Administration of Criminal Justice in Nigeria (4) By Ebun-Olu Adegboruwa, Esq.

In this concluding part, we shall examine the vexed issue of plea bargain in criminal cases and the bold steps taken through the Administration of Criminal Justice Act (ACJA), 2015, to achieve speedy dispensation of criminal cases. It is however important to note quickly, that in relation to matters of bail for the suspect, a landmark innovation of ACJA 2015 is the courageous abolition of the discrimination against women as sureties for the bail of suspects. Section 167 (3) provides that “a person shall not be denied, prevented or restricted from entering into a recognizance or standing as surety for any defendant or applicant on the ground only that the person is a woman”. A passing discussion of some matters related to bail will also be made.

Section 161 (1) has simplified the regime of bail in capital offences, by making statutory clarifications on the very contentious issue of ‘exceptional circumstances’, which are now limited to ill health of the defendant that is of such a nature that there are no medical facilities to take care of the illness by the authority detaining him. It is however unfair on a defendant, to compel him to secure a qualified medical practitioner employed in a government hospital to confirm his state of health. Since prosecution is still majorly the responsibility of government, it is wrong to leave the fate of a defendant who is sick in the hands of another officer of the same government. This is an indirect indictment of medical practitioners in private practice or private hospitals, some of which are better equipped than many public hospitals. The second issue with this is that the appellate courts have since held that it is wrong for trial courts whilst granting bail to the defendant, to ask the prosecutor to verify the addresses of sureties furnished to take the bail of the defendant. The same principle should apply in the case of the ill health of the defendant. This is indeed a task for the Nigerian Medical Association to take up on behalf of all medical practitioners in private practice.

Section 162 has now clearly reinforced section 35 of the Constitution on the liberty of the defendant, by making it compulsory for the court to admit a defendant to bail in all non-capital offences, unless there is reasonable ground to believe that the defendant may commit another offence, or may attempt to evade his trial, influence, interfere with or intimidate witnesses, or interfere in the investigation of the case, attempt to conceal or destroy evidence, prejudice proper investigation or jeopardize the objectives of criminal justice administration. What is then required in all formal applications for bail, is for the defendant to address these factors one after the other, in the affidavit in support of the application.

It used to be the norm that the factors and principles defining limitation of actions could only apply in civil cases. By section 92 of ACJA however, a six-year limitation period has now been imposed upon private complaints in respect of offences liable to summary conviction. Without taking the escape route of public office holders who now have their cases determined within a specified period, ACJA has attempted to achieve speedy determination of criminal cases, by coming down heavily on frivolous adjournments and delays. Under and by virtue of section 396 (3), upon his arraignment, the trial of the defendant shall proceed from day to day until the conclusion of the trial. This is pure self-delusion though, as far as the present-day circumstances of Nigeria are concerned. Few courts in Nigeria can ever boast of day to day hearing of cases, due to constant disruptions of the judicial calendar, by several other factors. Conferences and seminars are fixed for the most odd times, most judicial officers are overburdened with too many cases, as where, for instance, a judge in Lagos State has about 600 cases to deal with on the average! Although Lagos State pioneered the classification of courts into civil and criminal divisions, it has since been discovered not to work effectively. First, it does not help the profile of a judicial officer, to tie him down to a specific area of law, when he was trained in the university and in the Law School, as a general practitioner. Second, limiting judges to certain areas of law in the adjudication of cases will not help their judicial career when eventually they are elevated to the higher bench, where such categorization does not exist presently. Third, the categorizations are seasonal and for limited periods of time, not exceeding two to three years, given that almost every new chief judge would want to achieve some measure of control and influence upon assumption of office, by tinkering with postings of judges. So, for instance in Lagos State, most judges have carryover of cases from their previous judicial divisions, which they must conclude, which now make some of them to combine civil, criminal, family and even commercial divisions, all in one.

By section 396 (4), ACJA pretends to be a legislation outside Nigeria, when it states that where day to day trial is impracticable after arraignment, no party shall be entitled to more than five adjournments from arraignment to final judgment, provided that the interval between each adjournment shall not exceed 14 working days. In section 396 (5), it is stated further that where it is impracticable to conclude a criminal proceeding after the parties have exhausted their five adjournments each, the interval between one adjournment to another shall not exceed seven days inclusive of weekends. By simple arithmetic, it means that both the defendant and the prosecution can have ten adjournments altogether and thereafter, unlimited adjournments not exceeding five days interval. It is nothing but a convoluted piece of drafting, to have limited adjournments in unlimited fashion. The reality of present day Nigeria is that no legislation should attempt to limit or gag the discretionary power of the courts or subject judicial officers to undue haste or pressure, in the absence of other corresponding and complimentary factors, facilities and equipment, as exist in the other jurisdictions that we are trying hard to emulate.

In situations where a judge is faced with multiple criminal cases, one charge running with about 170 counts, with bundles upon bundles of documents, about 50 witnesses, some of them forensic experts that have to be thoroughly examined and cross-examined, then how do you ask a human judge to handle fifty of such cases and conclude their trials in 140 days and still be alive to deliver the judgments? The State is simply living in self-denial, with these outlandish provisions. The frustrations being experienced by the State, by the victims of crime and indeed society at large are all well appreciated, but the solution is to embrace a holistic revolutionary approach to tackling the issues of delay in criminal justice administration, rather than trying to kill judges with crowded judicial calendar.

Now to plea bargain. This has not been part of our criminal justice system until the promulgation of the Economic and Financial Crimes Establishment Act, which hitherto authorized the agency to compromise some cases in exchange for recovery of assets or money. So, it was excusable to some extent then, to embrace the idea of plea bargain, in corruption cases where the target is mainly recovery. However, ACJA has now codified the regime of plea bargain in section 270 thereof, outlining a very robust and detailed procedure for plea bargain. From these provisions, it would seem clear that the objective of plea bargain generally is to avoid the consequences of long trials and delayed justice, especially to the victims of the criminal conduct. Section 270 of ACJA provides that the defence can write to the prosecution for plea bargain, while the prosecution can equally enter into plea bargain with the defendant, with the consent of the victim or his representative, during or after the presentation of the evidence of the prosecution, but before the presentation of the evidence of the defence.

Different schools of thought exist in respect of plea bargain. While some strongly believe that it is merely a slap on the wrist of a criminal, some others view it as a smart tactic by the State to achieve conviction by stealth. When one considers the length of time it takes to secure conviction in very serious criminal cases, the absence of forensic criminal investigation, the period of appeal up to the highest court of the land and the general perception of the public that the courts are ineffective in punishing influential defendants, then one cannot but appreciate the frustration of the State in adopting this abridged method of criminal justice. As far as corruption cases are concerned, plea bargain is still the best option so far, at least for recovery and restitution of looted assets. In this regard, what was alleged to have been stolen must be properly verified and audited, and then the defendant must be willing to return all that he has stolen. But even at that, plea bargain cannot avail in all general cases of criminal misconducts. A defendant who has opted for plea bargain should still be made to carry the stigma of his thievery or felonious act, by ensuring that he does not hold any public office again, that he is not allowed to be a director of any company and he should be made to forfeit any national award or honour that was previously conferred on him. There must be something to show, to all and sundry, that the defendant was once a thief or a confessed felon, who cleverly escaped his due jail term, by returning all the he stole. Then we will all know that we are serious about reforming our criminal justice administration.

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