Plea bargain: Vaccination against punishment 

By Levi Obijiofor 

Friday, 3 August 2007 

Anyone who has been watching the legal drama between the Economic and Financial Crimes Commission (EFCC) and former state governors must be wondering whether the tragicomedy is for real or merely a fictional attempt to demonstrate how to prosecute and convict corrupt former governors. The joke is now on the EFCC. It is a joke because, in its campaign to rid the country of the wrong perception that public office holders are licensed to engage in vile self-enrichment and the promotion of graft, the EFCC has gone to bed metaphorically with the criminals it is expected to prosecute. Yes, the EFCC has battled all manner of public officers (and private individuals) at federal and state levels. In fact, official records show that, of the more than 400 cases the EFCC has hauled to court so far, no fewer than 100 persons have been successively convicted. By Nigerian standards, this is an impressive achievement, particularly in a society in which legal technicalities are adopted to prolong court cases and to frustrate the trial process.  

In spite of the successful conviction of some former governors and public officers, many people remain skeptical about the modus operandi of the EFCC, including its contentious techniques for arresting and prosecuting allegedly corrupt officials. Part of the reasons why people do not take seriously the campaign against corruption in its present form has to do with the EFCC’s growing acceptance of plea bargain by former state governors. The second reason for public lack of interest is that the federal government, under former president Olusegun Obasanjo, talked too much about its determination to rid the country of official and unofficial corruption and achieved little. The EFCC’s involvement in the anti-corruption war has also suffered major setbacks, including the agency’s use of false allegations of corruption to deter prominent political candidates in order to ensure that certain preferred candidates were elected in the general elections conducted two months ago.  

It must also be said that the EFCC hierarchy has committed blunder after blunder, distributing lists of alleged corrupt politicians and almost with equal passion amending the lists without official explanations. Shouldn’t the EFCC insist on accuracy of facts before going public with the list of alleged corrupt politicians and public officers? The EFCC is still haunted by the fact that it has never really nailed some high-ranking federal officers or ministers. The cases involving the former Education Minister (Fabian Osuji) and former Senate President (Adolphus Wabara) remain in court and should not count as part of the EFCC success story until judgment has been delivered and both men found guilty.  

In law, it is an accepted principle of justice that punishments must be tailored to suit the crimes. But this does not appear to be the code that informs the techniques used by the EFCC to successfully prosecute allegedly corrupt officials. Plea bargain is the new catch-phrase in the EFCC’s lexicon. When the EFCC arrested and successfully prosecuted corrupt former Police Inspector-General, Tafa Balogun, everyone expected the punishment would match the serious crimes which the disgraced former police boss admitted he committed. With Balogun, it was not just the crimes he committed that undermined his position and shredded his public image. What stank really was that Balogun defecated on the high office he occupied as the nation’s chief police officer. In spite of the seriousness of the offences he committed, the nation was astonished to learn that Balogun entered a plea bargain with the EFCC. In the end, the sentence that Balogun received as punishment was nowhere proportionate to his crimes. Balogun used plea bargain as legal vaccination against severe punishment for his crimes. The punishment delivered by the court was a mere slap on Balogun’s wrist. That particular experience made it clearly evident that convicted criminals in Nigeria are smarter than the law enforcement agents and indeed the laws of the nation.  

I have listened to a range of arguments about why plea bargain is good for the country, good for the accused and good for the prosecution. I remain unimpressed. It has been argued by respected lawyers that plea bargain is useful to all parties in criminal trials. The first argument is that plea bargain saves money and time for the nation because the trial process is shortened and resources are not wasted on a prolonged trial. In return, the argument goes, the accused person receives a shorter sentence because he or she cooperated during the trial. Professor Itse Sagay, renowned Senior Advocate of Nigeria, told the Sunday Vanguard of July 29, 2007, that “plea bargain obviously serves a useful purpose because the state resources can be saved if you have a quick and fast conclusion of trial. Look at the case of Al-Mustapha, it’s been going on now for eight years, there is no resolution in sight….” This sounds like an impeccable argument. But wait for the next point about his support for the plea bargain adopted by Diepreye Alamieyeseigha, the corrupt former governor of Bayelsa State. Sagay said: “Alamieyeseigha’s case, I think it was particularly appropriate because of his health. This is the man who was dragged from the hospital bed in Dubai, taken through the rigours of a full trial, he may not even survive it, at the end of the day.  Who is going to benefit from that and how would the people of Niger-Delta, his area, take it? All these things would have to be taken into consideration…”  

This argument, I must admit, is weak, parochial and unacceptable. When was the judiciary in Nigeria mandated to take ethnic and partisan matters into consideration when accused persons are being tried for serious crimes they committed as individuals? In law, Alamieyeseigha cannot be treated as a special person just because of the anticipated (violent) reaction from his Niger-Delta people. The law is the law. And everyone is equal before the law. I am not persuaded that the ethnic origin or affiliation of an accused person should be given special consideration during a criminal trial. The High Court is not a place to campaign for or propagandise ethnic politics. People who commit crimes and admit to such crimes should face the consequences of their actions, regardless of their ethnic origins. 

Alamieyeseigha’s self-confessed criminal activities must be assessed in order to understand the degree of inappropriateness of the EFCC’s acceptance of his plea bargain. We must keep in mind also the superiority of the moral argument that a law enforcement agency should not enter into questionable “deals” with self-confessed criminals. Up until a Federal High Court in Lagos ruled on Monday this week that Alamieyeseigha must forfeit his empire of houses and companies at home and abroad, including massive amounts of local and foreign currencies he acquired illegally, Alamieyeseigha had projected himself as a lotto winner. He had entered a plea bargain in a smart way to extricate himself from endless imprisonment under the watchful eyes of the EFCC. By the end of Monday, following the ruling by a Federal High Court that stripped him of his assets and money, Alamieyeseigha’s smug smile had turned into a frown.  

Was Alamieyeseigha justified to celebrate the plea bargain that earned him a light sentence? Not by the weight of the stupendous wealth he acquired corruptly when he served as Bayelsa State governor. As the Vanguard newspaper editorialised four days ago, “Those who loot the public till, denying the country resources that should have been invested in its future, eat our tomorrow. No country can survive the near wholesome pillaging of public opportunities under all sorts of guises. Nigeria cannot be an exception.”

There is growing public perception that, by entering into plea bargain with the former state governors, the EFCC is actually inoculating the self-confessed corrupt men against the imposition of severe penalties by the courts. The question must be asked: are the EFCC agents using plea bargains as a backdoor to make things easier for the agency or for men who have admitted freely to criminal behaviour? Indeed, whose interests are served by plea bargains? As an aspect of the law, there is nothing wrong with plea bargain. What should be condemned is the inability of the EFCC to engage in hard bargaining that would offer the devil’s alternative to self-confessed criminals. The EFCC should bargain hard and hard. Self-confessed criminals should be told in no uncertain terms: take it or leave it. The penalty for corrupt enrichment must be tough, punitive and exemplary.