One of the most common and controversial recent practices in the criminal justice process is plea-bargaining. A plea bargain is an agreement between the prosecutor and the accused person in a criminal trial.
The prosecutor will give the accused person the opportunity to plead guilty to a lesser charge or to the original charge with lighter sentence. Although plea bargain has become a global means of achieving results in prosecuting criminal offences, most countries including Nigeria have refused to codify it or create a legal frame work for its use and thus has led to various abuses. An example is the case of Chief Lucky Nosakhare Igbinedion.
In 2008, the former governor of Edo State from 1999 – 2007, Chief Lucky Nosakhare Igbinedion was arraigned by the Economic and Financial Crimes Commission (EFCC) before the Federal High Court, Enugu in charge No FHC/EN/6C/2008 on a 191- count charge of corruption, money laundering and embezzlement of N2.9b. In a plea bargain arrangement, the EFCC through its counsel Mr. Rotimi Jacob reduced the 191- count charge to one - count charge. The single charge reads:
“That you, Lucky Igbinedion (former Governor of Edo State) on or about January 21, 2008 within the Jurisdiction of this honourable court neglected to make a declaration of your interest in account No. 41240113983110 with GTB in the declaration of assets form of the EFCC and you thereby committed an offence punishable under section 27 (3) of the EFCC Act 2004”
The terms of the plea bargain were that the prosecutor would reduce the 191 - count charge to one - count charge and in return, Lucky Igbinedion will refund N500m, 3 properties and plead guilty to the one - count charge.
In line with the plea bargain, on the 18th December 2008, the court presided over by Justice A. Abdul Kafarati convicted Lucky Igbinedion on the one- count charge and ordered him to refund N500m, forfeit 3 houses and sentenced him to 6 months imprisonment or pay N3.6m as option of fine. There was a general outcry and disappointment by Nigerians over the judgment, which made the chairperson of the anti-corruption agency, Mrs. Farida Waziri to issue a statement that the plea bargain duly entered into fell short of its expectation. Accordingly, on 19-12-2008 the commission appealed the decision of the court, though nothing has since been
heard of the appeal. It is important to point out that the appeal filed by the commission is not in respect of the whole judgment but only a part of the decision of the judge for giving option of fine to Lucky Igbinedion. That is to say, the commission is comfortable with the terms of the plea bargain judgement save for the option of fine.
Again, on 18-2-2011 the commission filed a fresh 66- count charge of corruption and money laundering against Lucky Igbinedion and others at the Federal High Court, Benin City in Charge No FHC/B/HC/2011. He was accused of embezzling 25billion Naira from the coffers of the Edo State people when he was their Governor. But on 31-5-2011, delivering ruling on a preliminary objection filed by Igbinedion’s Counsel, the presiding judge, Justice Adamu Hosbon held that it would amount to double jeopardy and abuse of court process to try the former governor again as he had in 2008 entered into a plea bargain with the commission at the Federal High Court Enugu. Accordingly, Igbinedion’s name was struck out from the 66- count charge. The commission’s denial that there was no agreement with Lucky Igbinedion could not avail them.
The case of Lucky Igbinedion has opened the eyes of Nigerians to many puzzles on plea bargain as practiced by the EFCC. Among the puzzles are (i) was it a good bargain for the commission to compress and reduce 191 - count charge to one - count charge?, (ii) was it a good bargain for the commission to accept N500m and 3 houses and allow Lucky Igbinedion to keep N2.4b and other properties?, (iii) was the option of fine a part of the plea bargain or it was imported into the judgment by the presiding judge?, (iv) was it a good bargain for the commission to charge Lucky Igbinedion on a mere non-disclosure of an account with GTB when among the 191- count charges there were weightier and more serious count charges on corruption and embezzlement?, (v) was it a good bargain to enter into an oral agreement with Lucky Igbinedion in the circumstances of the case? (vi) was it a good bargain to let Lucky Igbinedion off the hook on a N2.9b fraud with an understanding not to prosecute him again when there was a N25b fraud pending against him?
As mind-boggling as these questions maybe, the answers may forever be elusive because the whole concept of plea bargain as pictured by Igbinedion’s case is rooted in terrible legal advice, inefficiency, secrecy, and stinks of underhand dealings. It is also disturbing that simply because the commission needed to assuage the feelings of Nigerians, it had to use the tax payers money to appeal such a judgment based on a plea bargain which they entered with their clean - eyes. The same taxpayers money was equally used to file another matter in Benin when the commission knew it had sealed a bargain, no matter how bizarre, with Lucky Igbinedion on the same matter. At the end, because nobody accepts responsibility for mistakes in Nigeria, the commission and its lawyers smile to the bank while Nigerians who have been short- changed continue to groan in poverty.
In Nigeria, for a plea bargain to be effective, there should be a Legislation that will create a legal frame work to ensure that whoever will be appointed as prosecutor for a particular case, must have the technical knowledge of every element of the offence, a sound understanding of the likely evidence to be adduced, a reasonable understanding of the Law and the interest of the State. There should also be a check on the powers of the prosecutor to negotiate a plea bargain by resorting to the Attorney General if charges are being dismissed, discounted or the accused is being promised no further prosecution.
Peter Odia, Esq
Human Rights & Accountability Initiative - HURAIN