FEATURE ARTICLE

Mazi Emmanuel OnyemaSunday, May 24, 2009
onyema_2010@yahoo.com
Abuja, Nigeria

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EFCC AND PLEA BARGAIN ISSUE IN NIGERIA: MATTERS ARISING

urrently, the Chairman of the Economic and Financial Crimes Commission, AIG Farida Waziri (Rtd) has been commenting against the plea deal or negotiated plea, otherwise known as plea bargain. This strategy was employed by the Commission to "punish" those who have openly and shamelessly pleaded guilty for selfishly helping themselves with the public and entrusted funds.


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What is plea bargain? Simply put, it is a quasi criminal judgment and/or an outright court verdict in a criminal case, whereby a prosecutor offers the defendant an opportunity to plead guilty on his own volition, based on a mutually satisfactory disposition to ensure that the accused pleads guilty to one of the counts he is being charged for a lesser punishment. In other words, the accused, having agreed that he has committed an offence, for some obvious reasons, pleads with the prosecutor that he should be charged in such a manner that he will not bear the full brunt of the offence(s) committed or be subjected to the rigors of court trial processes. In practice, it can occur at any stage of the criminal trial, that is, either prior to court trial or at any stage of the court trial but certainly before a verdict is given. It sometimes involves charging bargaining (negotiating on what count to be charged on), sentence bargaining (negotiating on the count to be sentenced on) and fact bargaining (agreeing on the facts to be concerned with during the trial). In whichever situation, both Parties usually agree that offences have been committed, but that there must be a waiver to make room for lighter punishment for some reasons.

According to the Legal historians, plea bargain dates back to the early 19th century in America, as an instrument of the State to promote social order necessary for social and political stabilization. What an elitist discretion over sentencing policy!

Ordinarily, one is presumed innocent until he pleads guilty or pronounced guilty as charged by a competent court, based on evidence before the court or as it circumstantially pleases the court. In each of the situations, the accused knows fully the charges against him and will be judged accordingly. At the end of the trial, if found guilty, may make a plea of mitigation, which if when accepted by the presiding judge, only allows his full punishment to be reduced. This is different from plea bargain, as erroneously being canvassed and interpreted presently in Nigeria. In certain countries, where plea bargain operates, proponents favour it, according to them, because it saves precious time for the judges, intends to decongest the Prisons, saves resources for the State, among others. But to the critics, their position is that any offence duly proved or agreed to have been committed deserves full wrath of the law.

In Nigeria, plea bargain, as an instrument of justice, crept into our legal lexicon 3 years ago. In fact, it was first mentioned during the trials of the retired Inspector General of Police, Mr Tafa Balogun and some ex-governors who were involved in financial and economic crimes. In the case of Balogun, he entered a plea bargain in view of his ill health during his trial. He was said to have agreed to forfeit money, stocks, and property worth N17 billion in exchange for mitigated punishment. He was being prosecuted by EFCC, then chaired by Nuhu Ribadu, at the Federal High Court, Abuja, for a 50 count charge of theft and money laundering involving over N13 billion and at the Abuja High Court for 92 count charge of gratification. According to newspaper reports, Balogun and the EFCC Counsels struck the plea deal because "the trial is bad for the both Parties"; whatever that means. The then Inspector General of Police, whom the EFCC recovered N17.7 billion from, handsomely helped himself with the Police funds to the tune of N13 billion, which he invested in Nigeria Breweries, First Bank, Union Bank PLC, Fountain Trust Bank and Guinness Nigeria Plc and bought landed properties at Park view estate Ikoyi, Victoria Garden City, Victoria Island, Garki, Wuse and Maitama areas of Abuja.

Tafa's case was quickly followed by that of D.S.P Alamieyesiegha, former Governor of Bayelsa State. The once strongman of Bayelsa politics embezzled so much that he was convinced that his State deserved a refund. He, accordingly confessed that he over looted and gentlemanly lured his Prosecutors, the EFCC, to a plea bargain deal. As a result of the deal, he forfeited some of his properties at V & A waterfront, Cape town, South Africa, at 32 Amazon Street, Maitama, Abuja, N1bn worth of shares in Former Bond Bank, $160,000 in account number 005482562491 with an American bank and N105 million in account number 201006285006 with former Bond bank. However, he justified his negotiated sentence or plea bargain by saying that " I have been through this journey since 15 January, 2005. I was brought into this country by the British government. I was kept with mad people. I was bleeding. The British people brought me here and what Obasanjo (former President) could do was to send a battalion of Army to take over the State Government in Bayelsa. Within this time, I have signed the contract of my life five times". As if that was not enough to convince the Judge to grant him plea bargain, he continued thus " I am 55 years old. I have lost my wife and children. I have gone through the shadows of death. I am carrying the matter which I am opposed to. If I am a young man, I would not have pleaded guilty to these charges because I could have defended myself. If I was much younger, this cannot be the case now" With these persuasions, aptly reinforced by his Counsel, Chief Solomon Okpoko, (SAN), he sealed the plea bargain deal which the EFCC lawyer, Rotimi Jacobs. The EFCC then, never opposed him.

In order to justify their position then, EFCC was alleged to have relied on section 14(2) of the EFCC (Establishment) , Act 2004, which states that "subject to the provision of section 174 of the constitution of the Federal Republic of Nigeria 1999 (which relates to the power of the Attorney-General of the Federation to institute, continue or discontinue criminal proceedings against any persons in any court of law (nolle prosequi), the Commission may compound any offence punishable under this Act by accepting sums of money as it thinks fit, not exceeding the sum of the maximum fine to which that person would have been liable if he had been convicted of that office" to give acknowledged looters of the Governments' treasuries a "soft landing" or " a slap of the wrist". Perhaps, judging from the experiences of Tafa and Alameiyesiegha, the ex-Governors who were being prosecuted after handing over in 2007, were alleged to have initiated plea bargain as a sure strategy of ensuring their freedom then. In order to buttress this, former Governor Lucky Igbinedion of Edo State whom the EFCC arraigned for looting billions of Naira, in the spirit of plea bargain, was asked to pay a paltry sum of N3.5M and walk away.

It is then, as a result of the foregoing that every right thinking Nigerian, should salute the courage and good sense of judgment of the current EFCC Chairperson, Madam Farida Waziri, for openly accepting that plea bargain is an insult to the Nigerians' sensibilities. Honestly, one can feel her genuine intention and disdain for plea bargain when she said "you cannot be using part of the public funds you stole to set yourself free and go home to enjoy the loot. Plea bargain is used in some developed countries of the World like United States and United Kingdom but that does not make it proper choice. I never like it (sic)". She further re-echoed the case of Chief Lucky Igbinedion, former Governor of Edo State, who after being tried for stealing billions of Naira, "the court eventually imposed a fine of N3.5M on him , which was paid on the spot there . . . we appealed against the case". She then unequivocally affirmed that "I will not go into plea bargain again". Even Ribadu objected to the idea initially until, perhaps, he was compelled to accept it. On hearing of plea bargain then, he said "you are talking about plea bargain, we are talking about a country that had never held any conviction of a single person for corruption in our history. But today, we are getting them convicted and punished and money returned, so how can somebody be talking about plea bargain". While accepting the negative psychological implication of plea bargain, a renowned jurist, Prince Bola Ajibola, a former judge of the International Court of Justice at the Hague, agreed that "the reading of it is that it will make people feel that I can steal money from Nigeria and I can use it to my own advantage left, right and centre once I can get into this plea bargain. It is something that is not just morally right. It is something that will induce corruption. Let those who are found guilty serve their terms. None is above the law". He maintained.

It is, in fact, heart-warming that the EFCC under Madam Waziri's leadership, has accepted the illogicalities embedded in the plea bargain doctrine, at least, as it affects Nigeria. In the first instance, based on the shameless disposition of the Nigerian public office holders to completely milk the country, even if plea bargain is the best in the advanced countries , me thinks that we are not developed enough to accept it in our criminal justice administration. In the present Nigeria, it reasonably appears that the primary aim of going into politics or seeking for public office is to amass wealth; more so, when known treasury looters go unpunished. As such, plea bargain will not only encourage corruption but will also constitute a financial conduit pipe for selfish and unscrupulous leaders to siphon public funds. Besides, in the said advanced countries, it is not strictly applied to protect looters of public funds and those who abuse public trust; rather, it is applied on observed pathetic, remorseful and unintentional cases/acts. Moreover, in those countries, any public Officer indicted or convicted oftentimes apologizes for wrong doing but in Nigeria, ex-convicts or indicted office holders are treated like heroes. For example, Chief Alamieyeseigha publicly celebrated his release from jail instead of hiding his face in shame.

The Nigerian public should also arise to support the EFCC in condemning plea bargain because of the observed idiosyncrasies of the beneficiaries of the said plea deal and those standing trial, especially, the ex-governors. It is a common knowledge that those who escaped being in jail, then, courtesy of the plea, are not only seen currently at the corridors of power but still have the influence and powers to dictate political bureaucracies both at the State and Federal levels of government in Nigeria. Those of them standing trials openly boast of their powers and contacts to, at worst, negotiate themselves out of severe court verdicts. Political intelligence and surveillance have also revealed that these same enemies of Nigeria, come 2011 political dispensation and even beyond, if not pardoned by then, will install their stooges, whom they can easily secure electoral tickets for and bankroll their campaign for positions of authority and power. The implication of this emerging dangerous political funding, is that criminals will continuously be perpetuating themselves in governance; thereby rubbishing our democracy and sustaining political corruption.

As a retired senior Police Officer, I am pretty sure that Mrs Waziri clearly understands the psyche and dispositions of criminals when she maintained that plea bargain can never be the best approach in treating the public office holders who loot treasuries entrusted on them. I believe her totally! Judging from the temerity with which public fund is being looted these days and the expenditure and life styles of the culprits, something more serious need to be done to deter others who intend to emulate plea bargain "beneficiaries". In modern crime management, all the experts in criminal justice system have agreed that only deterrent strategies that can prevent public Officers from staining their hands with the entrusted funds. For this national shame to be curbed, these known criminals, despite being ex-convicts, must, apart from forfeiting their loots, spend reasonable period of time in the jail houses. This will, despite the alleged comfort they may enjoy in the Prisons, deter them to a large extent from seeking offices for the purpose of enriching themselves with public funds. Based on empirical evidences, deprivation of associated freedoms and liberties involved in imprisonment will elicit the requisite deterrence. Mere persuasions and/or giving them soft landing will only encourage more havoc to the society. Besides, if they are not strictly sent to jail, our youths, who are leaders of tomorrow (assuming there is any tomorrow for them), based on precedent, will erroneously be following their footsteps.

It is pertinent to reveal, also, that the near secret manner with which the plea bargain is negotiated and secured does not help matters. Sadly enough, Nigerians only wake up to hear that the deal has been brokered. As a court process, its negotiation should be openly canvassed in the court. This will enable enlightened and informed Nigerians, perhaps, to make contribution(s) towards frustrating it.

Although, some social commentators have argued that is saves judicial time and other resources, plea bargain, currently in Nigeria, certainly does more harm and will continue to do so, if Nigerians and all the relevant Stakeholders fail to join the EFCC to influence public and policy makers' opinions to quickly discard it from our criminal justice system.

Though one is not holding brief for the EFCC Chairperson, but based on her observed focus and determination, it is commendable that she is becoming highly pragmatic in her job. Instead of waiting to receive complaints before carrying out investigations, EFCC is becoming strategic in carrying out its statutory responsibilities as enshrined in section 5(f) of its Act, which empowers it in the "adoption of measures which includes coordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes".

Recently, the Commission said that it will start carrying out assets forfeiture activities, security scrutiny on bank accounts and at the Corporate Affairs Commission. These strategic assignments, undoubtedly, will surely reveal many financial and economic crimes, usually perpetrated with the connivance of Officers of the concerned Organisations. It is equally worthy of mention that the Commission should beam its search light on public procurement corruption because all the monies being embezzled, diverted, misappropriated, laundered, amongst others, come from yearly appropriation, being expended from the public procurement of goods, works and consultancy services.

In recognition of their efforts so far, instead of always condemning the Commission, this writer is of the opinion that the public should examine their statutory and operational powers that may be affecting their performances. At the moment, the Commission operates under the Attorney General of the Federation (AGF), which may be part of their structural problem resulting to public criticisms. Also the mandate that it must submit the results of its investigations to the Presidency before prosecution, in all ramifications, cannot grant efficiency, effectiveness and the requisite independence to the Agency. Moreso the Board of the EFCC have more Federal government appointees, who are accountable to the Government. With all these operational bottlenecks and other Nigerian factors, much honestly cannot be expected from the Commission.

This is a clarion call for all the lovers of this country to do something, no matter how little, to help the Agency. This can be done now by making inputs to the amendment of the EFCC Act in a manner that will satisfy the yearnings and expectations of the general public by submitting memoranda in addition to advocacy visits during the public hearing at the National Assembly. That is, if our legislators will deem it necessary to do justice to the said amendment, in view of the cases of corruption and EFCC investigations arising from the purchase of vehicles, power probes, rural electrification and others scams involving some members of the National Assembly.

Lastly, despite all the blames being heaped on the Commission by some Nigerians, it is my candid view that the Commission should be encouraged. The Commission, no doubt, has its own challenges that may have hindered its performance which has drawn the attention of its critics. But one can imagine what the situation would have been, if it does not exist at all. The Commission, we should remember, is part and parcel of the Nigerian system that requires all hands to be on deck if it must be taken to the next level. Hence, instead of outright condemnation and calling of names, Nigerians should use the EFCC, ICPC and other related anti-corruption structures to contribute their quotas in fighting corruption in all perspectives in Nigeria.

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