By David A. Akintimoye
The incumbent Chief Justice of Nigeria (CJN), Justice Dahiru Musdapher, was reported to have criticized the Economic and Financial Crimes Commission, EFCC, for smuggling the plea bargain concept into the Nigerian criminal jurisprudence and also said that the concept had “dubious” origin. The learned CJN explained what he meant by his statement that the concept had a dubious origin in Nigeria: “when I described the concept as of ‘dubious origin’, I was not referring to the original raison-d’être or the juridical motive behind its conception way back either in the United States or England in the early 19th Century, I was referring to the sneaky motive behind its introduction into our legal system, or its evident fraudulent application. You will learn that plea bargain is not only “condemnation without adjudication” as John Langbien decried it, it is as some other critics say) “a triumph of administrative and organizational interests over justice. At its very best it penalizes the innocent who may be tempted to plead guilty to avoid being actuated by judicial default and at its most obnoxious extent it grants ‘undue leniency’ as reward to criminals simply for pleading their guilt. You will see also that plea bargain is not only a flagrant subordination of the public’s interest to the interest of ‘criminal justice administration’, but worst of all, the concept generally promotes a cynical view of the entire legal system. I have said that our wavering disposition on the ethical standards set by your noble profession guarantees or jeopardizes our peace, security and progress. And it is the reason that I have chosen this occasion to speak-with all sense of solemnity-on a matter that has continued to eat away at even the modest gains that we seem to be making in reforming both the infrastructure and the overall judicial template of the Nigerian Judiciary.” Vanguard Newspaper, March 6, 2012.
The Nigerian Bar Association (NBA) and the Nigerian Human Rights Commission (NHRC) countered that his “claim that the plea-bargain system was unknown to the Nigerian law did not fairly reflect the state of the law.”
It is very unfortunate that this outright rejection of plea-bargaining is coming from the highest judicial officer in the country. It is very unfortunate because the practice has worked so well in the United States and England in preventing criminals from benefiting from their wrongdoing. In this article, I will first discuss the concept of plea-bargaining as it is understood under American and California Jurisprudence. In the process, I will also discuss the merits and demerits of plea-bargaining. Later, I will discuss how it crept into Nigerian criminal jurisprudence and whether it should be allowed to continue.
In Santobello v. New York (1971) 404 U.S. 257, 260 [92 S. Ct. 495, 498..., the Supreme Court of United States of America (apex court in the United States of America) stated: "The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged."
In People v. Orin (1975) 13 Cal. 3d 937, 942 [120 Cal. Rptr. 65, 533 P.2d 193], the California Supreme Court (apex court in California) described the plea-bargaining process as follows: "The process of plea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People (the prosecutor) and the defendant and approved by the court. (§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West (1970) 3 Cal. 3d 595, 604-608 [91 Cal. Rptr. 385, 477 P.2d 409].) Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment, by the People's (prosecutor’s) acceptance of a plea to a lesser offense than that charged, either in degree or kind, or by the prosecutor's dismissal of one or more counts of a multi-count indictment or information."
Orin stated: "Judicial approval is an essential condition precedent to the effectiveness of the 'bargain' worked out by the defense and prosecution. [Citations.]" ( People v. Orin, supra, at pp. 942-943.) A plea bargain therefore "is ineffective unless and until it is approved by the court. [Citations.]" ( In re Alvernaz (1992) 2 Cal. 4th 924, 941 [8 Cal. Rptr. 2d 713, 830 P.2d 747].)
Santobello explained plea bargaining was "highly desirable" for many reasons: "It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. [Citation.]" (Santobello v. New York, supra, 404 U.S. at p. 261 [92 S. Ct. at p. 498].)
In addition to the above reasons, plea bargaining may be justified where there is insufficient evidence to prove the prosecution’s case or the testimony of a material witness cannot be obtained or a reduction or dismissal of a crime would not result in a substantial change in sentence.
The EFCC boss has argued convincingly that the plea bargain concept permits quick resolution of criminal proceedings, saying it helped the anti-graft agency to overcome the challenges of unnecessary delays and the uncertainties of trials and appeals.
A plea bargain is not binding on the prosecutor or state until the defendant has performed all the terms of the plea bargain and thereafter pled guilty to the offense agreed upon. The great weight of case law supports the position that a prosecutor may withdraw from a plea bargain before a defendant pleads guilty with court approval or otherwise detrimentally relies on that bargain. One secondary authority states: "The prevailing doctrine is that 'the State may withdraw from a plea bargain agreement at any time prior to, but not after, the actual entry of the guilty plea by the defendant or other action by him constituting detrimental reliance upon the agreement.' " (2 LaFave et al., Criminal Procedure (1984) Pleas of Guilty, § 20.2, p. 603, quoting Shields v. State(Del. 1977) 374 A.2d 816, 820.)
The overwhelming majority of cases summarized in Annotation, Right of Prosecutor to Withdraw From Plea Bargain Prior to Entry of Plea (1982) 16 A.L.R.4th 1089 and later cases (1999 pocket supp.) page 95, permit a prosecutor to withdraw from a plea bargain before a defendant pleads guilty or otherwise detrimentally relies on that bargain. In State v. Crockett (1994) 110 Nev. 838 [877 P.2d 1077, 1078-1081], the court reviewed cases from other jurisdictions and concluded: "The greater weight of authority supports the State's contention that a prosecutor can withdraw a plea bargain offer anytime before a defendant pleads guilty, so long as the defendant has not detrimentally relied on the offer." In State v. Wheeler (1981) 95 Wn.2d 799 [631 P.2d 376, 378-379], the court stated: "The weight of authority is that, absent some detrimental reliance by the defendant, the State may withdraw from any plea agreement prior to the actual entry of a guilty plea. [Citations.]"
Some courts have analogized plea bargains to contracts under civil law. In State v. Collins (1980) 300 N.C. 142 [265 S.E.2d 172, 176], the court stated: "When viewed in light of the analogous law of contracts, it is clear that plea agreements normally arise in the form of unilateral contracts. The consideration given for the prosecutor's promise is not defendant's corresponding promise to plead guilty, but rather is defendant's actual performance by so pleading. Thus, the prosecutor agrees to perform if and when defendant performs but has no right to compel defendant's performance. Similarly, the prosecutor may rescind his offer of a proposed plea arrangement before defendant consummates the contract by pleading guilty or takes other action constituting detrimental reliance upon the agreement. [Citations.]" In Reed v. Becka (1999) 333 S.C. 676 [511 S.E.2d 396, 402], the United States Supreme Court reasoned: "A plea agreement is only an 'offer' until the defendant enters a court-approved guilty plea. A defendant accepts the 'offer' by pleading guilty. Thus, until formal acceptance of the plea by the court has occurred, the plea binds no one, not the defendant, the State, or the court. [Citation.]" In United States v. Ocanas (5th Cir. 1980) 628 F.2d 353, 358, the United States Court of Appeal for the 5th Circuit applied similar reasoning: "[T]he realization of whatever expectations the prosecutor and defendant have as a result of their bargain depends entirely on the approval of the trial court. Surely neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea. Neither party is justified in relying substantially on the bargain until the trial court approves it. We are therefore reluctant to bind them to the agreement until that time. As a general rule, then, we think that either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court."
PLEA BARGAINING IN THE NIGERIAN CONTEXT
My view on this will be limited to responding to the arguments made in the press by the CJN for wanting to abolish the practice in Nigeria. As a matter of first impression, and with profound respect to the CJN, it was premature for the CJN to make his view public on the concept of “plea bargaining” when there is a reasonable probability that the issue of the breach of a plea bargain by a prosecutor or a defendant may be brought before the Supreme Court of Nigeria on appeal some day. It is totally untenable for the CJN to openly condemn the practice before it becomes an issue properly presented before the Supreme Court of Nigeria on appeal.
In condemning the practice of plea-bargaining in Nigeria, the CJN made reference to the “sneaky motive behind its introduction into our legal system, or its evident fraudulent application”. With profound respect to the CJN again, there is no factual basis for the claim that the doctrine was introduced into Nigeria by a sneaky motive. The position of NBA and NHRC that his claim did not fairly reflect the state of the law in Nigeria was sound. There are very old criminal statutes in Nigeria that describe the concept of plea-bargaining and provide for it without expressly using the phrase “plea bargaining”. See for instance, §180(1) of the Criminal Procedure Act and §76 of the Criminal Justice Law of Lagos State, 2007. However those statutes are moribund because the Nigerian criminal lawyers infrequently invoke those provisions in representing criminal defendants. Hence, the concept is unpopular even though it is in existence. I recalled that my professors who taught me criminal law at the University of Benin and criminal procedure at the Nigerian Law School never mentioned anything about “plea bargaining” because its usage was uncommon among lawyers before year 2005. Additionally, I represented many criminal defendants in Nigeria between 1994 and 2000 and I did not hear any lawyer or judge talk about plea -bargaining.
The enabling statute which created the EFCC in 2004 specifically breathed life into the dying concept of plea-bargaining. EFCC is empowered under §14  of its Act, to “ compound any offence punishable under the Act by accepting such sum of money as it thinks fit not exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.” Again, the enabling statute did not explicitly call the provision “plea bargaining”. The EFCC invoked the statutory provision to settle criminal cases involving two well-known former governors, among others. The governors agreed to return substantial portion of the money they stole from the public treasury in exchange for lesser sentences. Many Nigerians were appalled and felt that the ex-governors received “celebrity justice” in that EFCC did not seek the imposition of the maximum penalties prescribed for their offenses in a court of law unlike ordinary Nigerians. I believe that the CJN was referring to the settling of the criminal cases involving the two ex-governors when he said that the concept has “evident fraudulent application”. Again, if the CJN was dissatisfied with the way plea-bargaining was applied by the EFCC to those governors, the solution is not to abolish the concept but to provide guidelines for its invocation in the future. In the Nigerian context, it will be extremely difficult if not impossible for EFCC to recover monies stolen by public officials without plea-bargaining because the monies are kept in foreign bank accounts under fictitious names or in the names of other people. The laws of the foreign countries may effectively prevent the recovery of the stolen monies from the looters because EFCC will be required to trace the looters to the stolen monies in foreign accounts. While the EFCC may be able to prove that public fund has been misappropriated, it may not be able to prove the mechanism or method of the misappropriation and the place where the stole money is kept. Also, the EFCC may not be able to recover the stolen funds without the cooperation and confession of the looters. Even if EFCC is able to recover stolen funds from foreign bank accounts without the cooperation of the looters through plea-bargaining, it will be at considerable costs and expenses to the Nigerian government because it may have to secure the services of lawyers, private investigators and asset tracing experts in foreign countries where the monies are kept.
Additionally, the punishment provided for looting public treasury under Nigerian criminal statutes is grossly inadequate. § 98 of the Criminal Code Act provides seven years imprisonment for the punishment for corrupt public officials. §19 of the same Act provides that “When any person is convicted of an offence under section 98… the court may, in addition to or in lieu of any penalty which may be imposed, order the forfeiture to the State of any property which has passed in connection with the commission of the offence or if such property cannot be forfeited or cannot be found of such sum as the court shall assess as the value of such property, and any property or sum so forfeited shall he dealt with in such manner as the Governor may direct. Payment of any sum so ordered to be forfeited may be enforced in the same manner and subject to the same incidents as in the case of the payment of a fine”. (There other similar provisions in the EFCC Act and other federal law) In theory, the law appears to be adequate because it provides for recovery of the stolen asset in addition to actual jail term. In practice, the court and the police may not be able to enforce a forfeiture order made by a court of law pursuant to §19 if the stolen asset is in foreign countries. Let me illustrate: a former governor steals 5 billion dollars while in office and keeps the money in a bank account in the USA or UK under a fictitious name or the name of his foreign girlfriend. He is charged with embezzlement and corrupt enrichment in office and he is convicted of the crime. The court may impose the maximum sentence of seven years on him. If the court also invokes section 19 of the Act, it may order that the 5 billion dollars be forfeited to the government of Nigeria. How will the money be recovered? If the Nigerian government contacts the UK or USA’s government for assistance with the recovery of the stolen money, the governor’s girlfriend may hire a very good lawyer and claim that the money is an outright gift to her and that she has no knowledge that the money is stolen. Suppose the girlfriend has bought a private jet, yacht, jewels, expensive houses and stocks in the UK or USA with the money from sellers who has no knowledge of the source of the money and holds title in her name alone, the forfeiture order from the Nigerian court may not be enforced against her because her name does not appear on the forfeiture order. Additionally, an order made by a court of law in Nigeria is not directly enforceable in USA or UK unless the order has been registered through a cumbersome process. After registration of the order, it cannot be used to recover assets from the governor’s girlfriend because the order, on its face, apply to money but not assets. Suppose further that the girlfriend colludes with a corporation (company) in the United States to sue her for breach of contract or a tort claim in the amount of $5 billion before the Nigerian forfeiture order is registered in USA or UK and the corporation obtains a default judgment against her in that amount. The forfeiture order may not be enforced against the corporation unless the Nigerian government can demonstrate that the entire lawsuit and the default judgment were sham to defraud the Nigerian government. In the circumstances, it will cost Nigeria a lot of money to recover some of the stolen money from the governor. On the other hand, the EFCC can enter into a plea bargain with the governor as follows: The governor will serve only one year in jail if he returns all the 5 billion dollars he stole or five years in jail if he returns 3 out of the 5 billion dollars instead of spending seven years in prison. An ex-governor will not like to spend the maximum seven years under §98 in prison because of the horrible conditions of Nigerian prisons. He may therefore agree to return the entire 5 billion dollars to the Nigerian government in exchange for only one-year jail term. Thieves generally know where they keep stolen monies. If they cooperate it is easier to recover the stolen monies from them. If they do not cooperate, the stolen funds may never be recovered. In that case, once they serve the maximum time prescribed in law in jail, they may relocate to foreign countries and begin to enjoy the proceeds of their crimes. We certainly need plea-bargaining in Nigeria where the EFCC is convinced that it cannot recover stolen money from public officials facing criminal charges without their cooperation. Recovered money can be used to improve the welfare of Nigerians. If there is no plea-bargaining, the governor, in our example, will serve a maximum of seven years in prison and be released without the Nigerian government being able to recover the stolen money in spite of a forfeiture order. In my opinion, plea-bargaining will be a very powerful tool for combating corruption and embezzlement of public funds in Nigeria. It must not be eradicated.
The current incumbent President of the NBA recently stated that the judges are corrupt and that litigants use retired judges to bribe serving judges. The English judge who presided over the criminal trial of ex-governor James Ibori in UK said that the Nigerian judges’ attitude towards eradication of public corruption is “half-hearted.” In view of the hallowed position of the makers of those statements, the CJN is respectfully challenged to eradicate corruption from the judiciary at all cost. After all, a plea bargain entered into between a criminal defendant and the EFCC is not binding until a judge approves it. If the judiciary is not corrupt, the approval or disapproval of a judge to a plea bargain will effectively check any abuse of plea-bargaining by the EFCC.