Plea Bargains As Progress

Instinctively, how do we measure political progress? When the present seems better than the past and we have less to complain about? Or when we remain hopeful because though the present remains imperfect, there are indications that the future will be better?

In Nigerian politics, the popularity of the ‘past versus present’ yardstick (the former approach) as a measure of progress is virtually unchallenged. We cannot afford to rely on hope (the latter approach) because the future is an unknown variable. Hence, Nigerians are more accustomed to using tangible indicators like roads, public utilities, media coverage, political violence and the national mood as their variables of progress. A recent political trend has tested this particular yardstick of progress – the curious case of plea bargaining.

Robin Hood, the folk legend (and criminal) is idolised around the world for stealing from the rich and giving to the poor. A philanthropic hero, yes, but a criminal nonetheless. Perhaps this makes him a fair symbol of Nigerian leaders as they try and recover stolen funds. A political compromise has now been reached at the highest levels of government: if stolen funds are returned, guilty parties will not suffer terrible fates.

Plea bargaining, as this is called, has become the popular route for embattled officials to avoid jail-time and benefit from their positions as influential law-breakers, while common men found guilty of less grievous crimes languish in prison.

First name, Federal Government, Last name, Prison Warden

Many questions pervade. Does the government have the moral and legal authority to exonerate those who steal from Nigerians? If they do, is that within the remit of the Federal, Legislative or Judicial arm of government? The question is even more pressing considering that plea-bargaining is a relatively alien concept to Nigerian criminal jurisprudence. Although Section 14(2) of the EFCC Act 2004 introduces it, the Lagos State Administration of Criminal Justice Law, 2007 (section 75) is the only state legislation that specifically mentions it.

As a judicial tool, plea-bargaining grants the accused concessions including lenient sentencing and dismissal of charges in return for a guilty plea. However, one can argue that such concessions do not adequately ‘meet’ the crimes.

A typical example is the 2005 case of the former Inspector-General of Police, Tafa Balogun, who was handed a six-month concurrent jail term (minus the 67 days already spent in detention) and a lazy fine of ₦500,000 per count (8 counts in total) for syphoning billions of Naira belonging to the Police Force.

The pattern repeated itself in the 2013 case of John Yusuf, an Assistant Director of the Police Pension Board. After allegedly misappropriating over ₦32 billion, a guilty plea feather-slapped him with the option of a ₦750,000 fine or two-year sentence. In effect, the full backing of our nation’s jurisprudence equated a ₦750,000 fine to the hardship brought to the distraught members of the Police Force and their families.

In the same vein, the money laundering case of the late Diepreye Alamieyeseigha of Bayelsa State was resolved via a plea bargain as he relinquished some assets to avoid a stiff prison sentence. Similar tactics were played out in 2008 out by former Governor Lucky Igbinedion and former CEO of Oceanic Bank, Cecilia Ibru. To what end? The practice of plea-bargaining in Nigeria is neither exemplary, punitive nor compensatory. 

Repercussions, thy name is Nigeria 

These cases fuelled fears that plea-bargaining gave offenders the legal backing to enjoy their “loot” after forfeiting a portion to the Government. But even in 2016, the message remained the same - sacrifice a fine and a few months of bad press for years of stolen taxpayers’ money. Politicians have little to fear if the only risk they foresee is their names dragged in the media and a small cheque issued to the government.

But, perhaps there are silver linings to the plea bargain cloud. Hastening the lengthy process of criminal prosecution and enabling the government to retrieve stolen public funds remains valuable. But it does not change the fact that stealing public funds is illegal, unlawful and morally reprehensible. Allowing offenders to return a portion of their loot and walk away creates poor incentives and distorts traditional ideas of crime and punishment. If the plea bargain is a legitimate tool in corruption cases, why not apply it to other criminal cases? Thieves and brigands, accused of stealing petty cash or cattle should be extended this same legislative pardon.

Years on

It is laudable that criminals are being brought to justice under President Buhari’s government; however, the system still creates perverse incentives, and we have a long way to go to achieve some semblance of stable progress. It is not enough that stolen funds get returned periodically (and I say periodically with great shame), we must mitigate the circumstances that encourage these “mishaps”. Balogun (2005), Igbinedion (2008), Alamieyeseigha (2013) and Yusuf (2013), have now morphed into Dasuki (2015), Diezani (2015) and Metuh (2016). With past and present so similar, plea bargaining surely cannot be counted as progress. 

Just like riding a bicycle, keeping the pedals (castigating “steal and return”) in motion will move us forward. However, if the chains (the instruments of progressive change – the Legislature, the Police, INEC, the Judiciary, the electorate and the media) are broken, no matter how fast we pedal, we remain rooted to the same spot – a mirage of progress.

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