AN OVERVIEW OF PLEA BARGAIN IN NIGERIA

By Adesina Selimllah Abimbola

Plea bargaining is a negotiation which takes place between an accused person and the prosecution where the former pleads guilty to some of the offences which he is charged (usually lesser offences) while the latter agrees in turn to drop one or more of the other offences with which the accused is charged; or the accused person may plead guilty to one or more offences in return for the prosecution conceding to a milder penalty. A plea bargain is an Agreement between the prosecutor and the accused and both parties are bound to abide by the terms of the agreement. The constitutionality of plea bargain was established in the United States case of Brady v. United states.

Section 495 of the Administration of Criminal Justice Act (ACJA) 2015 defines Plea Bargain as follows:

“Plea Bargain means the process in criminal proceedings whereby the defendant and prosecution work out a mutually acceptable disposition of the case; including the plea of the defendant to a lesser offence than that charged in the complaint or information and in conformity wit

h other conditions imposed by the prosecution, return for a lighter sentence than that of the higher charge subject to the Court’s approval.”

This definition summarily captures what plea bargain entails. Further clarifications were made in section 270 of the same Act which this article shall examine subsequently.

PROCEDURE FOR PLEA BARGAIN

Section 270 of the Administration of Criminal Justice Act (ACJA) 2015 provides for the fundamental procedures of achieving a fair agreement in plea bargain. Section 270(1) of the ACJA explains the category of persons that have the capacity to initiate a plea bargain process. It states thus:

“Notwithstanding anything in this Act or any other law, the prosecutor may:

(a) receive and consider plea bargain from a defendant charged with an offence either directly from that defendant or on his behalf; or

(b) offer a plea bargain to a defendant charged with an offence.”

The above provision attaches the discretionary power to the prosecutor to consider a plea bargain offer from a defendant and in turn present a defendant with a plea bargain offer either directly or through his legal representative.

The subsequent subsection provides for the factors to be considered before a prosecutor can make a plea bargain offer to a defendant. It states:

“The prosecution may enter into plea Bargaining with the defendant with the consent of the victim or his representative during or after the presentation of evidence of the prosecution, but before the presentation of the evidence of the defence provided that all the following conditions are present; (a) The evidence of the prosecution is insufficient to prove the offence charged beyond reasonable doubt; (b) where the defendant has agreed to return the proceeds of the crime or restitution to the victim or his representative; or (c) where the defendant, in case of conspiracy, has fully cooperated with the investigation and prosecution of the crime by providing relevant information for successful prosecution of other offenders.”

It is important to note that the prosecution is obliged to make a plea bargain offer or accept such when it is perceived that such offer is in the interest of justice, public policy, and the need to prevent the abuse of legal process by virtue of section 270(3) of the ACJA.

There is no yardstick to measure what amounts to public interest but the law provides that certain variables should be considered viz:

• The defendant’s willingness to cooperate in the investigation or prosecution of others.
• The defendant’s history with respect to criminal activity.
• The defendant’s remorse or contrition and his willingness to assume responsibility for his conduct.
• The desirability of prompt and certain disposition of the case.
• The likelihood of obtaining a conviction at the trial and probable effect on witnesses.
• The probable sentence or other conviction if the defendant is convicted.
• The need to avoid delay in disposition of other pending cases.
• The expense of trial and appeal.
• The defendant’s willingness to make restitution or pay compensation to the victim where appropriate.

In an attempt to refute the claim that plea bargain is coercive, section 270(4) ACJA provides that:

“The prosecutor and the defendant or his legal practitioner may, before a plea to the charge may enter an agreement in respect of; (a) the term of the plea bargain which may include the sentence recommended within the appropriate range of punishment stipulated for the offence or a plea of guilty by the defendant to a lesser offence of which he may be convicted on the charge; and (b) an approximate sentence to be imposed by the court where the defendant is convicted of the offence to which he intends to plead guilty”.

To subdue the antsy that may arise over the content of the agreement and the need to ensure that justice is secured in line with the three-way traffic proposition, the victim is given the opportunity to be a part of plea bargain process. Either the victim or his representative is allowed to make representation to the prosecutor with respect to the content of the agreement and the inclusion of a compensation and restitution order. This is corroborated by section 270(6) of the ACJA.

After the negotiation of the terms and agreement of the plea bargain, the agreement is required to be reduced into writing with full attestation to the following facts as contained in section 270(7) of the ACJA:

The defendant must be informed:

• That he has the right to remain silent
• Of the consequences of not remaining silent
• That he is not obliged to make confession or admission that could be used in evidence against him and the terms of the agreement and admission made must be fully stated and signed by the prosecutor, defendant, and the legal practitioner and the interpreter as the case may be.

It is pertinent to note that the judge is mandated to stay clear off the entire bargaining process in order to uphold the impartiality associated with the judge as an arbiter in the proceedings. Thus, section 270(8), ACJA provides that “the presiding judge or magistrate before whom the criminal proceedings are pending shall not participate in the discussion contemplated under subsection (3) of this section”.

After the conclusion of the plea bargain, the prosecutor is required to inform the court of their agreement and the judge or magistrate makes enquiries from the defendant for confirmation of the terms of the agreement to ensure that decency and straightforwardness are staunchly upheld. The judge or magistrate shall further make enquiries from the defendant to ascertain whether the defendant concedes the allegation to the charge he has pleaded guilty and whether the agreement was entered into voluntarily and without undue influence.

The judge or magistrate has the power (upon satisfaction that the defendant is guilty of the offence to which he pleaded guilty) to convict the defendant on his plea of guilty to that offence, and may also order payment to the victim as per the terms of the agreement. However, when the court is of the assessment that the defendant could not be convicted of the offence in respect of which the agreement was reached, or that the terms of agreement is in conflict with the defendant’s right, the court maintains whatever authority is needed to record plea of not guilty and order that the trial should proceed.

After conviction in accordance with the terms of agreement as contemplated under subsection 9(a), the court shall proceed to sentence the Defendant in accordance with the terms of the agreement as it relates to sentencing. In doing this, the judge or magistrate must be pleased that the sentence agreed on is the apt and appropriate sentence, with due recourse to the provision of the law prescribing the punishment for the said offence. Lesser sentence may be imposed if the court is of the opinion that the Defendant deserves a lesser sentence as opposed to what the parties have agreed on.

Thereafter, an order is made that any money, asset or property agreed to be forfeited under the plea bargain be transferred to the victim or his representative. This provision will be proficiently enforced in economic crimes, armed robbery, stealing and other property crimes. This, however, does not dispossess its application to other crimes.

Besides, the Prosecutor has duty to take reasonable steps to ensure that any money, assets or property agreed to be relinquished by the defendant under a plea bargain are transferred to the victim or his representative or other person lawfully entitled to it. The law makes it an offence punishable with 7years imprisonment without an option of fine to anyone who willfully and without noble motivation obstruct or impede the vesting or transfer of any money, asset or property as ordered by the court.

If, however, the court conceives that the Defendant merits a heavier sentence, the Defendant shall be educated regarding such heavier sentence the court considers appropriate for the offence. The Defendant having been informed may;

1. Abide by his plea of guilty as agreed upon and agree that, subject to the Defendant ’s right to lead evidence and to present argument relevant to sentencing, the presiding judge or magistrate may proceed with sentencing; or
2. Withdraw from his plea agreement, in which event the trial shall proceed de novo before another judge or magistrate as the case may be.

Where the trial is to proceed de novo before another judge or magistrate as contemplated above, the following shall apply:

• No reference shall be made to the agreement;
• No admission contained in the agreement or statements relating thereto shall be admissible against the Defendant; and
• The Prosecutor and the Defendant may not enter into a similar plea and sentence agreement.