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Should judiciary continue to allow plea bargain in corruption trials?

Профессор права Itse Sagay
The illegality of Senate's summon on Prof Itse Sagay, Source:

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Plea bargain is an indicator of the development of a country’s criminal justice system. A country that does not have plea bargain is a country that lacks a developed justice system. It is absolutely essential because when you file about three to five charges against a person and one is extremely serious while the others are not too serious, you may find that in the process of investigation, you don’t have conclusive evidence for the most serious charge but you have sufficiently convincing evidence for the less serious charges, what a plea bargain does is that the person will agree to plead guilty to the less serious one and receive sanction for it.

The reason for this is that if you go on a wild goose chase over the major charge, the case may go on for a long time and you spend a lot of resources on prosecuting the matter and at the end, the case may be lost and this doesn’t make sense.

Every civilised country has it including the United States and Britain. Another instance is where a person has been charged with looting billions of naira and the normal punishment would have been five years.

But when he agrees to plea bargain and admits guilt, the sentence is reduced. So, it saves the state a lot of resources, time, energy and money. It is absolutely essential. I agree that plea bargain was corrupted in the past. Back then, the prosecutors and judges were corrupt and they would conspire among themselves to give light penalties for major offences. They could ask a person to pay a fine of N3m for someone who stole N1bn and then they go behind to share money. But if it is done the way it is now, once a case has been charged and the defendant wants plea bargain, the prosecutor would draw up terms and both parties would agree and then approach the judge and submit the application. The judge would go through the terms and then decide on whether to approve or not but if it looks suspicious, the judge will reject it. And the case will be made to start afresh before another judge.

Prof. Itse Sagay, SAN (Chairman, Presidential Advisory Committee Against Corruption)

The issue of plea bargains came about because criminals are very clever people. In the process of committing the offences, they cover their tracks. So, by the time you discover what has happened, they have covered all the tracks. Perhaps, while in incarceration, they may admit to some of their crimes and that might be the only thing the state can hold against them. What do you do? They have committed an offence but you cannot prove it, the hard facts are not there. Rather than lose the whole matter, you may settle for plea bargain. It is not the best thing to do but you are left with little or no option in a situation where the criminals cover their tracks so well that there is no other way of pinning them down. That is why it is the only way one can say let it be; because we cannot prove the offences. It is not the best option but in the circumstance which we have found ourselves, there is a lot of collusion among those who should be the custodians of our national treasury.  Many of them are involved in it, by the time they commit these offences, you cannot trace it to them; I am talking about corruption cases. Corruption cases are very easy to pronounce but when it comes to getting the facts, how do you prove it?  Most of these offences are supposed to be documented, if you cannot get the document, what do you do? We know something has happened, but how do we prove it before the judge?

The best way to address corruption matters is to train citizens in integrity. Citizens, who know that the national treasury is sacred and belongs to us all. Not citizens who think that whatever they grab belongs to them. We must educate and liberate our people, give them a lot of training so that they know that the anti-corruption fight is not meant for President Muhammadu Buhari and governors alone. Every Nigerian must be involved. All of us must be conscious that our national treasury belongs to all of us.

Gabriel Okafor (A Senior Advocate of Nigeria)

Plea bargain is a negotiated agreement between a prosecutor and a criminal defendant where the defendant pleads guilty to a smaller offence or to one of multiple charges in exchange for some concession by the prosecutor usually, a more lenient sentence or a dismissal of the other charges. The negotiation is subject to the approval or consent of the court.

Having said this, I wish to state categorically that plea bargains should not be considered for persons that have corruption charges against them.

If those facing corruption charges are considered for plea bargains, chances are that the government would inevitably be compromising such cases and it is going to be unconstitutional, especially as it concerns the essence of fair hearing in criminal trials.

If a person has been charged with corruption and a plea bargain is given as an option to such a person, the person would have been coerced to accept a little sentence or punishment which means taking away his constitutional right to a fair trial. Plea bargains will also lead to poor case preparation and investigation.

It can, however, be argued that the concept has helped in faster conclusion of cases but not in proper prosecution of such cases.

To allow plea bargains operate, it simply means that corrupt officials will simply steal or cart away billions of naira and return a percentage of same loot to the government, and lie low for few years and re-emerge to spend the profit of their loot. A plea bargain is a pro-corruption concept that is buttered with the principle of law. Rather than the government adopting plea bargains, it should strengthen judicial institutions and ensure corrupt persons are duly prosecuted. A proper prosecution can lead to jail terms.

Habeeb Whyte (Legal practitioner)

The matter of plea bargains is an option and if the system accepts it as an option in the judicial process, who else is qualified to say it should not be or it shall be? It has become an option in Nigeria. It is not very legitimate, it is not very legal but it has become an option in Nigeria and indirectly it is encouraging people to go and steal as much as they can. Where they even feel that they cannot steal enough, they will use “snakes, fishes and monkeys” and after stealing, they will opt for plea bargain. And during the time for plea bargain, you will not see any snake, monkey or fish.  Human beings will be involved in the plea bargain.

It is part of the decay that we have come to see in the historical development of our society. Within the level of advocacy, I do not accept much of that in my brief, it is against my conscience. If you commit an offence, go in for it. If you did not commit an offence, it must not be put on your head.

To address the hydra-headed corruption monster in Nigeria, we need to do more. We are already addressing it a bit; it is a matter of human conscience. There are many preachers in the world but doers are not many. At the end of the day, human beings will not be the ultimate judge. God is the ultimate judge.

Dr Dave Ezeigwe (Member, Nigeria Bar Association, Enugu State chapter)

A plea bargain should not be an option because there are certain cases you see and you will know that the person involved is inherently criminally minded. By the time somebody takes N3 to N5bn out of the system which he is supposed to superintend then it becomes an intentional act; a deliberate action to undermine the people economically. Such a person does not require a plea bargain.

The plea bargain we are talking about can only be effective if somebody takes like N10m from government coffers and then he builds a four-bedroom apartment for his family, you can begin to consider poverty as part of the problem; it is not when you take N5bn and you are talking about a plea bargain.

Such plea bargain after somebody has stolen N5bn means that the person is greedy and selfish and does not require the mercy of the government. So, let us not abuse the plea bargain by including it as an option in the fight against corruption. However, if the person can be made to return the money he stole down to every kobo, then the plea bargain will be acceptable as an option in return for the person staying out of jail.

What I will also say without fear or favour is that those that steal money in billions should be punished because they are economic vampires. They are criminals who contributed to the poor situation we are today. The masses are suffering and few individuals are living extravagant lives.

Chief Omenazu Jackson (Port-Harcourt-based human rights activist)

The concept of plea bargain does not mean that offenders will not face trial. It also does not mean that the offender will not be punished. Firstly, there may be conspiracy or stealing or other crimes committed. If all these crimes were committed, we can bring in plea bargain and allow for the return of the proceeds of crime.

If all these proceeds are returned, the punishments can of course be discounted.

Look at the situation where a lot of money would be spent on investigation, and someone just comes and volunteers to give up the proceeds of crime, definitely there will be less punishment.

But it is not that anyone, who steals public money, will go unpunished. At least, they should be made to forfeit anything from N1bn upward. The offenders must forfeit all and the person should be duly prosecuted. If someone loses his life as a result of the fraudulent crime committed, the plea bargain may be converted to life imprisonment instead of taking the life of the convict. Also, those who aided the crime must be arrested alongside and the plea bargain should be considered for such offenders if it will be applied at all.

Debo Adeniran (Director, Centre for Anti-Corruption and Open Leadership)