By Edeh Samuel Chukwuemeka
With population growth and the attendant civilization, new ways of criminal machinations keep emerging. It would therefore, not be incorrect to say that crimes and criminality are on the increase. Our courts, and in general the criminal administration system are overwhelmed by the plethora of criminal cases that grace their floors on a daily basis. Consequently, our prisons are congested with number of inmates, with many awaiting trial.
Based on a 2016 data, Lagos State has the highest number of prison inmates’ population. The state recorded 7,396 prison inmates population as against a prison capacity of 3,927, closely followed by Rivers and Kano States with 4,424 and 4,183 prison inmates population. It was also reported that the Kirikiri Prisons in Lagos, which was built to accommodate 1,700 inmates, had 3,553 as of June 2017, over-shooting its capacity by 1,853 inmates. The Nigerian Prisons Service (NPS) Controller-General, Ahmed Ja’afaru, bemoaning the situation said that a total of 68,250 people were behind bars in Nigeria. However, only 32 per cent (or 21,903) of the inmates had been convicted. This means 46,351 people (or 68 per cent), who are awaiting trial put the system under avoidable stress.
Recently, Lagos State Government has activated moves to considerably bring down the number of inmates awaiting trial in prisons across the State through the implementation of the plea bargain aspect of the Administration of Criminal Justice Law 2011 (ACJL).The purpose of this paper is to discuss the concept of plea bargaining as a veritable tool in the administration of criminal justice in Nigeria.
MEANING OF PLEA BARGAINING
A plea is the response that a person accused of a crime gives to the court when the offence with which he is charged and which is contained in the charge sheet or information is read to him by the court. In general, the accused person could plead guilty or not guilty to the crimes. Where the court takes his plea and the court after trial is satisfied that the prosecution has proved his case beyond reasonable doubt, the court would proceed to sentence the accused person accordingly. On the other hand, plea bargain means a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of the multiple charges in exchange for some concession by the prosecutor; usually a more lenient sentence or a dismissal of the other charges. Section 494 of the Administration of Criminal Justice Act 2015 defines plea bargain as;
The process in criminal proceedings whereby the defendant and the prosecution work out a mutually acceptable disposition of the case; including the plea of the defendant to a lesser offence than that charged in the complaints or information and in conformity with other conditions imposed by the prosecution, in return for a lighter sentence than that for the higher charge subject to the Court’s approval.
In simple terms, it is an agreement in criminal trials between the prosecutor and the accused person to settle the case in exchange for concessions. It could take the form of a Charge Bargain, Count Bargain or Sentence Bargain.
PROCEDURE OF PLEA BARGAINING; A CUE FROM LAGOS STATE
Generally, criminal procedure encompasses the laws and rules governing the mechanisms under which crimes are investigated, prosecuted, adjudicated, and punished. In other words, it is a manual of events that apply from the apprehension, trial and punishment of an accused.
The duration of criminal procedure coupled with the poor performance of the institutions in the criminal justice system in Nigeria has led to dawdling of criminal investigations and trials. The effect of this is that many suspects are arrested and detained without trial while some others are incarcerated for a long period of time due to the slow pace of criminal investigation or trial in Nigeria.
The nature of plea bargain can go a long way in decongesting prisons in Nigeria and foster a democratic system. This is because its procedure is quick as it allows parties involved including the victim to reach an agreement without going through the rigors of criminal trial. Commendably in Lagos state, the plea bargaining agreement is provided for under ACJL and has no limitation to any offence or to any person. Thus, a prosecutor can reach an agreement with an accused person wherein he will be given a reduced sentence, count or charge.
Under the ACJL, the prosecutor may only enter into plea bargaining agreement after consultation with the police officer responsible for the investigation of the case and the victim if reasonably feasible; and with due regard to the nature of and circumstances relating to the offence, the defendant and the interest of the community.
When the agreement is in progress, the prosecutor if reasonably feasible shall afford the complainant or his representative the opportunity to make representations to the prosecutor regarding.
a. The contents of the agreement; and
b. The inclusion in the agreement of a computation or restitution order.
Where a plea agreement is reached, the prosecutor shall inform the court of the agreement and the judge or magistrate shall inquire from the defendant to confirm the correctness of the agreement. If the answer is in the affirmative, the presiding judge or magistrate shall ascertain whether the defendant admits the allegations in the charge to which he has pleaded guilty and whether he entered into the agreement voluntarily and without undue influence. The court after satisfying itself on all of the foregoing will do one of the following:
a. Convict the defendant on his plea of guilty to the offence as stated in the charge and agreement
b. If not satisfied, the court will enter a plea of not guilty and order that the trial proceed.
Significantly, the presiding judge or magistrate before whom criminal proceedings are pending shall not participate in the plea bargaining agreement. However he can give relevant advice to them regarding possible advantages of discussions, possible sentencing options or the acceptability of a proposed agreement.¹³ But in sentencing the defendant after the conviction, the judge or magistrate is to consider the sentences agreed upon in the plea agreement. If the sentence is considered appropriate, then the agreed sentence would be imposed on the defendant. However if the court decides that the defendant deserves a heavier sentence, the defendant shall be informed. Upon the defendant being informed, the defendant has two options. One, the defendant can abide by his plea of guilty as agreed upon and agree that subject to the defendant’s right to lead evidence and to present arguments relevant to sentencing, the presiding judge or magistrate proceed with the sentencing. The second one is that he withdraws from his plea agreement in which event the trial shall proceed de novo before another presiding judge or magistrate. Where the trial proceeds de novo before another presiding judge or magistrate, the following must be observed
a. No reference shall be made to the agreement
b. No admissions contained therein or statements relating thereto shall be admissible against the defendant; and
c. The prosecutor and the defendant may not enter into similar plea and sentence agreement.
ESSENTIAL INGREDIENTS THAT MUST BE PRESENT IN A PLEA BARGAIN AGREEMENT
A plea bargaining agreement must contain the following:
a. The agreement must be in writing and contain the following specifics or state
i That the defendant has been informed that he has a right to remain silent;
ii. Also he has been informed of the consequences of not remaining silent
iii. That he is not obliged to make any confession or admission that could be used in evidence against him.
b. The full terms of the agreement and any admission made must be stated; and
c. The agreement must be signed by the prosecutor, the defendant, the legal practitioner and the interpreter (if used).
Plea bargain has over time been recognised as the most useful means of quick disposal of criminal trials in our criminal justice. They include the fact that the accused can avoid the time and cost of defending himself, the risk of a harsher punishment, and partially eliminate the publicity the trial will involve. It also saves the prosecution time and expense of a lengthy trial, and both parties are spared the uncertainty of going to trial. Ultimately, the court is saved the burden of conducting a trial on every crime charged.
Those against the concept have rightly argued that it could be prone to abuse if not well regulated. For instance, in the case of the defunct Oceanic Bank Managing Director, Mrs Cecilia Ibru, who was accused of stealing over N190 billion. She entered a plea bargain with the EFCC. She was convicted on 25 counts of fraud, ordered to refund only N1.29 billion and sentences to six months imprisonment part of which she allegedly spent in a Highbrow Hospital. This has been seen by many as a mere “slap on the wrist”.
It is our view that despite the inherent fears and reservations some people may nurture with the proposal by the Lagos state government to utilize plea bargain, there is no doubt that the desirability of plea bargain in prison decongestion out-ways its undesirability, thus other states in Nigeria should adopt similar approach. However, that is not to play down the need to take necessary stringent measures to prevent abuse of the process by prosecutors.
Finally, the ultimate card lies with the judiciary as the law allows them to consider sentence agreed upon and accept or refuse such sentence where necessary. Thus, judges and Magistrates should be more proactive and take all necessary steps to curb any attempt to abuse plea bargaining.
Samuel is a Law Student from the University of Nigeria, Nsukka
Prison Statistics: Prison Population by Total Detainees, Prison Capacity and Number of Un-sentenced Detainees by State and Year and Prison Inmate Population by Gender 2011-2016
<https://www.proshareng.com/admin/upload/reports/10669-NBSPRISONFULLREPORT201120 16-proshare.pdf> accessed 14 June 2019.
<https://bscholarly.com/a-day-in-the-life-of-a-lawyer-daily-tasks-lawyers-go-through/> accessed 14 June 2020.
<https://bscholarly.com/why-is-democracy-the-best-form-of-government/> accessed 14 June 2021.
Prison Congestion: Acting on Buhari’ <https://punchng.com/prison-congestion-acting-on-buharis-alarm/> accessed 14 June 2019.
O Olayanju, ‘The Relevance of Plea Bargaining in the Administration of Justice System in Nigeria’ [December 2011/January 2012] (VIII) (2&3) LASU Law Journal 35
<http://www.lasu.edu.ng/publications/law/oluseyi_olayanju_ja_1.pdf> accessed 14 June 2019.
B Garner, Blacks Law Dictionary (8ᵗʰ Edition, USA: West Publishing Company 2004) 1190.
ACJL, s 76(2) (a) & (b).
The prosecutor for the purpose of the foregoing provisions (s. 75 & 76) means a LAW OFFICER; see ACJL, s 76(11).
ACJL, s 76(3).
ACJL, s 76(6).
ACJL, s 76(7).
ACJL, s 76(7) (a) & (b).
ACJL, Section 76(5). ¹⁴ACJL, Section 76(8) (a) . ¹⁵ACJL, Section 76(8) (c).
ACJL Section 76(9) (a) & (b).
ACJL, Section 76 (10) (a)-(c).
ACJL, Section 76(4).
FRN v Lucky Igbinedion  LPELR – 22760 (CA), Justice Helen Ogunwumiju listed the advantages of plea bargains.
ACJL, s 76(8); ACJL, s 367(9).