Let's Plea Bargain All Crimes

How many will believe that my nephew and I were recently at a Police Station over a mere irregularity noticed in his car’s papers and none of the Police Officers, about 10 of them, that attended to us on that day had heard about the Administration of Criminal Justice Act before? My nephew was asked to make a statement, after I insisted that we would not give them the N10, 000 that they had demanded to release us and forget the case. The issue of the ACJ Act came up at the point of him making statement and I, invoking Section 17 (2) of the ACJ Act, insisted that I wasn’t going to leave the room where he was to make his statement. I argued that he was entitled to have a lawyer with him and that I was ready to act as one for him.

The Officers were furious on the basis that, according to them, I was referring to a non-existent law. I initially thought they were being mischievous until their Divisional Police Officer, a nice Officer, I must say, came and he too was shocked to hear of a law that says a suspect is entitled to have the presence of his/her lawyer, if he/she is to make a statement at a Police Station. The ACJ Act has so much to do with the Police, yet Officers don’t know the law exists, not to talk of knowing its provisions. In spite of the ubiquitous social media, online news outlets and the traditional newspapers, the level of ignorance on certain legal issues or concepts in our society, including where you least expect, could be embarrassing!

At another time, a caller, into a phone-in radio programme, “Conversation”, anchored by Oluwaseun Akinola on SplashFM (105.05), a privately-owned radio station in Ibadan, who, judging by the depth of his ideas and flawless Queen’s English must be at least a graduate of whatever institution of higher learning, displayed his near-ignorant knowledge of what Plea Bargain meant when he confidently asserted that it meant “accelerated hearing” and nothing more. Since 2005 that Plea Bargain has become synonymous with the Economic and Financial Crimes Commission (EFCC) and the settlement of white collar crimes, one is justified to expect an ordinary and a stark unlettered artisan by the roadside to know what Plea Bargain means. But this particular caller, and so it is likely there are many others like him, didn’t know what it means and ignorantly thought he did. He vehemently argued that the concept did not mean “negotiated agreement” as it is widely believed and is being used by the anti-corruption agencies in Nigeria.

His remark taught me a lesson – not to ever assume again that something is known or properly understood simply because it is touted by almost everybody in public discourse. Because of this experience, I chose to throw more light on Plea Bargain and in doing so, I shall venture to simplify the definition of the concept as much as possible. I won’t quote the definition in the Black’s Law Dictionary or those offered by some legal scholars because doing so may further complicate what it means even for the highly educated but who are not lettered in the field of law.

What is Plea Bargain?

Simply put, it is an agreement reached between a person accused of a crime and a prosecuting body where the accused is ready to plead guilty to an offence or offences in order to have a reduced penalty or to have some offences dropped against him. So, it is a win-win negotiation between the accused and the prosecutor. By this agreement, the accused reaps a lesser punishment, while the prosecutor’s time and resources which would have been expended in going into a full-length trial are saved. This is the meaning of the concept - as simple as ABC.
Among the Nigerian lawyers and lawyers in other places where the concept is known, this is basically what it means. In Nigeria, the controversy is really not about what it means; the controversy is squarely rather on three areas: one, is it known under the Nigerian laws? Two, is Nigeria ripe for it? And three, should it apply only to financial crimes?

Still on the controversy, I make bold to say that the first part of the controversy has disappeared with the passage of the ACJ Act because its Section 270 has now provided extensively for how and when it is to be used, the roles of the accused, the prosecutor as well as the court. This was not the state of our jurisprudence prior to the arrival of the ACJ Act in 2015. Before 2015, of course there was the ACJ Law of Lagos State, 2011 but the EFCC wasn’t using it for Tafa Balogun, D.S.P. Alamieyeseigha, Cecilia Ibru and co. EFCC was relying on Section 14 (2) of its establishment Act but there was no consensus among legal minds that the section accommodates Plea Bargain. It got to a point that a sitting Chief Justice of our country called it “a novel concept of dubious origin”. Before 2015, no federal law in Nigeria specifically mentioned Plea Bargain in its provisions. But as I said, we have now overcome that.

But then is Nigeria ripe for the use of Plea Bargain? This appears the most complex aspect of the controversy. It is like the debate on the State Police – whether Nigeria is ripe or not but almost everybody concedes that the present security architecture in a federal setting like ours is far from being ideal, making a Governor, the supposed Chief Security Officer of a State, a mere toothless bull-dog. Similarly, it is agreed that the present state of our criminal justice system is not as effective as it should be. It is a herculean task to secure conviction in any criminal case irrespective of the social status of the accused involved. But for some years, we have experimented Plea Bargain and some powerful figures, who may not have been brought to justice without it, have been convicted and both the convicted and the State have reaped some benefits. What is left, for me, as far as the concept is concerned, is for us to sanitise the circumstances of its usage, do away with the restrictive and clannish use of Plea Bargain for the privileged treasury looters and let it apply to all crimes.

The only controversy that lingers, at least palpably, is - should it apply only to financial crimes? No, it shouldn’t. In the US in spite of the sophistication of its law enforcement agencies and judicial system, it applies to all crimes. Luckily, the provisions of the ACJ Act are elastic enough to apply it to all crimes. I do not see any reason we cannot use it to decongest all our prisons of the overwhelming awaiting trial inmates, majority of whom are persons alleged of simple offences such as stealing, burglary, arson, malicious damage, and even using it for more serious offences like rape, murder, manslaughter, armed robbery, robbery, and others should not be seen as out of place.

In the US where it first gained popularity, records have it that over 90% of criminal cases is resolved with it. In India, on the other hand, it is used essentially to decongest prisons and relieve the State of unnecessary expenses in keeping offenders in prisons and prosecuting persons accused of petty crimes. In the Asian giant’s territory, Plea Bargain is not used at all for persons involved in socio-economic crimes as well as crimes having women and girls as victims. Those are considered serious offences that threaten the whole society and to which the State’s resources and prosecuting attention must be concentrated for the larger interests and safety of the public. It is also not used in India for any crime that attracts 7 years imprisonment or more.

The option I propose is certainly not the model in use currently in Nigeria but either the one of the US or India. Any will be better and cheaper than the one we are using.
Nigerian prisons have built-in capacity to accommodate a maximum of 50, 153 inmates but today it accommodates 62, 260. This figure was provided by the National Bureau of Statistics as at 2015. Majority of those who commit crimes in Nigeria are poor, unemployed, and illiterate members of our society and this is the segment we should worry more about. Not the minority who are privileged to be close to our national till and are abusing the trust to enrich themselves undeservedly. Anybody who does that shouldn’t be bailed out by Plea Bargain. It is these minority members who put the rest of us in this mess – no good roads, hospitals, schools, power supply, public transport system, social welfare system and all that because of their greed and corruption.

Plea Bargain should be used for the poor law-breakers who populate our over-congested prisons and who do not have money to hire the services of lawyers. These are the vulnerable members of our society not the economically and politically exposed persons who have the wherewithal to hire the services of most competent advocates for their defence. If Plea Bargain cannot be used for all crimes, it shouldn’t continue the way we use it in Nigeria. It is purely oppressive and unjust.
But even if this proposition is welcome, no progress in the fight against crimes and efforts to provide a safer society will be achieved when law enforcement agents remain ignorant of most critical laws. In particular, I canvass an aggressive awareness programme about the ACJ Act and other similar legislation for the Nigeria Police. Police are affected more than other actors in the chain of criminal justice system and their awareness and understanding of relevant legislation is key to their meaningful implementation. Again, apart from Lagos, Ekiti, Anambra, and FCT, other States need to replicate the ACJ Act as soon as possible. We expect in a matter of few months that the already passed ACJ Laws in Oyo, Ondo, Enugu, and Rivers will become active. The ACJ Act only applies in federal courts, and thus, any State that does not replicate it deprives itself of the numerous advantages and innovations of this legislation.

In closing, if there is any society that needs Plea Bargain, Nigeria is certainly one. Many, if not most, law-breakers, even among the under-privileged culprits, go scot-free because of multifarious challenges confronting our criminal justice system. The Police are ill-equipped to carry out thorough investigations of crimes; the Judiciary is under-funded; witnesses are frightened to give testimony in courts; Prisons are bursting due to congestion, while the Government law officers are over-burdened and poorly motivated. One of the surest ways to checkmate the disturbing rate at which law-breakers go unpunished for lack of evidence is for us to fully embrace Plea Bargain and apply it to all crimes. When we decide to do that not even Section 127 of the Criminal Code of Oyo State, for instance, can stand on our path. This is because it could be argued that the ACJ Law, being a later statute, overrides the former statute, that is, Section 127 that forbids settlement of any offence which carries a 7 year-term of imprisonment or more (that is, talking about non-compounding of felony).

This article is written by Kehinde ADEGBITE Esq and originally published on www.ikengachronicles.com on May 1, 2017.