Plea Bargaining Under Nigerian Law

Plea Bargaining Under Nigerian LawIntroduction

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”

General Rules of Originating Processes and Interlocutory Applications- A paper delivered by Munirudeen Liadi at the GTBank Legal Training Session

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Our Litigation Partner, Mr. Munirudeen Liadi, was a Guest Lecturer at the Legal Group Training Session of the Guaranty Trust Bank Plc held in October 2019, where he masterfully delivered a paper titled: “Instituting Matters in Court: Originating Processes and Basic Interlocutory Applications”. In his presentation, Mr. Liadi analyzed the critical nature and forms of originating processes in various Courts. He further elucidated on the salient provisions and relevance of the new Federal High Court Civil Procedure Rules, 2019 and the Lagos State High Court Civil Procedure Rules, 2019 vis-à-vis originating processes. Continue reading “General Rules of Originating Processes and Interlocutory Applications- A paper delivered by Munirudeen Liadi at the GTBank Legal Training Session”

Litigation and Dispute Resolution 2019- Global Legal Insights

GLI Litigation & Dispute Resolution

Efficiency and integrity of the legal process in Nigeria

Nigeria is unarguably the largest economy in Africa with an estimated population of about 200 million. The country operates a federal system of government, which allows devolution of power amongst the Federal Government and the 36 federating States. Patterned after the English legal system, Nigerian laws derive majorly from: (i) Nigerian legislation; (ii) received English laws (comprising Common law, equitable principles and Statutes of General application); (iii) Nigerian case laws (judicial precedent); (iv) Nigerian customary laws; (v) Islamic laws; and (vi) international laws and principles. The applicability of English laws and principles is subject to the provisions of Nigerian legislation and courts’ decisions. The Nigerian Court system is centralised with all appeals from State and Federal High Courts going to the Court of Appeal and then to the final Appeal Court being the Nigerian Supreme Court.

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Recent Spate of Refusal of Assent to Bills by the President

Recent Spate of Refusal of Assent to Bills by the President: Position of the Law vis-a-vis the Powers of the Nigerian National Assembly

In the recent past, the President of the Federal Republic of Nigeria, President Muhammadu Buhari GCFR, has refused to give his assent to several bills forwarded to his office for his approval by the National Assembly. The President’s refusal to assent to the bills has been a cause for concern to many Nigerians. Prominent among the bills to which the President refused assent are the Nigerian Film Commission Bill 2018, the Chartered Institute of Pension Practitioners of Nigeria Bill 2018, the Immigration Amendment Bill 2018, the Climate Change Bill 2018, the Digital Rights and Freedom Bill 2018, the Chartered Institute of Training and Development of Nigeria (Establishment) Bill 2018, the Nigerian Aeronautic Research Rescue Bill 2018, the Federal Mortgage Bank of Nigeria Bill 2018, the National Housing Fund Bill 2018, the National Institute of Credit Administration Bill 2018, the National Bio-Technology Development Agency Bill 2018 as well as the Ajaokuta Iron and Steel Completion Fund Bill. Continue reading “Recent Spate of Refusal of Assent to Bills by the President”

The Federal Competition And Consumer Protection Act, 2019: The Need For Inter-Agency Collaboration And Harmony

Historically, there has been a dearth of a comprehensive antitrust and competition legislation in Nigeria. Prior to the enactment of the Federal Competition and Consumer Protection Act, 2019 (“FCCP Act” or the “Act”), the Investment and Securities Act, 2007 (“ISA”) had some anti-trust provisions which gave the Securities and Exchange Commission (“SEC”) power to regulate competition in Nigeria. Before the FCCP Act, the ISA had wide antitrust provisions (when compared with other sector-based antitrust legislations) which mostly regulate SEC’s grant of consent to mergers between business entities. SEC could refuse consent to a merger, acquisition or takeover, on the ground that it is inimical to competition. It could, on the other hand, order the breakup of a company if its activities substantially lessen or prevent competition. Another instance of sectorial legislation with antitrust provisions is the Electric Power Sector Reform Act, 2005 which regulates the power sector. In addition, certain sector-specific regulations are also in force to govern competition within various sectors. However, to provide for an all-encompassing and comprehensive legislation to regulate competition and protect the interests of consumers across all sectors, the FCCP Act was enacted.

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EXAMINING GOVERNMENT POLICIES FOR THE DEVELOPMENT OF NIGERIA’S MARITIME INDUSTRY- MFON USORO

Examining Government Policies for the Development of Nigeria’s Maritime Industry was presented by Mrs Mfon Ekong Usoro at the 2nd National Convention of the Alumni of Maritime Academy of Nigeria Oron (AMANO). The convention was held at the Conference Centre, Naval Dockyard, VI on 09 November 2018.

 

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Examining Government Policies for the Development of the Maritime Industry- Mfon Usoro