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AN APPRAISAL OF THE APPLICATION OF PLEA BARGAINING PROCEDURE IN NIGERIAN CRIMINAL JUSTICE SYSTEM
ABSTRACT
This project titled”An Appraisal of the Application of Plea Bargaining Procedure inNigerian Criminal Justice System” is aimed at ascertaining the applicability of the concept of plea bargain in the penal system being that it is a novel phenomenon in the general Criminal Justice System despite the fact it is holding sway in some developed criminal justice jurisdictions like the United States of America for example. The visible application of the concept into the Nigeria Criminal Justice System by the Economic and Financial Crimes Commission with the provision of S. 14(2) of the EFCC Act, 2004 which is to the effect that the commission may compound any offences punishable under the act by accepting such sums of money as it thinks fit exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence. It is against this backdrop that the objective of this research is built on analyzing the concept and practice, of plea bargain in Nigeria with a view to clearing the controversy surrounding its legality and by so doing an examination of the practice of the concept in other jurisdictions are mentioned. It is noteworthy to be mentioned that the penal code and the criminal code as applicable in the northern and southern Nigeria respectively do not cover the subject mater of plea bargain whatsoever. The objective of this research therefore, is to identify the mode of practice of plea bargaining in Nigeria and the inadequacies of the law regulating the subject mater accounting for the controversy and to finally proffer measure. Measure needed for the proactiveness of the law where necessary so as to meet up with the unchallenged practices in other jurisdictions. It is provoking intellectual debates for and against it being that there is no clear federal legislation on the subject matter other than the administration of Criminal Justice Law of Lagos state. It is against this backdrop that the objective of this research is built on analysing the concept and its practice in Nigeria with a view to clearing the controversy surrounding its legality in Nigeria. The writer also took time to look into the Practice if plea bargain in other jurisdictions. The writer also had a look into the penal code and the criminal code as applicable in the northern and southern Nigeria respectively to with a view to seeing if there are traces of plea bargain whatsoever. It is on this note that the research was concluded by recommending (among others) that there be a clear Federal Legislation on plea bargain that will apply to the Nigerian criminal justice following the example of Lagos state. The sources of information relied upon here are the combination of primary sources like statutes, case laws and secondary sources ranging from journals, workshop materials, internet materials, textbooks, contributions to edited books, to accomplish this work
| TABLE OF CONTENT | ||||||||||
| Title Page | – | – | – | – | – | – | – | – | – | i |
| Declaration | – | – | – | – | – | – | – | – | – | ii |
| Certification | – | – | – | – | – | – | – | – | iii | |
| Dedication | – | – | – | – | – | – | – | – | – | iv |
| Acknowledgments – | – | – | – | – | – | – | – | v | ||
| Table of Cases | – | – | – | – | – | – | – | – | vi | |
| Table of Statutes | – | – | – | – | – | – | – | – | vii | |
| Table of abbreviation | – | – | – | – | – | – | – | viii | ||
| Abstract | – | – | – | – | – | – | – | – | – | ix |
| Table of content | – | – | – | – | – | – | – | – | x | |
CHAPTER ONE
GENERAL INTRODUCTION
| 1.1 | Background to the Research | – | – | – | – | – | 1 | |
| 1.2 | Statement of the Problem | – | – | – | – | – | 3 | |
| 1.3 | Aim and objectives of the Research | – | – | – | – | 4 | ||
| 1.4 | Significance of the research | – | – | – | – | – | 5 | |
| 1.5 | Justification of the research – | – | – | – | – | – | 5 | |
| 1.6 | Scope of the Research | – | – | – | – | – | – | 6 |
| 1.7 | Research Methodology | – | – | – | – | – | – | 6 |
| 1.8 | Literature Review – | – | – | – | – | – | – | 6 |
| 1.9 | Organizational Layout | – | – | – | – | – | – | 10 |
CHAPTER TWO
CONCEPTUAL CLARIFICATIONS AND DEVELOPMENT OF PLEA
BARGAINING IN NIGERIA CRIMINAL JUSTICE SYSTEM
| 2.1 | Conceptual Clarifications | – | – | – | – | – | 12 | |
| 2.2 | Meaning of Plea Bargaining | – | – | – | – | – | 13 | |
| 2.2.1 | Types of Plea Bargaining | – | – | – | – | – | 15 | |
| 2.2.2 | Charge Bargain- | – | – | – | – | – | – | 15 |
| 2.2.3 | Sentence Bargain – – | – | – | – | – | – | – | 16 |
| 2.3 | Meaning of Criminal Justice | – | – | – | – | – | 16 | |
| 2.4 | Plea Bargain in other Jurisdictions | – | – | – | – | 19 | ||
| 2.4.1 | Plea Bargain in the United State of America – | – | – | 20 | |||||
| 2.4.2 | Plea Bargain in Canada | – | – | – | – | – | – | 23 | |
| 2.4.3 | Plea Bargain in India | – | – | – | – | – | – | 24 | |
| 2.4.4 | Plea Bargain in South Africa | – | – | – | – | – | 25 | ||
| 2.5 | The Development of Plea Bargain in Nigerian Criminal | ||||||||
| Justice System | – | – | – | – | – | – | – | 26 | |
CHAPTER THREE
THE APPLICATION OF PLEA BARGAINING IN THE NIGERIAN
CRIMINAL JUSTICE SYSTEM
| 3.1 | Introduction | – | – | – | – | – | – | – | 32 | |||
| 3.2 | The Application of Plea Bargaining Procedure in the Nigerian | |||||||||||
| Criminal Justice System | – | – | – | – | – | – | 32 | |||||
| 3.2.1 | The Application of Plea Bargaining under the Criminal Procedural | Act | ||||||||||
| – | – | – | – | – | – | – | – | – | 33 | |||
| 3.2.2 | The Application of Plea Bargaining Under the Criminal Procedure | |||||||||||
| Code Law | – | – | – | – | – | – | – | – | 34 | |||
| 3.2.3 | The Application of Plea Bargaining Under the Economic and | |||||||||||
| Financial Crimes Commission Act | – | – | – | – | 37 | |||||||
| 3.2.4 Administration of Criminal Justice Laws of Lagos State – | 39 |
CHAPTER FOUR
EXEMPTIONS TO THE APPLICATION OF PLEA BARGAINING IN
NIGERIA CRIMINAL JUSTICE SYSTEM
| 4.1 | Introduction – | – | – | – | – | – | – | – | 43 | |
| 4.2 | Exemptions to the Application of Plea Bargain in Nigeria Criminal | |||||||||
| Justice System | – | – | – | – | – | – | – | 44 | ||
| 4.2.1 | Cases Prosecuted in the International Criminal Courts | – | 45 | |||||||
| 4.2.2 | Cases Prosecuted AS Capital Offences | – | – | – | 46 | |||||
| CHAPTER FIVE | ||||||||||
| SUMMARY AND CONCLUSION | ||||||||||
| 5.1 | Summary | – | – | – | – | – | – | – | – | 48 |
| 5.2 | Findings | – | – | – | – | – | – | – | – | 50 |
| 5.3 | Recommendation | – | – | – | – | – | – | – | 52 | |
CHAPTER ONE
GENERAL INTRODUCTION
1.1 BACKGROUND TO THE RESEARCH
There are certain key decisions that people who are being prosecuted have to make: one of the most important decisions is to plead guilty. It is „plea bargain‟ when the accused pleads guilty in return for an offer by the prosecution or when the sitting judge has informally made it known that he will minimize the sentence if the accused pleads guilty with plea bargaining the process shifts the focus from the judge leaving the negotiation to prosecutor and the accused or the accused‟s counsel. Practically, it may prevent a public finding of the facts and substitute it with a behind-the scenes cut short. In this case a deal is usually made between the prosecutor and the accused, whereby the prosecution may offer to drop more serious charge(s) against the accused in exchange for guilty plea of a lesser charge(s) and the prosecution and the accused come to an agreement to solve the case.
At the resolve of the case both parties, the prosecutor and the accused tend to achieve one thing, saving of time and reduction of costs.
There is need to begin and conclude trials expeditiously, decongest the prisons, reduce the time and financial cost of criminal investigations and trials still maintain and observe fundamental human rights principle without much ado; laying credence to the above, the concept of plea bargaining apparently seems to be one of the procedures that would assist the Nigerian criminal justice system to achieve these laudable objectives.
However, the concept “plea Bargaining” has generated a lot of arguments amongst members of the bench, bar, law enforcements agencies, the academic community and the public at large in Nigeria and it is this event of argument at various levels that generated the interest of the researcher to delve into this controversial area of study so as to make an attempt in ascertaining the proper position of the law.
These arguments today arose from the seemingly increasing use of plea bargaining by the Economic and Financial Crimes Commission of Nigeria (EFCC) which the enabling Economic and Financial Crimes Commission Act1 Controversially Supports.
Many people have argued in Nigeria that the practice of plea bargaining by the Economic and Financial Crimes Commission allows offenders to receive insignificant punishment that will undermine deterrent aspect of criminal sanctions. Some also believe that offenders can evade the law, provided they are
- Cap E1, laws of the Federation of Nigeria, 2014 willing to bargain. Equally, some have argued that the practice circumvent the rigorous standards of “proof beyond reasonable doubt” imposed on the prosecution during criminal trials. Some people also believe that the application of plea bargaining comprises the fundamental principles enshrined in the constitution of the Federal Republic of Nigeria 19992.
Against the above backdrops, therefore, the objectives of this research therefore is to identify the mode of practices of plea bargain in Nigeria and the inadequacies in the subject matter accounting for the controversy and to finally proffer measures needed for the pro activeness of the law where necessary so as to meet up with the unchallenged practice in other jurisdictions.
1.2 STATEMENT OF THE PROBLEM
The following problems are identified in the research:
- The legal justification of section 14 (2) of the economic and Financial Crimes Act, Cap El, Laws of the Federation of Nigeria, 2004 which the economic and Financial Crimes commission (hereinafter referred to as the commission) uses as a framework for their use of plea bargaining in the prosecution of their landmark cases of corruption and financial crimes
- The Constitution of Federal Republic of Nigeria 1999 being that there is no express provision for a plea bargaining in any of the Federal Criminal Legislations in Nigeria.
1.3 AIM AND OBJECTIVES OF THE RESEARCH
This research aims at ascertaining the applicability of the concept of plea bargain in the penal system, through and examination of the legal and institutional frameworks on the subject matter in Nigeria. In view of this therefore, the objectives of this paper are as follows.
- An examination of the practice and mode of plea bargain in Nigeria vis-à-vis the adequacy or otherwise the inadequacies of the laws regulating plea bargain in Nigeria.
- An examination of the factors militating against the practice of plea bargain in Nigeria
- Finally, to profer measures for addressing the problems identified in the course of the study so as to have a smooth operation of plea bargain in Nigeria like other jurisdictions.
1.4 SIGNIFICANCE OF THE RESEARCH
This research will be of immense help to students, academics, policy makers, the bench and particularly litigation lawyers to ascertain the proper law on the subject matter. It will also be of great importance to graft agencies in Nigeria particularly the economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practice and other Related Offences Commission (ICPC) and the general public by giving them certainty on the mode of application and practice of plea bargain as the relevant institution on the subject matter in Nigeria.
1.5 JUSTIFICATION FOR THE RESEARCH
Justification for this research is to make an attempt to put an end to the controversy surrounding the uncertain of the operation of plea bargain in Nigeria amongst the stakeholders ranging from the students, legal practitioner legal scholars, EFCC, ICPC and relevant stakeholders.
1.6 SCOPE OF THE RESEARCH
The area of coverage for this research as earlier stated is to appraise the legality of the practice of plea bargain in the criminal procedures in criminal cases in Nigeria. Though, the research will be majorly in the Nigerian context, but a short reference may also be made to other jurisdictions where plea bargain holds sway.
1.7 RESEARCH METHODOLOGY
The writer shall mainly adopt the doctrinal method of research by using the primary sources which shall include statutes and judicial authorities in the form of decided cases. The writer shall also make use of secondary sources of materials which include textbooks, journals, encyclopedia, workshop material, internet materials.
1.8 LITERATURE REVIEW
Although, there are different definitions given to the, phenomenon called “plea bargain, this is so because legal practitioners and scholars are not commonly in terms on the exact meaning of plea bargaining. The definition of plea bargaining seems to vary depending on the jurisdiction and on the context of its use.
Notable amongst the various definitions is that one reads thus:
The process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to courts approval. It usually involves the defendants pleading guilty to a lesser offence or to only one or some of the courts of the multi-count indictment in return for a lighter sentenced than that possible for the graver change3.
The writer sees the inadequacies in this definition being that the first of part of the definition suggests that plea bargains are “mutually satisfactory dispositions”. While it is very true that the bargain struck must be agreed upon by both parties to the bargain and guilty plea made intelligently and voluntarily, this does not actually guarantees a mutually satisfactory result. This is more so as the prosecutor may be forced to present a highly favourable offer to a defendant as a result of errors in procedure that may cause evidentiary problems at trial. On the other hand, the strength of the prosecutors that bargain power they present the defendant with almost equally unfavorable choices.
Nchi, S.1.4 defines plea bargaining as “an informal arrangement whereby the accused person agrees to plead guilty to one or some charges in return for the prosecution agreeing to drop the charges or a summary trial”.
The above definition only shows that it is the accused that agrees to one or some charges in return if the prosecution dropping other charges. The writer is of the view that the definition should have added “………. Prosecution agreeing to
- Alubo, A.O “Plea Bargaining: History and Origin” in Plea Bargaining in Nigeria: Law and Practice (Eds) Azinge, E and Ani, L, NIALS, 2012, Abuja
- Nchi, S.1.: The Nigerian Law Dictionary, 2nd (Ed) Jos, Green World Pub Coy Ltd 2000 Page 203
two other charges or for a lenient sentence”. It is pertaining to sentence bargain and in such regards sentences can also be bargained.
In another event, Ekpo, N. Esq. Chairman of the Independent Practices andother Related Offences Commission on his paper presentation5 described plea bargaining as:
The process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of cases subject to court’s approval. It usually involves the defendant’s pleading guilty to a lesser offence or to only one some of the counts of a multi-count indictment in return for a lighter sentenced than that possible for a graver charge.
The writer sees another inadequacy in the above definition of plea bargain in this sense that the writer would criticize the involvement of the court in plea bargain negotiations being that the court is not suppose to be a party to any issues before it.
Plea bargain in much developed criminal jurisdictions have no provision for interference of the court as the practice is basically defendants or offenders in the cases.
In another definition6 plea bargaining has been seen as ”the process of negotiation between the parties in a criminal case involving the defendant‟s
- Ekpo NTA, “Should Plea Bargaining Apply to all Offences in Nigeria” Being a Discussion Paper the :On the Practice Perspectives of Plea Bargaining in Nigeria, 7th May, 2013.
agreement top plead guilty in return for the prosecutors concession reducing either the sentence or the seriousness of the charge”. The writer sees the inadequacies in this definition being that it s unsatisfactory as it seems to suggest hat of accused person stands to face only one charge. In the actual sense, an accused person may face multiple charges during criminal trials.
Another writer, Agaba J.A7 said that plea bargain involved the prosecutor, the accused the victim and the court.
The writer is of the opinion that the court is non-existent in the negotiation process between parties to a case. This is so because the court is not made to be interfering in any negotiation process holding to the common principle of unbiased and fair adjudication of justice.
1.9 ORGANIZATIONAL LAYOUT
Chapter one of the research work bothers on the preliminaries of the research whereby the write looks on some other works to the subject matter, particularly the several definitions by scholar from different jurisdictions and the context on which the concept of plea bargain is used in these jurisdiction. The chapter also bothers on the statement of the problem of the research.
- US History Encyclopedia: http://www.answers.com/topic/plea bargain cas=biz% 20fin, accused on 14/9/2014
- Agaba, j.A Practical Approach to Criminal Litigation in Nigeria, 1st Pan of Press, Abuja 2012, Page 590
Chapter two of the research focuses on the conceptual clarification and the development of plea bargain in Nigeria being a novel concept in the Nigeria Criminal Justice System.
Chapter three of the research focuses on the application of plea bargain under the various Penal Laws in Nigeria and the resultant controversies it is causing amongst scholar and practitioners in the Nigeria Legal System. The writer looks at the various Penal Laws as they apply and the Southern and Northern Nigeria respectively and the Economic and Financial Crimes Commission Act which seemed to be importing the concept of plea bargain.
Further on, chapter four of the research looks at the various occasions of practice, if any where plea bargains can not apply. This chapter tends to lay credence to the saying that “in every general rule there are exceptions”. This chapter picks out the exceptions to the application of plea bargain.
Finally, chapter five gives summary to the work of the research. In this quest the writer gives his findings to viz-a-viz the controversies of the application of the concept of plea bargain in Nigeria and finally gives his recommendations and conclusion.
