The problem with Plea Bargain!

The American legal system invented the plea bargain system. At the time that it was invented, it was a way of reducing the legal costs that comes from a long drawn out legal battle. So they figured that if the offender pleads guilty without wasting everybody’s time and more importantly, without wasting tax payers money spent in the prosecution, then the state may as well get him some sort of reduced sentence in exchange.

Essentially, he is not let off the hook, he just gets something off from the normal sentence he would have gotten if he did not enter a plea bargain.

Nigeria got her judicial systems and rules from Britain, her colonial master, but the plea bargain system does not feature in the UK practice, and automatically also did not feature in our judicial codes. It should be noted that in most countries now, the plea bargain system, although not formally codified has found its way into their legal frameworks.

However, in the active days of the EFCC during President Olusegun Obasanjo’s administration, the EFCC started the process of adopting the plea bargain system of justice, albeit informally. However, from examination, the way it was practiced was essentially different from the way the Americans practiced it. The first person to enter into a sort of plea bargain was the then freshly ‘deposed’ governor of Bayelsa, Diepriye Alamasiha. In return for a reduced sentence, he gave away a certain amount of money from the loot that he had purportedly stolen. While DSP remained in detention for close to two years and therefore only had a few days to serve when eventually sentenced because the criminal system counts sentence from the day the offender is arrested and detained, it was not so in the case of former Edo State governor Lucky Igbiniedion. Igbinedion’s conviction changed from a 191- counts to 1 count of not declaring his interest in a bank account in GTB that eventually traced to him, so he only pleaded guilty to that and a 2.9billion embezzlement charge. He agreed to return 500m, and 3 properties, and was given a jail sentence of 6 months of the option of 3.6million naira, which he paid without breaking into a sweat. Meanwhile a man who steals 5000 naira is sent to life time imprisonment in the same judicial code.

In October 2010, Chief Mrs Cecilia Ibru was accused on a 25 count charge of embezzling funds belonging to Oceanic Bank where she was the CEO at that time. When she entered into a plea bargain settlement, she was asked to forfeit assets worth 19billion and her former 18 months jail term was reduced to 6 months, which she spent on a very comfortable mini-home called hospital.

Now, the issue is not that he gave money back, but the fact is that the convicted person needs not be let off with what is tantamount to a minor slap on the wrist. There should be enforcement of the maximum accruable punishment to someone who commits a treasonable felony against the state.

In Indonesia, the plea bargain is also in force, but what the government of that country does is to first take back all the money stolen, then as much as possible, recover any investments that came from the stolen monies, and this can include properties and any ongoing business that such stolen monies have started. Thereafter, they calculate the interests that should have accrued from the money stolen if it was still in the government coffers, and then the accessed will need to pay that. Finally, the accused then goes to jail for the normal time in prison just like any other felon.

Back to Nigeria, what we are hearing, although not proven is that people who had ‘kept’ monies belonging to Nigeria for themselves are now surreptitiously returning these monies back to government. If this is true, then I have a word of advice to GMB; so as not to waste scarce public funds on prosecuting these people, let us devise the Indonesian way. Collect back all the monies; let them pay interest, then since they have pleaded guilty, the court can simply just give them the maximum sentence for the crime they committed.

I know some our lawyers, especially SANs will not like this, after all, if there is no case, where will the big fees come from? Notwithstanding the fees, I want to trust that no one who loves Nigeria will be waiting to make their monies from defending rogues in administration. In fact, cases of official corruption and financial mismanagement should be treated as treason against the people and the government of Nigeria. The monies now sitting in someone’s personal bank account could have gone to do many things for Nigerians. It could have bought drugs for some remote health facilities thereby preventing so many needless deaths. It could have fixed a couple more kilometres of bad road, preventing the road carnages that has claimed so many lives in the past. It could have helped prevent schools shut down, which has probably turned some single girls into mothers because the idle mind is the devil’s workshop.

Essentially, these official rogues have actually committed crimes against the state and they should be punished the same way we would punish coup plotters or seditionists. If we were in Egypt, or Tunisia, or Algeria for example, the kind of hardship Nigerians experience daily would probably have driven us to protest these grievous rape of our country and whatever government in power at that time probably would have been toppled. The root cause for this overthrow of government by popular mass aggression, if it ever happened, would have been those who looted our wealth, so a sane government ought to maximally punish the perpetrators.

Another reason why we think plea bargain is evil is because it actually brings about a lopsided reward system. So an official who would be content stealing 10million instead steals 100million, using 90million as insurance during a possible plea bargain. When he is harassed, he returns the 90million and keeps the 10million. Then we say he has tried, and everyone feels satisfied. Now, that is actually wrong and evil. In corruption cases, what is being punished are the intention to steal and the actual execution of the intention. We cannot substitute that because the man returned money. The money never belonged to him, so he returning it should not draw an applause.

While it is not yet clear the form the plea bargain process of the current administration will take, we want to start an earlier campaign to say that we must not accept the return of some part of monies stolen by someone being returned as sufficient enough punishment for the crime of looting in the first place.

To do this will not stop corruption, it will simply increase its scale. A strict and total enforcement of recovery of looted funds and an application of the maximum sentence possible should be the way to go. This will serve as deterrence to those who think they can continue to short-change this country, stealing large sums of money, larger than what they intended, knowing that if peradventure they are hounded, they will simply return the excess.