Abubakar Bukar Kagu Machinama
While we all are concerned about corruption and impunity in our political and economic system, the criminal justice system just got even more vulnerable. This opinion article is part of a series that I intend to write with the aim of shading light on the introduction of plea-bargaining. But before we transit into the technical aspect of this controversial and less understood legal process, it is essential to lay a foundation on the development that necessitated this discourse.
A lot of writers, including Chidi Odinkalu have conceded that plea-bargaining has some advantages. Agreed, it is flexible, but like Alcshuler, we must also admit that flexibility is an advantage all lawless systems exhibit in comparison with systems of administering justice by rules. Even if the balance between rules and discretion that criminal justice presents merits alteration, plea negotiation might remain an unsatisfactory vehicle of re- adjustment.
Only two years ago, the High Court of the FCT presided over by justice Talba granted John Yakubu a prison sentence with an option of 750,000 naira fine for a crime that involved over 20 billion Naira of the Police pension fund. The extent of disquiet and frustration shown by Nigerians was unprecedented. It is legitimate though. At the hour Justice Talba raised his gavel to pronounce that ludicrous verdict, plea-bargaining was nowhere in our laws. Neither the EFCC nor any prosecutorial body has the moral justification or the an express statutory permission to engage in that legal bazaar of dropping and substituting of charges for a crime that had clearly been committed. But wait, that is now an old story. If a similar case comes up today, the prosecutor has every legal powers to drop any charge Not only is this provided under the Act; it is encouraged.
At the eve of his departure, former President Goodluck Jonathan signed into law the Administration of Criminal Justice Act 2015. This new legislation is for Federal Courts in Nigeria. The underlining jurisdictional underpinning is that most cases of corruption, money laundering and other financial crimes are tried in Federal courts. The phenomenal part of this legislation is the introduction and legalisation of plea-bargaining. This method or process had in the past sparked enormous outrage. Principally, plea-bargaining la Nigeria is an out-of-court arrangement where a criminal offender negotiates with the prosecution (or the judge) to arrive at some agreed charge or sentence concession. To put this in the context of the recent legislation signed into law on the 15th of May 2015, it is now permissible for the accused and the prosecutor to sit privately and negotiate on what charges should be taken to court, which to drop, replace or substitute. This unfamiliar legal process technically accord the accused person unwarranted stake in the final outcome of his conviction. Away from public scrutiny, crime and evidence are discussed, negotiated and compromised.
Part 28 of the Act, specifically Sections 270-277 clearly state, “Notwithstanding anything in the Act or in any other law, a prosecutor may receive and consider a plea bargain from a defendant charged with an offence either directly from that defendant or on his behalf or offer a plea bargain to a defendant charged with an offence. We have seen the presence of the word ‘may’, and other additions to the law. But legal practitioners are aware that these are all familiar statutory verbosities. The literal meaning effect of this provision is that, plea-bargaining is legal and it is left for the prosecution to decide on how and when to do it.
But plea bargaining is known for its controversies and for the multifarious dangers it poses to criminal justice administration. Leading scholars such as Casper, Langbein, Schulhofer etc., have perpetually exposed how this system negates the principles of fairness by undermining criminal justice’s lofty tenets of transparency, freedom from coercion and the need to prove a case beyond reasonable doubt. In the end, a negotiated plea, unlike a trial confers on the prosecution the unbridled powers of the judge and the legislator. He decides what to charge; who to charge; when to charge and whether to confer immunity on the offender.
Essentially, it is an entente that severely affects the configuration of criminal justice by licentiously shifting the process of determining sanctions out of the courtroom to some private enclosure where the language is that of trade-off and compromise between the parties. It is a system that thrives on institutional conditions utterly inconsistent with the general interest of law and the society. Neither the goals of retribution nor those of deterrence are achieved through plea bargaining. It is simply a quick and shabby process in which sanctions become negotiable instruments to be bargained and discounted – the outcome of which is often the flagrant dilution of the social fabric of justice. A Texas judge once referred to plea-bargaining as a process that “inevitably produces the ridiculous result that, as crime grows worse, sentencing becomes more lenient.” Common sense will tell us that any system that treats the same kinds of offences with the assurance of substantially different sentencing outcomes or awards reduction to big crimes while small criminals languish in prison, cannot be equated with justice.
Despite the constant claim by proponents that it is an effective way of dealing with cases without the nuances and technicalities that protract most court processes, we have seen, time and again how unpropitious most of these negotiations have been to the character and credibility of the entire criminal justice system. It is evident our legislators pay little attention to the plethora of empirical evidence that exposed the extent to which plea-bargaining desecrates some of the fundamental principles of the rule of law. Worst still, they do not seem to understand the implications of some of the laws that pass through their chambers.
It is important to stress that all through history, criminal justice had had some pattern of guilty plea. What changed now is the way in which the whole system has transformed to become more of a commercial deal than a quest for justice. Proponents would always raise the argument about over-crowded docket, complexity of certain cases, lack of sufficient evidence secure conviction etc. Even if these arguments are legitimate in other legal regimes, they do not necessarily apply in today’s Nigeria. It is difficult to allow plea bargaining in Nigeria without endangering the fight against corruption by opening a leeway for corrupt officials to steal and celebrate, knowing well that there is room for negotiation.
In many instances, discussions on criminal justice and its goals lead to a field of complex permutations that often encompass the sociology and politics law. But even within that theoretical prism, a cogent and justifiable reform should be one that earnestly establishes the credibility and essence consistency and fairness in both trial and sentencing. It therefore ridicules common sense when one man steals a motorcycle and is sent to prison while the other steals two billion and negotiate his way out of penalty. We appreciate the eminence and utility of politics and economics in guiding the standards of legal reforms. While this relationship with its multifunctional outcome remains at the epicenter of whatever is to be brought into the general landscape of criminal justice system, the introduction of plea-bargaining is by far a case of ‘sneaky legal transplant’. I say this because most Nigerians, in and outside legislative chambers are aware of the outcry that greeted the Pension fund case. It is therefore anybody’s guess what Nigerians would choose if they were asked to support or oppose this phenomenal contour towards a new but compromising penal system. The general consequence of this is the extent to which it will cause a gradual but steady retreat from some of the most important tenets of our criminal justice.
The John Yakubu case is both a precedent and a wake up call. Unless the country is uncommitted to fighting corruption and shady legal deals, legislators have to revisit this precarious and dodgy provision.
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