The concept of plea bargain is an agreement between the Prosecutor and the Defendant , alleged to have committed an offence under a particular penal statute, which enables the Defendant pleading to a lesser offence in exchange of a lighter punishment or sentence. It enables both the Prosecutor and the Defendant to avoid a lengthy trial; however, a lot of arguments have been generated both locally and internationally on the existence of plea bargain under the Nigerian penal system.
The Administration of Criminal Justice Act 2015 is one of the procedural laws regulating criminal proceedings in Nigeria. With the repeal of Criminal Procedure Act and Criminal Procedure Code (of Northern Nigeria), ACJA 2015 becomes the main legislation for the entire national criminal justice system to be applied uniformly in all federal courts.
The purpose of the ACJA2015 is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of rights and interests of the suspect, the Defendant and the victim. Hence, it makes comprehensive provisions for plea bargain in criminal trials in order to further enhance its aim.
It is against the above background that this paper aims to examine the concept of plea bargain under the Nigerian laws particularly the Administration of Criminal Justice Act 2015 and determines whether the Acttakes into consideration its purpose, stated above in making provisions for PLEA BARGAIN during criminal trials.
The work shall conclude that the Federal Government of Nigeria should adopt plea bargain in the Prosecution of high profile cases of corruption pending in Courts against some prominent Nigerians due to lack of Prosecutorial resources, reduces case loads, among other reasons.
One of the cardinal principles of criminal justice system in Nigeria is that; a person charged or accused with the commission of an offence is presumed innocent until the contrary is established. There are plethora of authorities that proof of guilt is a heavy burden placed on the prosecution/state which must be discharged beyond reasonable doubt, otherwise, the court will not hesitate to discharge/acquit an accused. The importance of fair hearing cannot be over-emphasized, that is why whenever a person is charged with criminal offence, he shall be entitled to a fair trial. By presumption of innocence in favour of an accused person as conferred by the constitution,the law prefers to set 10 guilty men free than to punish an innocent soul.The aim of fair hearing is to ensure that justice is not only done but seen to have been done.
Plea bargain is one of the ways of finding solutions to the yearning of our society for justice and justice is said not to be a one way traffic; it is tripartite; i.e. justice to the Prosecutor, the accused and the society (victim). Countries like France, Canada, and United States of America have developed plea bargain in order to assist in the dispensation of criminal justice. This is because, it helps courts to manage loads of cases, preservation of state resources and time in the Prosecutionof criminal cases in court.
The idea of plea bargain, although has been held to be unknown to our law in Nigeria and this has been the basis for the opinion of some scholars arguing against the idea of plea as illegal and unconstitutional. However, a close perusal of the Administration of Criminal Justice (Repeal and Re-Enactment) Law of Lagos State 2011, one will wonder whether the position that plea bargain is unknown to any law in Nigeria will still hold sway.
To justify this position, Ogunwumiju JCA in the case of Federal Republic of Nigeria v. Igbinedionheld that; “plea bargain is as at now generally unknown to our criminal justice administration and indeed our criminal jurisprudence”. Also, sometimes in 2012, the former Chief Justice of Nigeria, Hon. Justice DahiruMusdapher (CJN as he then was) opined that; plea bargaining is a novel concept of dubious origin. It has no place in our law-substantive or procedural.
Now, with the enactment of the Administration of Criminal Justice Act in 2015, it goes without saying that the position of the learned jurists with due respect might no longer hold wateron the existence of plea bargain under the administration of criminal justice in Nigeria.
WHAT IS PLEA BARGAIN:
Plea bargain according to the Black’s Law Dictionary (9th Edition, 2009);
“A negotiated agreement between a Prosecutorand a criminal Defendant where the Defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the Prosecutor usually, more lenient sentence or a dismissal of the other charges”
Section 494 of the Administration of Criminal Justice Act 2015 defines plea bargain as;
“The process in criminal proceedings whereby the Defendant and the Prosecutionwork 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 Court’s approval”
According to Kehinde, plea bargain is a negotiation which takes place between an accused person and the Prosecutionwhere the former pleads guilty to some of the offences which is charged (usually lesser offences), while the later agrees in turn to drop one or more of the other offences with which the accused person charged; or the accused person may plead guilty to one or more offences in return for the Prosecutionconceding to a milder penalty.
A community understanding on the above definitions of plea bargain, the following elements could be set out;
- The commission of criminal offence(s) by an accused person/Defendant
- The Prosecution must have taken steps in charging the Defendant before a criminal court of competent jurisdiction for the said offence(s).
- A negotiation between the Prosecution and the Defendant requiring the Defendant to plead guilty to the certain offence(s) or a lesser offence.
- The negotiation is subject to the approval or consent of the court.
In light of the above, it is admitted that the Prosecutorial authority lies in the state to press a criminal charge against the accused, but it is submitted that the above definitions to plea bargain do not consider the interest of the victims of the offence against whom certain offences may be committed by the accused/Defendant . Although, ACJA provides to that effect as shall be discussed in the later part of this article, but it’s important to state at this juncture that the parties involved in the processes are; the Prosecutor, Defendant , court and the victim.
TYPES OF PLEA BARGAIN:
- CHARGE BARGAIN: This arises where the Prosecutor agrees with the Defendant to press a lesser charge than that originally filed. The judge may not be involved since the judge has no hand in the type of charge the Prosecution intends to bring against the Defendant .
- SENTENCE BARGAIN: It arises where the exchange of plea of guilty by the Defendant for a promise of leniency or lesser sentence/punishment. In this type of plea bargain, the Prosecutor charges the Defendant with the main offence, but base on the agreement suggests or recommend to the court a lesser or milder sentence. This is possible only where the judge has the discretionary power to impose sentence lower than that prescribed by the law and not in mandatory sentence like murder.
MERITS OF PLEA BARGAIN:
As earlier noted, there is a school of thought which advocates for the embracement of plea bargain in order to meet the demand for justice in the administration of criminal justice. The following are considered as the stronghold of plea bargain by its proponents;
- It helps deal with loads of cases in court for prosecution/trial. With plea bargain, the state and the court are assisted in dealing with case-loads and this reduces the work load on the Prosecution and enables the Prosecutionfocus or prepare for more serious cases by leaving effortless and petty charges at the same time the court has enough time to deal with other cases.
- It hastens the process of criminal trials: plea bargains are significant in restructuring offenders by letting them agree to the blame for their trial and by allowing offenders voluntarily submit before the law without having to waste time on their trials.
- Plea bargain eliminates any form of uncertainty and helps the Defendant in making sure that he does not receive more serious charges or punishment for the criminal acts filled against him.
- Possibility of finding the accused person guilty.
- It prevents a case from getting worse and the difficulty in proving certain complex cases such as economic crimes committed across jurisdiction in one operation makes plea bargain very attractive.
- Plea bargain forms a framework wherein the accused and the Prosecutor can reach an agreement which settles the matter in what appears to be in the spirit of fairness to all parties concerned.
- A Defendant , though having pleaded guilty to a party charge brought against him may be very crucial in supplying information which may be useful in the Prosecutionof another offence committed by another offender.
- It may obviate the need to spend huge expenses in the Prosecutionof criminal cases and the state can conserve its resources. i.e. saves the cost of litigation and also conserves judicial funds which would be wasted on investigation and Prosecutionof cases.
- It avoids the necessity of a public trial and may protect the innocent victims of crimes against trauma of given evidence in open court especially in rape cases where the prosecutrix may not want to testify because of the social implication of her testimony in years to come.
DEMERITS OF PLEA BARGAIN:
- Plea bargain leads to poor case preparation and investigation: this is because, the Prosecutionas a result of the understanding do not take time to properly prepare for the case and poor police investigation. Rather than pursuing justice, the parties would rely on plea bargaining, where the details of the offence so committed will become less important.
- It is also argued that plea bargain is unconstitutional because, it takes away the Defendant ’s constitutional right to a fair trial as he is coerced into such agreement, then this argument may have a considerable weight. But if the Defendant , at all times in the criminal case, retains his right to trial without pressure to make an agreement, the court finds the procedure constitutional.
- It does not provide benefit for the innocent Defendant s. This means that police officer or the Prosecutionare encouraged to undertake shoddy investigations, and lead counsel to no longer bother to plan and organize a quality case in court.
- The Prosecutionis capable of taking full advantage of accepting the criminal act in weakest trials. The more likely the trial ends in acquittal, the more beneficial a guilty claim is for the prosecution.
- Plea bargain also makes the justice system to suffer since both the defence and Prosecution parties depend on their power to negotiate a deal, instead of focusing on the outcome of full trial.
PLEA BARGAIN IN NIGERIA:
As earlier noted, the Nigerian criminal justice system presumes a person accused of committing an offence innocent until the contrary is established. This presumption of innocence is deeply ingrained into the ground-norm under section 36(5) 1999 (as amended) and therefore, places a heavy burden on the Prosecutionto proof the commission of the offence beyond reasonable doubt by establishing the essential elements of the offence(s) to the satisfaction of the court. It is submitted that for a number of reasons, the discharge of this duty can be a very difficult task in order to secure the conviction of the Defendant even if it is glaring that the Defendant has actually committed an offence. Hence, the need to bargain with the Defendant in ensuring that justice is done.
In Nigeria, the first procedural law that recognizes plea bargain is the Administration of Criminal Justice (Repeal and Re-enactment) Law which applies in Lagos. The concept was new as it was unknown to both adjectival and substantive laws.
However, some writers are of the opinion that; although, plea bargain is not expressly provided for in our penal laws but cannot be said to be totally alien to our criminal jurisprudence. Prior to the establishment of the Economic and Financial Crime Commission, there were instances where Defendant s approached Prosecutor offering to plead to a lesser charge so as to get a lighter sentence and to elicit a concession from the prosecution. The concept of plea bargainis thus, not alien to any country that has common law origin. This is because, the criminal justice system gives much responsibility to the Attorney-General and the Prosecutor and it allows for taking of plea and amendment of charges.
A close perusal of the EFCC Act, the writer stumbles on the provision of section 13(2) which provides to the effect that;
“Without prejudice to the provision of section 174 of the constitution of the Federal Republic of Nigeria (which relates to the power of the Attorney-General of Federation to institute, continue, takeover or discontinue criminal proceedings in any court of law before judgment) 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”
A literal interpretation of the word compound as used in the above section means to agree for consideration not to press a criminal charge against an alleged offender by receiving some money therefrom. This provision seems to have a judicial backing in the case of Chidolue v. EFCCwhere the court held that; before an offence can be compounded, the following must be presented;
- There must be an agreement not to prosecute
- The accused must have actual knowledge of the crime committed.
- There must be receipt of some consideration from the accused.
It is however, submitted that compounding is clearly different from plea bargain.
Before now, the only enactment that has provided expressly for plea bargaining is the Administration of Criminal Justice (Repeal and Re-enactment) Law of Lagos State. Under section 75 of the law, the Attorney-General of Lagos State has 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 (Underline mine).
Also, the provision of the constitution empower the Attorney-General is not oblivious of the fact that the essence of criminal Prosecution is in the interest of public, justice and prevention of the abuse of legal process. It is evident that the ultimate purpose of criminal Prosecution is not to inflict punishment on the offender but the conglomeration of the public interest, interest of public and the need to avoid abuse of legal process.
PLEA BARGAIN UNDER THE ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015.
Administration of Criminal Justice Act came into operation in May 2015 when the Bill was assented to by the President, Dr. Goodluck Ebele Jonathan. As earlier noted, the main purpose of the ACJA is to ensure that the system of administration of criminal justice in Nigeria is efficiently promoted and the institution is effectively managed; speedy dispensation of justice, protection of the society from crime and the protection of the rights and interest of the victim, suspect and the Defendant .
The focus here is to examine the extent to which the Act has catered for its aims by making copious provision for plea bargain. In order to achieve this, step-by-step evaluation of the section will be considered.
Part 28 of the Administration of Criminal Justice Act provides for plea bargain and plea generally which commences with Section 270(1) Notwithstanding anything in this Act or any other law, the Prosecutor may:
- Receive and consider a plea bargain from a Defendant charged with an offence either directly from that Defendant or on his behalf
- Offer a plea bargain to a Defendant charged with an offence.
From the above provision, the Prosecution is given absolute discretion to consider and receive plea bargain from a person alleged to have committed an offence and the offer of plea bargain may come from the prosecution, Defendant or his representative (this contemplates a situation where the Defendant is not able to make the offer may be as a result of being in police detention). The section also applies in an instance where the Defendant is yet to be arraigned before a court of competent jurisdiction.
Furthermore, where the Defendant has been arraigned and trial has commenced, 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 the evidence of the prosecution, but before the presentation of the evidence of the defence, provided that all the following conditions are present:
- The evidence of the Prosecution is insufficient to prove the offence charged beyond reasonable doubt;
- Where the Defendant has agreed to return the proceeds of the crime or make restitution to the victim or his representative or
- Where the Defendant in a case of conspiracy has fully cooperated with the investigation and prosecution of the crime by providing relevant information for the successful prosecution of other offenders.
This sub-section manifests the argument of the proponents who argued that plea bargain may lead to the providing important information that may aid prosecution of other offenders and relieves the prosecution of the cumbersome duty of proving beyond reasonable doubt which can be very difficult to do.
Section 270(3) ACJA provides that where Prosecutor is of the view that the offer or acceptance of a plea bargain is in the interest of justice, the public interest and public policy and the need to prevent abuse of legal process, he may offer or accept the plea bargain. However, before the Prosecutor offers or accepts plea bargain, he must consult with the police responsible for the investigation of the case and the victim or his representative and due regards must be given to the nature of and circumstances relating to the offence, the Defendant and public interest.
The question may be asked; what is public interest?, it is submitted that no acceptable standard or measure is available to give an opposite answer to this poser, but the Act provides for certain factors to 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 trial and the probable effect on witnesses;
- The probable sentence or other consequences if the Defendant is convicted;
- The need to avoid delay in the disposition of other pending cases and
- The expenses of trial and appeal
- The Defendant ’s willingness to make restitution or pay compensation to the victim where appropriate.
This supports the earlier position of the author that the interest of justice, public and need to prevent abuse of legal process is very paramount to criminal prosecution and it is also submitted that plea bargain can be a better alternative to nolle proseque.
In a bid to refuse the claim that plea bargain is coercive; section 270(4) provides that
The Prosecutor and the Defendant or his legal practitioner may before the plea to the charge, enter into an agreement in respect of:
- The term of the plea bargain which may include sentence recommended within the appropriate range of punishment stipulated for the offence or a plea of guilty by the Defendant to the offence(s) charged or a lesser offence of which he may be convicted on the charge and
- An appropriate sentence to be imposed by the court where the Defendant is convicted of the offence to which he intends to plead guilty.
Furthermore, in the course of the negotiation between the Prosecution and the Defendant , the law allows that the victim or his representative to make representation to the Prosecutor (being the main actor in the process) with respect to; the content of the agreement and the inclusion in the agreement of a compensation or restitution order. This is to ensure transparency between the Prosecution and the Defendant and to afford the victim the opportunity to reclaim whatever he has lost to the Defendant .
After negotiation of the terms of the bargain between the Prosecutor, victim and the Defendant , the agreement is required to be reduced into writing stating that:
- The Defendant has been informed:
- That he has right to remain silent;
- Of the consequences of not remaining silent and
- That he is not obliged to make any confession or admission that could be used against him.
- State fully the terms of agreement and any admission made; and
- Be signed by the Prosecutor, Defendant , the legal practitioner and the interpreter, as the case may be; and
- A copy of the agreement forwarded to the Attorney-General of the Federation.
This provision further reinforces the fundamental right of an accused/Defendant to remain silent as guaranteed under the constitution and seeks to confer legal status on the agreement in terms of validity and enforceability.
It is important to note that, in the entire arrangement, a judge or magistrate must stay clear off the negotiation of the terms of plea bargain. This is to uphold the impartiality of the judge as an arbiter in the proceedings. Hence, section 270(8) ACJA provides “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”
However, after the conclusion of the bargain, the law requires the Prosecutor to inform the court of their agreement and the judge or magistrate make enquiries from the Defendant for the confirmation of the terms of the agreement. This in a way is to ensure fairness and transparency of the arrangement and the judge or magistrate comes in upon the arraignment of the Defendant before the court and the matter is set-down for trial.
The participation of the presiding judge or magistrate extends to ascertaining whether the Defendant admits the allegation in the charge to which he has pleaded guilty and whether the agreement was entered into voluntarily and without undue influence.
In addition, where in the arraignment, the Defendant pleads guilty, and the judge/magistrate may, if satisfied that he is so guilty, convict the Defendant on his plea of guilty and award compensation to the victim in accordance with the terms of the agreement; everything must be in writing in form of the judgment of the court. This suggests, contrary to the popular notion,that plea bargain does not mean that the Defendant will go scot-free without being convicted.
However, if the court is of the opinion that despite the plea bargaining between the parties, the Defendant could not be convicted upon his plea of guilt or the agreement is at variance with the Defendant ’s rights, plea of not guilty shall be recorded and order that trial commences or proceeds with immediate effect.
PROCEDURE AFTER CONVICTION:
Where a Defendant is convicted in accordance with the provision of the 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 court must be satisfied that the sentence agreed on is the appropriate sentence, taking into consideration 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, the judge or magistrate makes an order that any money, asset or property agreed to be forfeited under the plea bargain shall be transferred to and vest in the victim or his representative or any other person as may be appropriate or reasonably feasible. This provision will be efficiently enforced in economic crimes, armed robbery, stealing and other property crimes. This, however, does not foreclose its application to other crimes.
Furthermore, the Prosecutor has duty to take reasonable steps to ensure that any money, assets or property agreed to be forfeited or returned by the offender under a plea bargain are transferred to or vested in the victim, 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 wilfully and without just cause obstructs or impedes the vesting or transfer of any money, asset or property as ordered by the court.
If, however, the court thinks the Defendant deserves a heavier sentence, the Defendant shall be informed of such heavier sentence the court considers appropriate for the offence. The Defendant having been informed may;
- 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
- 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 proceeds de novobefore 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.
Finally, where the Defendant is convicted and sentenced in pursuance of the plea bargain, such Defendant shall not be charge d or tried again on the same facts for the greater offence earlier charged to which he had pleaded to a lesser offence. Also, the judgment of the court under plea bargain shall be final and no appeal shall lie to any court against such judgment, except where is alleged.
It is submitted that the last provisions in respect of plea bargain under the Act, contemplate the possibility of plea of autrovios convict and consent judgment which is not subject to right of appeal except where fraud is alleged in the process of negotiating the plea of the Defendant .
Having examined the concept of plea bargain, advantages and disadvantages, it is the opinion of the author that the advantages far outweigh the disadvantages and this is evident from the entire provision of the Administration of Criminal Justice Act 2015. Thus, the inclusion of the idea into the criminal justice system is a welcome development. Also, if plea bargain can be adopted in the prosecuting offences especially financial crimes i.e corruption which are very rampant among the political office holders at all levels of government, the main purpose of the Act to promote efficient management of criminal justice institution and speedy dispensation of justice, protection of the society from crime and rights and interest of both the Defendant and the victim will be adequately taken care of.
The Administration of Criminal Justice Act has made a commendable revolution in the area of admiration of criminal justice in Nigeria especially on plea bargain having perceived the various shortcomings associated with the concept.
It is further submitted that plea bargain as copiously provided for under ACJA is constitutional, taking into consideration the fundamental right of the Defendant to fair trial which is cardinal and fundamental criminal proceedings.
The writer, therefore, recommends that;
- The Federal Government in its fight against corruption should see plea bargain as analternative to full prosecution especially in economic and financial crimes. This is because, economic crimes are usually complex and so much is involved in terms of time and cost, so it is easy for a Prosecutor to agree to a plea offer to save time and cost. This does not mean that the properties or money involved will not be forfeited or that the victim will be left to go scot free. The court will still convict and sentence accordingly as stated above.
- All the States of the federation should amend both procedural and substantive laws to accommodate plea bargain in an extensive and comprehensive manner as provided under the Administration of Criminal Justice Act 2015.
 Its application is however restricted to the Federal High Court, High Court of Federal Capital Territory Abuja, Magistrate Court in Abuja and High Court of State exercising Criminal Jurisdiction over offences created by an Act of National Assembly. But it does not apply to criminal proceedings before Court Martial. See Section 2 ACJA 2015.
Section 36(5) Constitution of the Federal Republic of Nigeria, 1999 (as amended),Olawoye and ors v. Commissioner of Police (2006) All FWLR (pt 309) 1483.
Agbiti v. Nigerian Army (2011) All FWLR (Pt 570) 1223.
 See sections 75-76 of the Administration of Criminal Justice (Repeal and Re-enactment) Law of Lagos State 2011. However, it is not the concern of this work to analyse plea bargain under this law, attention is only drawn to this law to correct the impression that plea bargain is not recognized under any law in Nigeria prior to the enactment of the Administration of Criminal Justice Act 2015.
 (2014) All FWLR (Pt 734) 101 at 144.
KehindeAdegbite “Plea Bargaining in Nigeria: Any Legal Foundation?” Friday, 19th September, 2014 (gettipsforeverday.blogspot.com.ng) accessed on 20th day of March 2015,
 See Slap v. Attorney General of Federation (1968) NMLR 326.
 See the Report of the Working Group on the Reform of Criminal Justice of the Honourable Attorney General and Commissioner for Justice Lagos State 2005.
Igabele v. State (2006) ALL FWLR (PT 311) 1797, section 135 Evidence Act 2011.
Rotimi Jacob “Procedural Issues in Plea Bargaining” West African Regional Workshop on Plea Bargaining Abuja, 2005.
 (2012) 5 NWLR (PT 1292) 160.
 See sections 174(3) and 211(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)
 See section 270(2) ACJA 2015.
 See section 270(5) ACJA and its Proviso
 Section 270(6)
 Section 270(9)ACJA
 Section 270(10) ACJA
 See section 308 ACJA and Section 270(10)(a)
 Section 270(10)(b)
 It is important to state that; in sentencing, the court has discretion but the discretion is limited in terms of mandatory, maximum and minimum sentences.
 See section 270(13-14) ACJA.
 Sections 270(11)(c) and (15)(a-b) ACJA
 Section 270(16) ACJA
 Section 270(17-18) ACJA