The principle of plea bargaining is one of the most complex and greatly arduous facet of criminal trials and criminal proceeding. The concept has its origin from the American conventions which was subsequently entrenched in their laws and was referred to as the criminal procedure rules. This principle was further established judicialy in the American case of ROBERT BRADY v. USA 397 US. 742 (90S) CT. 1463, 25 LED 2d 747.
This article examines the concept of plea bargaining, its extent of applicability in Nigeria and a succinct juxtaposition between the provisions of the ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015 (ACJA) and the ADMINISTRATION OF CRIMINAL JUSTICE LAW OF LAGOS STATE OF 2011 (ACJL) on the concept of plea bargaining.
THE CONCEPT OF PLEA BARGAINING
For ease of understanding of this work, we shall be examining tersely definitions of this concept proferred by the ACJA, the BLACKS LAW DICTIONARY and finally a view of a TEXT WRITER.
By the dint of Section 494 OF ACJA, the concept of plea bargaining means:”…the process in criminal proceedings whereby the defendant and the 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 with other conditions imposed by the prosecution, in return for a lighter sentence than that for the higher charge subject to the courts approval.”
The Blacks Law dictionary defines plea bargaining as a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of the multiple charges in exchange for some concessions by the prosecution usually a more lenient sentence or a dismissal of the charge.
Going further, the highly cerebral J. A. AGABA, author of Practical Approach to Criminal Litigation in Nigeria opined that for there to be plea bargaining, there must be in existence the following:
a) A prosecutor and an accused person/defendant.
b) A negotiation which must have ended in an agreement with concession and compromise from the prosecutor and the accused person.
c) A negotiation between the prosecution and the accused.
d) A plea, that is a plea of guilty to the charge or to a lesser charge.
e) The involvement and acceptance of the plea by the court.
The above definitions and analysis gives a clear and unambiguous meaning and purport of the concept of plea bargaining. We shall hereunder now delve into the applicability of this principle in our Jurisdiction, Nigeria.
THE APPLICABILITY OF THE CONCEPT OF PLEA BARGAINING IN NIGERIA.
In our most humble and considered view, we opine that the concept of plea bargaining is one that did not enjoy applicability in our Nigerian jurisdiction until the enactment of the ACJL in year 2007 and the subsequent enactment of the ACJA in 2015; this, we shall address in the course of this work.
A major factor which informed our stance and position on the non applicability of this concept in our Nigerian Jurisdiction is simply the non entrenchment of this principle in any of our laws prior to 2007.
It is noteworthy that the constitution which is the supreme law of the land has in the provision of section 36(5) made it mandatory that for a person who is charged with the commission of an offence to be convicted, such offence has to be proven. This is to say that, failure on the part of the prosecution to prove the criminal responsibility of the accused, the accused remains innocent. The Evidence Act under section 135 has further added light to this provision by bestowing the burden of prove in criminal trials on the prosecution and in discharging this burden, he must do so beyond reasonable doubts.
The above provisions of the law cited is an apt reference and allusion to the fact that this concept has not enjoyed applicability in Nigeria as it is at no point stated or written down in our laws: that an accused person may negotiate for either a reduction in the years of sentence, or a plea of fewer number of charges or a plea for the prosecution to press lesser charges than that originally filed.
To buttress our position further, it is apposite to bring to limelight the provision of section 215 of the Criminal Procedure Act which provides that a person charged with a criminal offence shall be brought to court unfettered and the charge shall be read to him and he shall be asked to plead thereto. This simply mean that, an accused person is entitled to plead only to the charge which the prosecution has made against him.
Albeit, the law recognises pleading guilty to a charge by an accused, it should be noted that there is an overwhelming difference between this and plea bargaining as plea bargaining contemplates negotiations as to sentence, charge and counts.
It should be noted also that any plea bargaining that does not involve a prior discussion and agreement between the prosecutor and the accused as well as the involvement of the court cannot convinceably qualify as plea bargaining and any plea of bargaining that the law does not recognise is unconstitutional.
It has been argued overtime however that the concept of plea bargaining has its etiology and applicability in Nigeria by virtue of the provisions of section 13(2) of the EFCC ACT 2004 which reads thus;
” Without prejudice to the provisions of section 174 of the constitution of the Federal Republic of Nigeria (which relates to the powers of the Attorney General of the Federation to institute, continue, takeover or discontinue criminal proceedings against any person in any court of law). The commission may compound any offence punishable under this Act by accepting any sum of money as it thinks fit not exceeding the maximum fine to which that person would have been liable if he had been convicted of that offence”.
It is our humble opinion and view that this provision of the Act does not contemplate in any way the principle of plea bargaining.
Our opinion and submission is based simply on the overview of the principle already given above. For clarity and further substantiation of our stance however, it should be noted that the EFCC Act which is purported to be the first Act to introduce this principle in Nigeria did not capture who shall have the right to institute plea bargain. It also has in none of its provisions mentioned the nature of such bargain – whether it is a bargain as to the sentence, charge or counts. It further and most importantly did not state the stage in which this plea bargain may be entered.
This forms a base of our stance because as noted already any plea bargain that does not involve a prior discussion and agreement between the prosecutor and the accused as well as the involvement of the court cannot qualify as plea bargain. Also, given the absence of the basic and fundamental elements and characteristic features of the principle of plea bargaining in the EFCC Act, it cannot be asserted that it is the law that introduced the concept into our jurisdiction thus, our views on this issue.
Sequel to the enactment of the ACJL, the principle of plea bargaining had its first recognition under our laws. The principle as captured under section 75 provides that:”Notwithstanding anything in this law or in any other law, the Attorney General of the state shall have the 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”.
And also the provision of section 76 of the same law provides that: The prosecutor and a defendant or his legal practitioner may before the plea to charge enter into an agreement in respect of;
a) a plea of guilty by the defendant to the offence charged or a lesser offence of which he may be convicted on the charge.
b) an appropriate sentence to be imposed by the court if the defendant is convicted of the offence to which he intends to plead guilty.
It is our considered view that the ACJL is the first law that heralded the introduction of the concept of plea bargaining in our jurisdiction, Nigeria.
The ACJL gave a cognisable position of the law on plea bargain in Nigeria. The law which was carefully couched in order to avoid a clash or an inconsistency with the constitution, adopts the constitutional provision of section 211(3) where it is provided that the exercise of the Attorney General powers is to be made in the best interest of the public and justice.
Interestingly and quite commendably however, upon the introduction of the ACJA in 2015 which is an Act of the National Assembly, provisions were made which gave an all encompassing and espousing provision on plea bargaining. Section 270(1) of the ACJA provided that the prosecutor may:
a) received and consider a plea bargaining from a defendant charged with an offence either directly from that defendant or on his behalf
b) offer a plea bargain to a defendant charged with an offence.
A JUXTAPOSITION OF THE POSITION OF ACJA AND ACJL ON THE CONCEPT OF PLEA BARGAINING
From the above analysis, it is seen evidently that the ACJA is the only Act of the National Assembly that wholly recognises the principle of plea bargaining. Notwithstanding the provisions of the ACJL, it is argued that it never provided specifically for this concept as it is done in the ACJA. Thus, a juxtapositional view of these two laws may be necessary.
The ACJA came into existence with a less vague and unambiguous position. This is given the fact that the ACJL limited the receipts of plea bargains to the Attorney General who can be manipulated given his subservience to the executive arm of government, whilst the ACJA, bestowed such powers on the prosecutor who must not necessarily be the Attorney General.
Furthermore, whilst the ACJL contemplates plea bargains to be done by the accused, the ACJA empowers the prosecutor to also initiate the process.
The ACJA more so provides under sub section 5 of section 270 to the effect that where a plea bargain is made or offered, the following factors must be considered before delving into acceptance of it and these includes;
a) Criminal antecedence of the defendant.
b) Willingness to cooperate with investigation and the .
c) Willingness of the defendant to make restitution to the offence.
The above positions are highly laudable innovations introduced by the ACJA which the ACJL did not have in its provisions. From the foregoing, it is unarguable and indisputably factual that the concept of plea bargaining has only enjoyed applicability under our laws upon the introduction of the ACJA.
It is our submission that this principle now enjoys absolute and general applicability in Nigeria given its entrenchment under ACJA which is the Act guiding criminal proceedings in our jurisdiction.
It is hereby recommended that given the importance of this principle, necessary steps should be taken by relevant authorities to embody this principle as part of the provisions of our constitution to give it a more monolithic force and strength.
ABOUT THE AUTHOR
Asanam George Obong is a student of Faculty of Law, University of Calabar.
He can be reached via +234 703 243 3815.
For knowledge and Justice
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