Anti-graft war and plea bargain mechanism: What should be done?

President Muhammadu Buhari administration has distinguished itself  in its efforts to rid the country  of corruption and make it safe through accountability, transparency and the drive to recover looted funds.   However, the legal concept of plea bargain seems to have introduced a conundrum of some sort into the process. Most people fingered by law […]

President Muhammadu Buhari administration has distinguished itself  in its efforts to rid the country  of corruption and make it safe through accountability, transparency and the drive to recover looted funds.
  However, the legal concept of plea bargain seems to have introduced a conundrum of some sort into the process. Most people fingered by law enforcement agencies to be involved in the massive looting of the commonwealth of the nation now seem to be considering the option of parting with their loots as a substitute to the rigour of the process of a long-winding trial and most likely conviction.
Thus, the logic is “since the government wants to recover the loot, why can’t I give a sizeable percentage of what I am being accused of looting and avoid the embarrassment of arraignment, trial, conviction and sentencing?” This logic infers that while the accused are admitting guilt for their alleged looting by agreeing to return ‘a part’ of the looted fund, they are free from serving terms for their criminal offence.
What plea bargain entails
A general consensus among legal scholars seems to define plea bargains as agreements between defendants and prosecutors where defendants agree to plead guilty to some or all of the charges against them in exchange for concessions from the prosecutors.
In his book “Practical Approach to Criminal Litigation in Nigeria (Pre-Trial & Trial Proceedings)”, J.A. Agaba observes that to have a plea bargain, there must be: a prosecutor and an accused person/defendant; a negotiation between the prosecutor and the accused person/defendant; a negotiation which must have ended in an agreement with concessions and compromises from the prosecutor and the accused/defendant; a plea, that is, a plea of guilty to the charge or to a lesser charge; the involvement of the court; and an acceptance of the plea by the court.
It is common knowledge that criminal trials in Nigeria particularly corruption cases have witnessed undue delays occasioned by either interlocutory applications or delay tactics employed by defence lawyers to the end that cases last for over 10 years in court.
The attendant result is that witnesses cannot be reached because they have died, relocated or forgotten facts of the case. This scenario was witnessed in the trial of former governor of Taraba State, Jolly Nyame, before an FCT High Court sitting in Gudu. Prosecution counsel, Rotimi Jacobs (SAN) told the court that due to the length of the trial (since 2007), one of the prosecution witnesses could not be reached as he was no longer with the Economic and Financial Crimes Commission (EFCC).
The Administration of Criminal Justice Act (2015) generally made provision for plea bargain in Part 28. Most specifically in Section 270 (1) it says in part that “the Prosecutor may receive and consider a plea bargain from a defendant charged with an offence either from that defendant or on his behalf; offer a plea bargain to a defendant charged with an offence.”
 Who wants plea bargain?
Several individuals that are being investigated or have been fingered by law enforcement agencies to have participated in the grand looting of the funds of the country have reportedly already started negotiations to institute the plea bargain mechanism.
According to reports, former Chief of Air Staff, Air Marshal Adesola Amosu (rtd) and 10 others facing a N22.8 billion fraud trial are in talks with the EFCC to enter plea bargain with the federal government.
Amosu is standing trial alongside former Chief of Accounts and Budgeting, Vice Marshal Jacob Adigun and former Director of Finance and Budget, Air Commodore Gbadebo Olugbenga, all of the Nigerian Air Force (NAF), and eight private firms.
Another former Chief of Air Staff, Mohammed Dikko Umar, who was arraigned before Justice Binta Nyako of the Federal High Court, Abuja, on a seven-count charge bordering on money laundering, criminal breach of trust and corruption of about N9.7 billion, was reported to have also indicated willingness to enter plea bargain.
Most notably, former National Publicity Secretary of the Peoples Democratic Party (PDP), Olisah Metuh, was also reported to be seeking plea bargain after he had been arraigned in court and, went on to open his defense (which is contrary to the condition of entering plea bargain in Section 270 (2) of ACJA, 2015).
Metuh reportedly offered to return the N400 million he got from the Dasuki largesse because he “did not know the source of the funds”, but reports say the EFCC is laying stringent conditions before him. A cartoonist recently joked that EFCC is requesting Metuh to vomit the statement he allegedly wrote, tore and ate in January as a condition for his plea bargain.
Several media reports quoted an inside source at the EFCC to have confirmed that the agency has been apprised of these pleas.
 “We have formally received letters of plea bargain from three accused persons – Metuh, Umar and Amosu – we are studying their terms. We may enter into a plea bargain with the accused persons if it will serve the public interest. The interest is getting back the stolen funds. If they can fulfill this condition (public interest), we may accept their offers,” the source said.
Lawyers react
In an interview with Daily Trust, the immediate past chairman of the Council of Legal Education and former president of the Nigerian Bar Association, Chief OCJ Okocha (SAN), observed that instituting the plea bargain mechanism into the fight against corruption would be abused and misapplied. In his words: “Personally, I do not believe in plea bargains. The law must be definitive in its stipulations, and in its application. Nigeria still has the great problem of corruption, and plea bargain, as a mechanism for punishment of criminal offenders, will be abused and misapplied by the criminal elements in the justice delivery system.”
A legal practitioner in Abuja, Nureni Sulyman, submitted that, “A situation where they (the accused) agree to return the looted funds back to the coffers of the country notwithstanding, they should still be punished so that it will serve as a deterrent to others. We will not move forward in this country if we are to just collect the money and allow them to go free.”
 He, however suggested that the punishment should be lesser than what would have been applicable where the accused did not enter into plea bargain.
A representative of the Lawyers Initiative for Good Governance in Nigeria, Barrister Edward Omaga, in a chat with Daily Trust said, “As far as we are concerned in this matter, the issue of plea bargain that the federal government is doing with these people is not encouraging us; it is not going to serve as proper deterrence to would-be offenders in Nigeria.”
He went further to say: “Our position has always been even when the accused returns the loot, such a person should still have a taste of jail. A common thief is sent to jail without the offer of plea bargain, so the fact that these high profile accused enter into plea bargain should not exempt them from facing conviction and being sent to jail.”
Festus Keyamo, a lawyer and human rights activist who is the prosecuting counsel in the matter against the former governor of Imo State, Ikedi Ohakim, believes that it is investigation that allows the state to build up an impeccable case against them in the first place and this forces them to make a plea bargain.
 “The real issue about the jurisprudence of imprisonment is not punishment, it is information, it is not to punish the flesh, but having recovered the properties from the person, and his family name has been rubbished in public and in the mud, which is even worse than imprisonment. Look at people like Tafa Balogun who also went by the way of plea bargaining, he cannot show his face in the public again, so people need to understand the jurisprudence of punishment,” he said.
What should be done?
While some Nigerians believe some of those accused should be allowed to face trial and get the maximum convictions that apply to them, some however feel the trial would only lead to some form of prosecution that will lead nowhere but which would also further deplete state funds being expended on trial.
Without doubt, the concept of plea bargain is expected to enhance speedy dispensation of justice, however the prosecutor who represents the interest of the state as well as that of the victim is expected to play according to the rules bearing in mind the interest of justice, public interest and public policy.
Conclusively, the mechanism must be made open and accessible to all, regardless of their economic status, political, ethnic and religious affiliation.