THE NIGERIAN JUDICIARY ON TRIAL : Plea-bargaining for The Elite Class and future of Nigeria Justice System (KAYODE KETEFE)

“I hereby sentence the accused to a term of six months’ imprisonment and a fine of N500, 000 on each of the eight counts against him. The six months will run concurrently and the 67 days he had already spent in detention during the trial will be deducted.” The above was how Justice Binta Nyako of the Federal High Court, Abuja, pronounced judgment on the former Inspector-General of Police, Mr. Tafa Balogun. In the charge preferred against him in 2005 by the EFCC under the Money Laundering Prohibition Act, Balogun was said to have incorporated some companies to loot the police treasury through bribes and kickbacks on contracts.

He was further alleged to have withdrawn billions of naira fraudulently from these accounts and transferred and fraudulently used same to buy shares, landed properties and foreign currencies. After some successful session of plea bargaining, the numerous counts of offences against him were collapsed into a ‘manageable’ eight counts; and despite the fact that a relatively sizeable number of his properties and assets were ordered seized, many commentators nonetheless believe that there was a disconnect between the severity of the offences and the penal consequences.

They added that the judgment was nothing but a mere slap on the wrist. Other famous cases built on plea-bargaining procedure included those of Cecilia Ibru, former Governors Lucky Igbinedion and Diespreye Alamieyeseigha of Edo and Bayelsa states respectively. The case of Igbinedion specifically baffled many observers. He was charged with stealing about N4.4 billion. But he plea-bargained his way out! In the ruling delivered by a Federal High Court in Enugu, Igbinedion was fined a paltry N3.5 million and ordered to forfeit only three landed properties to the Federal Government.

He paid the fine and walked out a free man. Only last Monday, the debate on the appropriateness of the notion of plea-bargaining in our criminal justice system was revived. This was the fallout of the case of an Assistant Director with Police Pension Board, John Yakubu Yusuf, who was sentenced to two years imprisonment with an option of N750, 000 fine for the three-count charge of conspiracy and stealing of N32.8 billion from the pension funds. The presiding judge, Justice Mohammed Talba, also ruled that the convict must forfeit a total of 32 properties to the government. What then happened? Yusuf paid the fine on the spot and breezed out of the courtroom in style as a free man!

This judgment expectedly has continued to draw vitriolic reactions from numerous commentators since Monday. Now, what exactly is plea-bargaining? It is a kind of arrangement where the prosecution enters into some form of compromise agreement with the accused, enabling the latter to plead guilty to some lesser offences than those originally leveled against him. This is to enable the prosecution secure a faster conviction. Although now a popular feature in our criminal justice system, plea bargaining was never contained in black and white in any law in Nigeria (until recently when Lagos State introduced it in its Administration of Justice Law, 2008.

A number of criticisms could be raised against our use of this concept. To start with, it could be said that it indirectly aids corruption by giving ‘soft landing’ to the accused persons, who would escape the full wrath of the law. Secondly, since plea bargaining is not procedurally regulated by the law, it may be claimed that the negotiation between the prosecution and the accused is subject to the whims and caprices of the latter. Thus a situation may arise where too lenient a negotiation may lead to the offences being outrageously watered down. Thirdly, it may encourage a situation where the accused may steal recklessly, hoping to part with a percentage of the stolen assets in the ensuing plea bargaining while keeping some to be enjoyed after serving a light sentence of imprisonment that may be imposed on him!

On the other hand, plea bargaining seems to have some advantages, too! These include the much-touted expedient prosecution of the accused, which might otherwise take prolonged period. Secondly plea bargaining could lead to substantial recovery of the stolen asset as was the case in the Balogun and Ibru’s cases where assets worth hundreds of billions of naira were recovered. Lastly, plea bargaining tends to ensure certainty of punishment because whenever the accused pleads guilty conviction will naturally follow. In the developed countries like the United States where plea-bargaining strategy is also used, it is often employed to aid justice rather than to hinder it.

Therefore, a law ought to be enacted by the federal and state legislatures to define the application and procedure for the doctrine of plea bargaining in Nigeria to make it an ally instead of an enemy of justice.