Plea Bargaining In Economic and Financial Crime: A Deterrent or an Encouraging Factor?

Israel Dinne, Abuja

On the 4th day of June 2004, the Economic and Financial Crimes Commission (Establishment) Act with its 47 Sections as enacted came into effect.

The Commission therein established was vested with a long list of functions and special powers which can be summarized as the investigation of ALL financial crimes, the co-ordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority among others.

We will not forget to mention that the Commission also has the mandate to adopt and apply measures which will certainly eradicate the commission of economic and financial crimes (and we must keep reminding ourselves of the letter of encouragement written by Peter the Apostle to the Jewish Christians in 1st Peter 4:17 where he wrote that ‘’For the time has come for judgment, and it must begin first among God’s own children. And if even we who are Christians must be judged, what terrible fate awaits those who have never believed in the Lord?’’).

There is no doubt and nothing novel again in stating that Nigeria have suffered and lost a lot to economic and financial crimes before the advent of all these regulatory and preventive legislations in this area till date even in their presence as the plethora of incidents and court cases both decided and pending have shown.

Economic and financial crimes have been defined under Section 46 of the EFCC Act to mean ‘’the non-violent criminal and illicit activity committed with the objectives of earning wealth illegally either individually or in a group or organized manner thereby violating existing legislation governing the economic activities of government

and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms deal, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining,

tax evasion, foreign exchange malpractice including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods, etc’’ though the writer here has a lot of issues and disagreement with the above definition.

Our laws seems to be sufficient in creating, defining and stating the punishment for all the criminal acts one may envisage and that thrives in Nigeria.

However, it has been a subject of divergent opinions on the adequacy or otherwise of the punishments set out for these actions.

Economic and financial crimes have proofed to be capable of coming up in different forms and styles including those stated in the definition section, those that have been identified and labelled a crime in Nigeria has their attendant punishments set out in the relevant laws.

All the crimes provided for under the EFCC Act as well as under those laws which it regulates by virtue of its Section 7 (2), are all allowed to be tried by the Federal High Court, the High Court of the Federal Capital Territory or the High Court of a State as the case may be.

Presently, in the Federal High Court and the High Court of the Federal Capital Territory, criminal proceedings are regulated by the provisions of the Administration of Criminal Justice Act 2015 (ACJA).

A proper look and study of the ACJA shows its segmentations and succinct provisions on the procedures for different crimes and stages to ensure that in criminal administration, justice is properly attained and done.

One of these is as provided in Chapter 28 of the ACJA which deals on Plea Bargain and Plea Generally.

Proceedings and the procedure under plea bargain can be referred to as being sui generis, and Section 270 of ACJA painstakingly and explicitly outlined the guidelines in its 18 sub-sections which made it the longest section among the 495 sections of the Act.

The whole essence of the section and the guidelines set out therein is certainly one of the ways to ensure quick dispensation of justice, saving judicial time and decongesting of cause lists.

An understanding of this plea bargain process can in a nutshell be described as a situation where a defendant pleads guilty to the offence he/she is being tried of but goes ahead to take responsibility/bear the punishment of such offence in part – mostly less than the prescribed punishment.

This process can be initiated either by the defendant, through his representative or even the prosecutor.

The term is usually discussed and agreed upon between the defendant and the prosecutor and where practicable, the victim and at this point, the term is presented to the Court who has little or no contribution to make and where he does, it only comes in the form of enquiry or suggestion.

In coming to an agreed term, the prosecutor is discouraged from entering into this bargain with the defendant if IN HIS VIEW the offer IS NOT in the interest of justice, the public interest, public policy and the need to prevent abuse of legal process.

On the other hand, he is also persuaded to consider certain factors listed in Section 270 (5)(b)(i) – (ix) in determining whether the offered bargain is in the public interest.

In economic and financial crimes, the mostly available punishments upon conviction are restitution, forfeiture, imprisonment or fine, and if the plea bargaining doctrine is applicable to ALL crimes including economic and financial crimes, and YES IT IS, and if it’s actual meaning remains ‘’I am really guilty of this offence which punishment is 100% restitution, forfeiture, imprisonment or fine,

but for 1, 2 or 3 reasons, I am sorry about the above act/omission of mine so punish me at 40% restitution, forfeiture, imprisonment or fine and let me go’’, and again YES, that is the import.

THEN, it leaves more to be desired on the determination of our laws to do justice in these matters and come up with measures capable of adequately punishing the offenders and as well constitute a deterrent measure to the ‘’lords’’ and recalcitrant perpetrators and prospective offenders of economic and financial crimes.

It cannot be overemphasised that equity and the law is not expected and cannot lend itself to be used as a machinery/engine of fraud or be seen in any way to allow a man that is guilty of an offence (a criminal who is perceived as a danger to the society) to go off the hook and walk freely on the streets for the mere fact that all the actors involved desire quick dispensation of justice and for the sake of ‘’Public Interest’’.

We had earlier discussed the injustice of the administration of criminal justice system on the victim (on this page) most times and the issue here is not left out since going by the provided definition of economic and financial crime and other relevant sections of the Act, there is hardly any of them that referred to the pacification of the victim as we will not lose sight of the fact that there is no crime that is a crime without a victim.

Back to the issue here, where in a case plea bargain is initiated and successfully carried out in an economic and financial crime, it goes without saying that the defendant in that case have successfully been allowed to go home and enjoy part of the proceeds from his criminal enterprise.

The fact that the prosecutor who this process is LARGELY left at his discretion is almost always vulnerable and accessible to these ‘’crime lords’’ (History have shown that it is mainly the high class members of the society that do engage or are behind almost all the economic and financial crimes in the society) who have the necessary and irresistible offers to make to these prosecutors is another issue to consider if the fight against economic and financial crimes will succeed.

Also, recalling that one of the conditions upon which the prosecutor is advised to OFFER A PLEA BARGAIN TO A DEFENDANT charged with an offence is in a situation where the evidence of the prosecution is INSUFFICIENT to prove the offence charged beyond reasonable doubt as seen in Sections 270 (2)(b) and 270 (2)(a).

As contrary and contradicting the above is to the basic criminal administration requirements, the questions then are, will a prosecutor ASSUMING HE HAS, provide evidence against the defendant that will be sufficient to prove the offence beyond reasonable doubt where he has the intention to offer a plea bargain to the defendant?

Can a prosecutor set out with the intention to offer a plea bargain to the defendant for any reason in a matter?

Responding to the above question, the answer will be in the affirmative as reasons abound why a prosecutor will do so, either to ensure that he records more cases as being handled and concluded by him, or to meet the set target for the period which is capable of being part of his promotional appraisal or even because of the persons involved as the defendant or those behind and ‘’sponsoring’’ the defendant.

Unfortunately, it has come to stay with us and if the defendants or prosecutors in every economic and financial crime decides to offer or receive a plea bargain, we may sooner than later inadvertently establish an ugly enterprise so interesting and lucrative that a large number of the citizens will be tempted to give it a trial and may succeed.

Whatever plea bargain intends to achieve in an economic and financial crime, we must continue to remember that while justice delayed is justice denied, JUSTICE RUSHED CAN BE JUSTICE CRUSHED.

By: Dinne, Israel Chukwuemeka Esq., Abuja
08068613825