By Alhussain Ibrahim, Esq.
The concept of plea bargain originated from the American jurisprudence and operates in Nigeria without any codified guideline. Gradually, plea bargain began to get recognition under our laws. One of the foremost legislations in Nigeria to institutionalise and codify plea bargain is the Lagos State Administration of Criminal Justice Law, 2011. Section 75 of the law provides thus:
“Notwithstanding anything in this law or any other law, the Attorney General of the State shall have power to consider and accept a plea bargain from a person charged with any offence where the Attorney General is of the view that the acceptance of such plea bargain is in the public interest, the interest of justice and the need to prevent abuse of legal process.” Furthermore, plea bargain was defined in the recent case of Albert v. FRN (2021) LPELR56144 CA as follows:
“A plea bargain is a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or sentence one of multiple charges in exchange for some concession by the prosecutor, usually, a more lenient sentence or a dismissal of the other charges. Plea bargain is the process whereby a criminal defendant and prosecutor reach a mutually satisfactory disposition of a criminal case, subject to the court’s approval. It can also be referred to as a plea agreement, negotiated plea or charge bargain.”
Upon the passage into law of the Administration of Criminal Justice Act 2015 (herein referred to as ACJA) by the National Assembly and its assent by the then President of Nigeria, plea bargain as captured in part 28 (section 270-277) of the Act got a wider and holistic recognition in Nigeria.
By the provision of section 2 of the Act, its applicability is limited to criminal trials for offences established by an Act of the National Assembly and other offences punishable in the FCT Abuja. This amongst other factors led to the agitation for the domestication of the Administration of Criminal Justice Act by States. Presently, more than 30 States have domesticated the ACJA.
Furthermore, plea bargain got wider acceptability in our criminal law when it was adopted by States that domesticated the ACJA. Gombe State equally adopted the concept of plea bargain with the coming into force of the Gombe State Administration of Criminal Justice Law, 2020 (herein referred to as ACJL). The ACJL came into force on 2nd October, 2021 and by section 500 repealed and replaced the Criminal Procedure Code Law.
By the provision of section 4, the applicability of the ACJL covers offences established by the law of the State House of Assembly and other offences punishable in the State. The provisions with respect to plea bargain are captured under Part 29 of the Law (section 286293). Section 286 of the Law provides as follows:
(1) Notwithstanding anything in this Law or in any other law, the Prosecutor may:
a) receive and consider a plea bargain from a defendant charged with an offence either directly from the accused or his behalf; or
b) offer a plea bargain to a defendant charged with an offence…
Plea bargain guidelines as captured in section 286 (1-17) of the Gombe State ACJL are in pari-materia with the guidelines of plea bargain provided in section 270(1-18) of the ACJA. However, section 270 (18) of the ACJA was the only sub-section not replicated in the ACJL.
Section 286 (2) of the ACJL stipulates that plea bargain may be entered into by the parties during or after presentation of the evidence of the prosecution but before the presentation of the evidence of the defense. The sub-section further stipulates that in any offence affecting human body, the consent of the victim must first be sought and obtained before entering into a plea bargain.
Section 286 (7) of the ACJL also stipulates that an agreement between the parties shall be reduced to writing, signed by prosecutor, defendant, his legal practitioner and the interpreter where applicable. Section 286(8) of the ACJL, restrained the presiding Judge or Magistrate from participating in the discussion of the plea bargain agreement. Section 286(9) of the ACJL mandate the prosecutor to inform the court that the parties have reached an agreement and the court shall inquire by asking for confirmation of the agreement by the defendant. Section 286(10)(11) and (12) of the ACJL set out the duties and what is expected from the presiding Judge or Magistrate.
It is the duty of the prosecutor to ensure that any money, asset or property to be forfeited or returned under the plea bargain are transferred to the victim, his representative or any other person entitled. See section 286(13) of the ACJL. Wilful obstruction of the vesting or transfer of any money, asset or property under the ACJL is an offence and liable on conviction to 5years imprisonment without an option of fine. See section 286(14) of the ACJL.
Previously, there are limited judicial authorities on the applicability of plea bargain in Nigeria. However, as a result of coming into force of the ACJA 2015 and its subsequent domestication by States, cases in which plea bargain has been explored are on the rise continuously. In the case of Agbi v. FRN (2020) LPELR-50495 CA, the Court of Appeal set aside the sentencing of the trial court because without informing the Appellant as prescribed under section 270(11)(c) of the ACJA, the trial court imposed a sentence of 3years imprisonment on the Appellant, which is greater than the one month imprisonment agreed by the parties in the plea bargain agreement. In turn, the Court of Appeal sentenced the Appellant to one month imprisonment as agreed by the parties in the plea bargain agreement.
It is imperative to note that section 286(11)(c) of the Gombe State ACJL is a replica of section 270(11)(c) of the ACJA 2015. Section 286(11)(c) of the ACJL provide that, where a Court is inclined to imposing a sentence heavier than what is agreed in the plea bargain agreement, the defendant shall be informed and where the defendant/convict has been informed of the heavier sentence, section 286(15) of the ACJL supplied two (2) options. The defendant/convict can either abide by the plea of guilt as agreed upon and the court shall proceed with the heavier sentence or withdraw from the plea to the agreement which will culminate into transfer of the case to start de-novo before another Judge or Magistrate. The conditions for trial de-novo are outlined in section 286(16) of the ACJL.
Section 286(17) prevents a person convicted and sentenced under subsection (1) of section 286 of the ACJL from been brought to court again on the same facts for greater offence earlier charged, to which he had pleaded to a lesser offence. Some of the advantages of plea bargain include:-
i. The defendant can avoid the time and cost of defending himself at trial, the risk of harsher punishment, and the publicity the trial will involve.
ii. The prosecution saves time and expense of a lengthy trial. iii. Both sides are spared the uncertainty of going to trial.
iv. The court system is saved the burden of conducting a trial on every crime charged. See the case of Igbinedion v. FRN (2014) LPELR-2
In conclusion, the concept of plea bargain though imported into our criminal jurisprudence is now recognised under our laws. This paper though not exhaustive, is expected to provoke thoughtful discussions and comments on the topic. It is also proposed that for an enhanced practice of plea bargain, necessary modalities should be put in place in order to prevent abuse of the process. There should be persistent stake-holders engagement on how to enhance the justice delivery system. Nevertheless, plea bargain can be explored in appropriate circumstances considering the advantages of the process, some of which are enumerated above and bearing in mind the interest of justice, public interest and public policy.
- Administration of Criminal Justice Act, 2015
- Lagos State Administration of Criminal Justice Law, 2011
- Gombe State Administration of Criminal Justice Law, 2020
- Coker, O. (2010). Plea Bargaining, A Developing Trend in the Criminal Justice System. International Law Office. http://www.internationallawoffice.com
- Mordi, C. A. (2018). The Use of Plea Bargain in Nigerian Criminal Law. Beijing Law Review, 9, 153-161.
- Oladele, K. (2010). Plea Bargaining and the Criminal Justice System in Nigeria. Vanguard Newspaper: http://www.vanguardngr.com
SOURCE: LOYAL NIGERIAN LAWYER