The Concept Of Plea Bargaining In Nigeria -By Fatika Zainab

The notion of plea bargain in our system today has been a subject of discussion, argument and controversy. However, when one is arguing for or against the adoption of plea bargain, one has to put in mind the context and locality of such place. Looking at the Nigerian context where social vices are difficult to curb, one will wonder if really the concept of plea bargain should stay or not.

Plea bargain is a type of Alternative Dispute Resolution (ADR) that is applicable in criminal cases. In this case, the prosecution will enter into agreement with the accused person to accept to plead guilty and the accused will be given a lesser punishment. It is also defined by Black’s law dictionary as a negotiated agreement – between a prosecutor and a criminal defendant where the defendant pleads guilty or no contests to a lesser offense or to one multiple charges in exchange for some concession by the prosecutor. Now, since plea bargain happens in criminal cases, it has been in use mostly in corruption cases. Corruption is one crime which seems to hinder the development of Nigeria as a country and it is such a notorious crime that seems almost impossible to curb. It is indeed a crime that has gained tremendous popularity in the news and articles of our national dailies.

Fatika Zainab

Generally, corruption has been defined as the misuse of public power by elected politicians and appointed civil servants for private gain. In an attempt to eliminate this crime, however, By virtue of section 60(a) of the second schedule of the constitution that gave the legislature the power to enact and establish any authority “to promote and enforce observance of the fundamental objectives and directive principle contained in this constitution”. It is to this effect of the aforesaid section that made the legislatures to enact statutes in order to fight this crime. These are the EFCC Act as well as the ICPC Act. Moreover, apart from the traditional codes that fight general crimes which are: the criminal code Acts and the penal code Law, all the aforementioned statutes have provisions for corruption and its punishment. Therefore, if all these statutes are enacted to eliminate this crime, what then is the use of plea bargain? Plea bargain in the opinion of this writer is just a means to set corrupt people free and save them from punishment. For instance, in a situation where a criminal is apprehended for corruption, and especially where that person is entrusted with the people’s asset, will it be right to allow such a person to plea bargain, where other countries like China adopt capital punishment for corruption?

According to Lord Denning M.R in one of his Dictum: “Justice is rooted in confidence, and the confidence is destroyed when a right thinking person walks away thinking the judge is biased in the case.”

And also the legal maxims “Fiat Justitia ruat coleum” meaning “let justice be done even if heaven will fall”. In line with the aforesaid, is justice said to be done when you bargain with an accused person and not allowing the law to take its full course? It shouldn’t skip our minds that corruption is an offense in criminal law and thus termed a crime. When found guilty beyond reasonable doubt, the only justice is to punish the offender. And plea bargain can never be termed as punishment. According to Aristotle, the supremacy of law is a mark of a state and not merely an unfortunate necessity.

Judiciary is said to be the last hope of a common man. It is therefore highly significant for the judiciary to dispense justice without fear or favor or any favoritism in punishing those that are addicted to criminal tendencies in acquiring material things and other self-centered desires that tend to pervert holders of office. It is thus a mockery of our criminal law and a hold in the progress of judiciary in dispensing justice.

“Man when perfected,” said Aristotle, “is the best of animals but when separated from law and justice, is the worst of all”.

Where there is a crime, if punishment is inadequate, there is every likelihood of repetition. The use of plea bargain in corruption cases is indeed a mockery to justice and punishment. This is because the plea bargain is mostly used for the rich where they are saddled with responsibilities while disadvantaged citizens suffer the full weight of law, when they commit similar crimes.

Typical illustrations to buttress this assertion are not far-fetched. The case of Igbinedion in Edo state in December 2008 who was alleged to have stolen and looted N4.4 billion public funds belonging to the people of Edo state cannot be easily forgotten. He was charged and fined only for a pocket sum of N3.5 million which of course would have been taken out of the looted funds. The same happened in the case of the former governor of Bayelsa state, the case of F.G.N v. Alamieyeseigha who was also charged for looting of public funds in which the concept of plea bargain was adopted. The question here is: Can there be an adequate justice with the use of plea bargain? In an interview that was published in the Vanguard Newspaper of November 18, 2012, Eso, JSC said of plea bargain in Nigeria thus: “they bargain with the judge, bargain with the accused person, he returns half the money, and then they give him some hairy-fairy punishment- go and serve three months in prison and the three months will, of course, be in the hospital. This, of course, is an encouragement for governors and other political office holders to steal when they come into office. There is no plea bargain in our law. It is encouragement of corruption to bring plea bargain into the law of Nigeria.

Karl Marx was quite right in his Marxism theory on the prediction of the disappearance of law sometime in the future. They see law as an instrument of oppression employed by the capitalist class of the society to exploit and suppress the commoners and maintain their dominance over them. The aforesaid clearly show how the law is being bargained with at the disposition of the rich while the poor are charged for minor offences.

J.S Mill in his clear and coherent language said:

To prevent the weaker members of the community from being preyed upon by innumerable vultures, it was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down.
Indeed Nigeria is in need of an animal of prey stronger than those who loot at their will not some cheap plea bargain that will encourage more looting. If plea bargain be used every time, what then is the use of our criminal law, the codes and other secondary enactment?

In conclusion, it is crystal clear that all the aforesaid are pointing to the fact that there can never be adequate and genuine justice with the use of plea bargain in country like Nigeria, especially when it is bent on curbing corruption entirely.

To this writer, corruption is such an offence that requires a capital punishment not some cheap plea bargain. This will however bring a significant increase in curtailing the notorious crime. Respect should be given to the constitution of federal republic of Nigeria which says “the state shall abolish all corrupt practices and abuse of power”. Plea bargain can never be a right punishment for the corrupt; it merely encourages more stealing with the view that there is always a plea bargain.

Fatika Zainab Ibrahim
Kaduna State