure as Comptroller-General of Customs in a plea bargain agreement with the federal government.
Expectation was that Dikko’s prosecution would have been aborted following the refund of the said sum, however, EFCC later clamped-down on him and filed charges against the former Customs helmsman.
Luckily for Dikko respite came his way when a Federal High Court in Abuja stopped the EFCC from prosecuting him for financial infraction while in office.
Among the reasons advanced by the court were that having entered an agreement with the Attorney General of the Federation (AGF) and the Director-General of the Department of State Services (DSS) to refund $8 million to the government, no anti-graft agency of the federal government had power to prosecute him.
While delivering judgment in the matter, Justice Nnamdi Dimgba, upheld Dikko’s argument, saying since it was proved that such an agreement exists, and Dikko has kept his side of the bargain by paying N1.576 billion ($5.12 million) to the federal government through the EFCC funds recovery account in the Central Bank of Nigeria (CBN), it was wrong for the EFCC or any other agency of government to seek to prosecute him on the same crime.”
Justice Dimgba noted further that by virtue of the provisions of Section 174 of the Constitution, the AGF, being the chief law officer of the federation, was imbued with wide powers and discretion on prosecution matters.
The claim by the anti-graft agency that it acted on an anonymous petition to commence its investigations according to the Judge, “cannot override the discretionary powers conferred on the Attorney-General of the Federation by virtue of Section 174 of the Constitution.
“Since Attorney-General did not oppose the suit by Dikko, the AGF had subscribed to Dikko’s case,” Justice Dimgba added.
EFCC makes case for review to prevent abuse
Speaking at the opening of a Legal Leadership Retreat organised by the EFCC for prosecutors of economic and financial crimes at the EFCC Academy, Karu, Abuja, in 2019, the former acting Chairman, EFCC, Ibrahim Magu, maintained that plea bargaining was instrumental to the high rate of conviction recorded by the commission.
The anti-graft agency boss, who said plea bargain had boosted the agency’s conviction rate, however, advocated the review of the plea bargain processes.
He suggested that it should be done in line with the country’s core values to prevent abuse and corrupt practices.
He noted that plea bargain could not be ignored in criminal prosecution as it was also being used in the United States and other developed countries to fight corruption.
He, however, expressed reservation over the “dubious attempts” by some suspects who colluded with their lawyers to distort the concept of plea bargaining as a decoy to waste the time of the process.
Addressing the lacuna
Lately, many Nigerians have become wary of plea bargains, having discovered that it merely provided an avenue for mind-boggling looters of public treasury to escape justice by returning meagre amounts to government.
This notion is fuelled by the reality that some high profile public officers including former governors, who were involved in corruption cases, got away with merely a slap on the wrist following plea bargains.
While reacting to the development in a chat with Blueprint Weekend, an Abuja-based Public Commentator Micheal Ubong, wondered why it took the government longer time to think of reviewing some of the lacuna in the provisions of plea bargain.
According to Ubong, there should be periodic review of some of these provisions in order to enhance transparency.
“For Nigerians to take the government seriously on the issue of plea bargains, I think there is a need to exhibit some level of transparency and let the people know why certain reviews was necessary,” Ubong said.
Malami acknowledges abuses due to procedural lacuna
Similarly, the Attorney-General of the Federation while speaking at the stakeholder roundtable admitted that abuse of plea bargain due to procedural lacuna in the law was responsible for public distrust of the arrangement.
The draft guideline which was developed by the Administration of Criminal Justice Reform Department in collaboration with Rule of Law and Anti-Corruption Programme (RoLAC) and others was to address some of the lacunas and deficiencies.
The represented of Solicitor-General of the Federation and Permanent Secretary, Federal Ministry of Justice, Dayo Apata, said Section 270 of the Administration of Criminal Justice Act (ACJA), 2015, “provides the general legal framework for the application of plea bargain.”
He noted, however, that the provision was inadequate stating: “I believe that this provision can also be effectively deployed to address the compounding of offences which features in some statutes but without any procedural detail to aid its application.
“This lacuna is responsible for abuses in compounding of offences which had strengthened the current public skepticism about plea bargaining in general.
“In spite of the laudable provisions of section 270 of the ACJA, there is no doubt that these provisions are inadequate to guide the prosecutor and the defendant in reaching a plea bargain that ensures the protection of public interest, the interest of justice and prevents abuse of legal process.”
He further stated, “As you are well aware, the justice system in our nation is currently fraught with a lot of challenges which prolong adjudication time and most times frustrate parties.
“The effective deployment of plea bargain provisions will therefore, reduce the financial cost of prosecutions, hasten trial process, eliminate uncertainty of trials, enhance the quick return of stolen assets, and generally enhance the efficiency of the criminal justice system.
“The purpose of the Draft Guidelines is to promote standardization and consistency in Plea Bargain (including compounding of offences) by Federal Prosecutors as well as ensure that the principles of accountability, equity, integrity, and transparency are observed in reaching plea bargain agreements across the board.
“The draft provides further support to the existing Code of Conduct and Prosecutorial Guidelines for Federal Prosecutors which generally regulate the conducts and actions of Federal Prosecutors in the exercise of their prosecutorial discretion.
“With the new developments, benefits of effective deployment of plea bargains will include reduced financial cost of prosecutions, speedy trial process, removal of uncertainty of trials, quick return of stolen assets, among others.”
Plea bargain cost-effective, saves time
While justifying the introduction of plea bargain in an interview with Blueprint Weekend, an Abuja based legal practitioner Gani Arobo described the initiative as a remedial tool in the criminal justice system in the country.
He noted that though a foreign concept, plea bargain he restated has gained traction in the country, saying that the formative legal jurisprudence has continued to evolve at a fast pace.
According to Arobo, Section 112 and 270 of the Administration of Criminal Justice Act provides for plea bargain, saying the legal justification for its application is that it is now a statutory provision contained in the ACJA.
“As a process, plea bargains are cost-effective and save judicial time. The major deficiency is that it may become an avenue for giving suspects a mere slap on the wrist for serious offences thereby reducing the efficacy of sanctions as a tool for ensuring compliance with laws and elimination of social deviants,” Arobo noted further.
… It may cause more harm than good
Also reacting, another lawyer Cajetan Yagazie Obinna questioned the anticipated gain that the legislature had in mind while passing plea bargain into law.
Yagazie noted, “Plea bargain, as it stands, cannot be said to be an abuse of court process per say. But the question that comes to mind is whether or not such gain has been actualised.
“In my opinion, plea bargains have done little or no good in the fight against corruption and it may cause more harm than good in the future.
“In a country like ours where corruption has eaten deep into the fabrics of our national life, plea bargains seem to be a way of pampering corruption instead of fighting it head on.
“For me, corruption is corruption and a criminal must be allowed to face the consequences of his actions no matter his status.
“At this stage of our national development and the level of corruption both in public and private, plea bargains may do more harm than good.
“More importantly, I want to suggest that it should be jettisoned and to also advice the new EFCC Chairman to allow criminal face the law.”
