By Kayode Oladele
On October 8, 2010, the former Chief Executive Officer of Oceanic Bank International Nigeria PLC, Mrs. Cecilia Ibru was sentence to eighteen months imprison by the Federal High Court Lagos, Nigeria for committing various economic and financial crimes.
The Economic and financial Crimes Commission, EFCC, had charged her with a 25 count criminal information bothering on financial crimes before the Court. However, she entered into a plea bargain with the prosecution and pleaded guilty to a lesser three-count charge. The Court thereafter, convicted Ibru on the three-count charge and ordered the forfeiture of her assets amounting to about N191billion. She was sentenced to six months on each of the three counts which are to run concurrently. In effect, Mrs. Ibru would only spend six months in jail.
Few years ago, former Governor Alamieyeseigha of Bayelsa State was sentenced to 12 years in prison on a six -count charge that bothered on corruption and other economic offenses. He was sentenced two years on each count but all sentences ran concurrently. In accordance with the Criminal Procedure, the sentences ran from the day he was arrested and detained. He was arrested and detained in 2005.
In order to receive a lighter sentence, the former Governor entered into a plea bargain with the EFCC, gave up his right to trial and pled guilty to the charges. Rather than serving a prolonged prison term if convicted, he accepted the EFFC’s offer of guilty plea. However, because he had almost completed two years in jail before accepting the bargain, he was released few days after his conviction by the Court.
Expectedly, the release of the former Governor as a result of the plea bargain drew a lot of sharp criticisms from the general public and some notable members of the Nigerian Bar Association, NBA. Many raised objections to the plea bargain because they felt that the offer and the subsequent conviction and release were nothing but a slap on the wrists for such a very serious crime.
They felt also that the whole process was meaningless and unnecessary. Overall, the critics who included a one-time Justice of the World Court believed that plea bargaining and the weightless conviction sent a wrong kind of message for such a serious crime. They also viewed it as a way of letting criminals off lightly.
Other beneficiaries of plea bargaining in Nigeria included Tafa Balogun, the former Inspector- General of Police and Mr. Lucky Igbinedion, the former Governor of Edo State. The above example of plea bargaining points out the significance of the new process in Nigeria’s criminal justice system and what to expect in the years to come. Even though, it was forbidden in most of Europe a long time ago, plea bargaining has steadily inched into the criminal justice systems of several countries in recent times. While it may be new to Nigeria’s justice system, the process is now very popular in other common law countries.
An important aspect of plea bargain is that it usually gives a defendant lighter penalty than he would receive if he was found culpable of all charges after a full trial. Most defendants face a 90 percent chance of conviction if they go to trial. Few years ago, I was a co-counsel in a celebrated case in the U.S on a 19 count criminal indictment, one of which carried a maximum punishment of life imprison including forfeiture of our client’s property. Our client would also forfeit cash worth over one million U.S Dollars found in his residence.
Using the local rules and practice of the Federal Rules of Criminal Procedure, we entered into a negotiated agreement with the U.S Attorney’s office as a result of which seventeen out of the nineteen charges including the ones with severe penalties were dismissed. And in the spirit of fairness, a portion of the cash amount found in his house was also released to his family. In return, our client pled guilty to the remaining two charges which obviously, carried much lighter penalties and conviction.
When plea bargaining, a prosecutor and defendant may enter into an agreement whereby the defendant pleads guilty and the prosecutor offers either to move for dismissal of a charge or charges, recommend to the court a particular sentence or agree not to oppose the defendant’s request for a particular sentence, or agree that a specific sentence is the appropriate disposition of the case. A prosecutor can agree to take any or all of these actions in a plea agreement. In most cases, plea bargaining must take place before trial unless the parties show good cause for the delay.
While plea bargaining is a new trend in Nigeria, the practice is considered a common phenomenon in the U.S legal system and it can be argued that the American criminal justice system would simply cease to function without plea bargaining.
According to Dirk Olin, plea bargain is a prosecutorial tool used only episodically before the 19th century. “In America,” Fisher says, ‘’it can be traced almost to the very emergence of public prosecution. Although not exclusive to the U.S., it developed earlier and more broadly here than most places”. “But because judges, not prosecutors, controlled most sentencing, plea bargain was limited to those rare cases in which prosecutors could unilaterally dictate a defendant’s sentence.
Not until the crush of civil litigation brought on by the explosion of personal injury cases in the industrial era did judges begin to appreciate the workload relief plea bargaining promised”. “In other words, plea bargaining is arguably another outgrowth of late-19th-century industrialization”. (Dirk Olin, Plea Bargain, The New York Times Magazine, September 29, 2002).
Black’s Law Dictionary defines it as follows: “[the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.”