Introduction

The usual outcome of ‘guilty’ or ‘not guilty’ and or ‘sentencing’ in a criminal trial which was largely determined by the legal principles of ‘proof beyond reasonable doubt’ and ‘presumption of innocence’ has been resolved by the now common aspect of a negotiated agreement by parties to the criminal proceedings. In real times, parties’ concession underlies the basis for a successful plea bargain to bridge the gap in circumstances where the prosecution is unable to procure compelling and conclusive evidence against the accused or co-accused necessary for the Court’s finding of ‘guilty’ and gives an opportunity to an accused persons to elect not to proceed with the trial.

A Plea bargain in ordinary parlance is a negotiated term of settlement in criminal trials between the prosecution and the accused, wherein the accused pleads guilty to a lesser offence or reduced charge in exchange for a reduction in sentence or dismissal of the charges,[1] which is finally accepted by the Court. Simpliciter, plea bargaining means a ‘conviction without trial.’ There are different types of plea bargain. Most specifically, are the Charge bargain in which a prosecutor agrees to drop some of the counts or reduce the charge to a less serious offence in exchange for a plea of either guilty or no contest from the Defendant. The second type of bargain is a plea bargain in which a prosecutor agrees to recommend a lighter sentence in exchange for a plea of either guilty or no contest from the Defendant.[2] There is also a type of plea bargain called the count bargain, in which a Defendant who is faced with multiple charges will be allowed to plead guilty to fewer counts of the charge. This is however not a common form of plea bargain as it only applies to Defendants who are faced with multiple charges.[3]

Plea Bargain – Historical Background

The origin of Plea Bargain could be traced to the American legal system in the eighteenth century. It began by convention but after it was accepted by the Courts, it became entrenched in the Federal and state criminal procedure rules.

The concept of ‘plea bargain’ achieved its global recognition in 1970 in the landmark case of Brady v. United States,[4] by the Supreme Court of the United States of America where Brady who pleaded guilty to a kidnaping charge in violation of 18 U.S.C. § 1201(a) and whose sentence was 50 years imprisonment, was later reduced to 30.

This was adopted due to the adversarial nature of the United States’ judicial system which places the judges as an umpire, in which they are completely dependent upon the parties to develop the factual record and cannot independently discover information to assess the strength of the case against the Defendant.  There are several cases where the US Courts have given full effect to plea bargain and as at today, 95% of criminal cases in the United States of America have been resolved by plea bargains.[5]

Plea bargain as a concept was not known in Nigerian Criminal Justice jurisprudence until 2004. It became known and applied with the establishment of the Economic and Financial Crimes Commission (EFCC) Act following increased level of corruption, as the concept was provided for under Section 14(2) of the EFCC Act. This concept of Plea Bargain was also boldly institutionalised by Lagos State House of Assembly in the Administration of Criminal Justice Law 2011, Laws of Lagos State.[6]

Plea Bargaining under the EFCC Act

Section 14(2) EFCC Act empowers the commission (subject to the prosecutorial powers of the Attorney-General under Section 174 of the Constitution to institute, continue or discontinue criminal proceedings against any persons in any court of law), to compound any offence punishable under the EFCC 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. This discretionary power given to the EFCC coupled with the authority to compound offences exemplify the proposed concept of plea bargaining under the Nigerian law.  This provision has been given full interpretation and application by the Courts in several high-profile cases.[7]

However, the Economic and Financial Crimes Commission (EFCC), has been criticised for this provision and it has been termed as “smuggling” the plea bargain concept, which has been described as dubious into our legal system to prosecute public officers involved in money laundering and looting of the public treasury.[8] It has also been described as corruption to bring plea bargain into the law of Nigeria.[9]

At a cursory look at the provision, one may argue rightly that there is no express or implied mention of plea bargain under Section 14(2) of the EFCC Act and as such, what the section envisages is “compounding of offences’ which is an act in which a person agrees not to report the occurrence of a crime or not to prosecute an accused in exchange for money or other consideration. This is not the same as plea bargain. The Section does not show the nature and type of the Plea Bargain neither does it show the stage of the proceedings the bargain may be initiated. There is also no laid down procedure or safeguards for Plea Bargain and such agreement as envisaged under the EFCC Act does not necessarily culminate in a judgment neither does it lead to conviction nor sentencing. It is to be noted that compounding of a felony is an offence in itself.[10] It may also be argued that the purport of the EFCC Act may be the concept of withdrawal of Compliant under Section 355 of the ACJA which provides that where a complainant at any time before a final order is made in a case, satisfies the court that there are sufficient grounds for permitting him to withdraw his complaint, the court may permit him to withdraw the complaint and shall thereupon acquit the Defendant. It may also be argued to mean reconciliation as provided under Section 23 of the High Court Law of Lagos State, 2019 which provides that in criminal cases, the High Court may encourage and facilitate the settlement in an amicable way of proceedings for Common Assault or for any other offence not amounting to a felony and not aggravated in degree, on terms of payment of compensation or other terms approved by court. Continue reading “Plea Bargaining Under Nigerian Law”