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THE PRACTICE OF PLEA BARGAINING IN NIGERIA: ANTITHESIS OF THE

BROKEN WINDOWS THEORY OF CORRUPTION

ABSTRACT

Adeleke Lateef Adeyemi PhD

College of Law, Crescent University, Abeokuta, Ogun State.

Abstract

Corruption is the chief catalyst behind the underdevelopment drive of Nigeria. The country

ranks 39th on the list of 175 corrupt nations of the world. In fact, corruption could be

conceived as the fifth factor of production in Nigeria, which has plunged all sectors of the

country into the dungeon of unproductiveness, and makes them to continuously grope for

survival in a vicious circle. The broken windows theory of corruption suggests that a

community should promptly act against the smallest illegality, to create a bond of social order

that discourages serious crimes. One unrepaired broken window is a signal that no one cares

and breaking more windows cost nothing. This theory is a metaphor for the empirical

connection between legal laxity and promotion of corruption, which plea bargain signifies in

Nigeria. Plea bargain allows an accused to plead guilty to a lesser offence in exchange for a

lighter sentence. It undermines public trust, which is the kernel of good Governance. The

concept is not pivoted on any principle of punishment, neither retribution, which wreaks

vengeance by the society on behalf of itself on the accused, nor the forward looking

utilitarian principles of deterrence, rehabilitation and education of the general public. This

paper seeks to critique plea bargain as a concept in Nigerian anti-corruption law and examine

the application of broken windows theory of corruption, as panacea to endemic corruption in

Nigeria.

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Introduction

Corruption is a hotchpotch of deceit, concealment, betrayal of trust, abuse of office,

and misuse of public power for personal benefit. Corruption is a complex phenomenon with

polygonal causes and multidimensional effects on many nations around the World. Such

effects include; economic and political underdevelopment as well as cultural and moral

atrophy. Khan (1996) defines corruption as ‘‘an act which deviates from formal rules of

conduct governing the action of someone in a position of public authority’’. In a broader

sense, Ekiyor (2005) defines corruption as follows:

Unlawful use of official power or influence by an

official of the government either to enrich himself or

further his course and any other person at the

expense of the public, in contravention of his oath

and contrary to conventions and laws that are in

force.

Corruption is not a feature of one period in human political history nor of a particular

Nation of the world, it is endemic in both authoritarian and party system of government

(Gould and Kolb 1964). Corruption is as old as the history of modern man; Bardhan (1997)

quoted Kautiliya in a treatise on public administration dating back to 4th century BC in India

as saying:

Just as it is impossible not to taste the honey or

poison that finds itself at the tip of the tongue, so it

is impossible for a government servant, not to eat up

at least, a bit of the king’s revenue. Just as fish

moving under water cannot possibly be found out

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 either as drinking or not drinking water, so

government servants employed in the government

work cannot be found out while taking money for

themselves.

The above quotation is a manifestation of the global nature of corruption and how it is

inherent in human society of different ideological hues. Although corruption is a characteristic

of all nations in varying degrees, it has an overwhelming adverse effect on developing

countries. It does not only undermine internal economic growth, it also discourages foreign

investment, it reduces the resources available for infrastructure, public service and anti-

poverty programmes (Robinson 1998 p. 2-8). Corruption is so deep - rooted in modern

society that despite its being inimical to sustainable development, poverty reduction and good

governance, it is still considered as a useful tool to grease the wheels of progress in

overregulated society (Roger 2012 p. 1254) and having the opposite effect of circumventing

cumbersome regulation and facilitating business transaction (Ades and Di Tella 1996 p. 6 -

11). According to Johnston (1997) corruption has the serious effect of undermining political

institutions by weakening the legitimacy and accountability of governments. It also

undermines public’s trust in public institutions essential for good governance and orderly

society (Roger supra). Therefore corruption is a potential source of both economic and

political instability.

In realisation of the foregoing and increased concern about the enormity of problems

and threats posed by corruption to stability and security of Nations, institutions and values of

Democracy, all nations of the world became united in the war against corruption. This global

consciousness has led to numerous international treaties and multilateral instruments to

prevent and combat corruption. These include the following among others: Inter-American

Convention Against Corruption, adopted by the Organisation of American States on 29th

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March 1996, The Convention on the Fight against Corruption involving Officials of the

European Communities or Officials of Member States of European Union, adopted by the

Council of European Union on 26 May 1997, Convention on Combating Bribery of Foreign

Public Officials in International Business Transactions adopted by Organisation for Economic

Co-operation and Development, on 21st November 1997, the Criminal Law Convention on

Corruption, adopted by the Committee of Ministers of Council of Europe on 27th January

1999, the Civil Law Convention on Corruption, adopted by Minsters of Council of Europe on

4th November 1999,United Nations Convention on Transnational Organised Crimes adopted

by the United Nations General Assembly on 29th September 2003 via resolution 55/25, and

African Union Convention on Preventing and Combating Corruption, adopted by the Heads

of State and Government of the African Union on 12th July 2003.

Corruption in Nigeria

Nigeria is one of the developing Nations of the world, whose socio-economic life is

driven by corruption. This phenomenon has kept Nigeria at the lowest ebb of national

development for many years. The trio of incidental, institutional and systemic corruption are

endemic, as they continue to dictate the pace of Nigeria’s economic and political

development. However, Transparency International Corruption Perception Index (TI CPI)

reports, which portrayed Nigeria as the second most corrupt nation for the year 2000, 2001,

2002, 2003 and the third most corrupt country for 2004, seem to engender a national

consciousness against corruption, culminating to the enactment of Independent Corrupt

Practices and Related Offences Act 2000, which established the Independent Corrupt

Practices and Other Related Offences Commission (ICPC). The commission was armed with

the mandate to receive reports, investigate and prosecute persons who have committed

offences created by the Act; to examine, review and enforce the correction of corruption-

prove system and procedures of public bodies, with a view to eliminating corruption in public

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life; to educate and enlighten the public on the evils of corruption with a view to enlisting

public support. Similarly, the Economic and Financial Crimes Commission (EFCC) was

established in 2003 to investigate financial crimes; such as advance fee fraud and money

laundry. The commission was established partly due to the pressure from the Financial Action

Task Force (FATF) which named Nigeria as one of the 23 non-cooperative in the

international community’s effort to fight money laundry. Nonetheless, Nigeria is still an

example of countries where corruption persists in spite of the existence of formal democratic

institutions (Singh, 1997 p.626 - 638). As a matter of fact, Nigeria presently ranks 39th out of

the 175 most corrupt nations of the world on the TI CPI current ranking. In her over fourteen

years of war against corruption, Nigeria is expected to have experienced a more drastic

improvement.

The reason for the persistence of corruption in Nigeria is not the absence of anti-

corruption agencies, but lack of political will to ensure that the agencies genuinely succeed in

fighting corruption to a standstill. For instance, the adoption of plea bargain in the

prosecution of corrupt public officials is a procedure that encourages, rather than deters

corruption in Nigeria. Perhaps because embezzlement is a white collar crime, it is common in

Nigeria today, to allow highly place public officials accused of corruption to plea bargain,

instead of facing the full wrought of the law. White collar crimes are characterised by deceit,

concealment, or violation of trust and are not dependent upon application or threat of physical

force or violence, such acts are committed by individuals or organisations to obtain personal

or business advantage (Marilyn, and Donna, 2009). It must be noted however, that white

collar crimes are not without victims, diversion of public funds due to corruption denies

millions of Nigerians social services which could make their lives meaningful. This paper

contends that the concept of plea bargain does not adequately punish corrupt officials,

importantly; justice is not done to the victim of the crime, which is the masses or the society.

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Due to this laxity, corrupt practices permeate every sector of the Nigerian society. According

to Adebimpe, Adeleke and Yusuf (2010) every regime provides programmes for combating

corruption with the view to ameliorating poverty, as corruption has been popularly accepted

as a causative agent of poverty and vice versa. Yet there is no past administration that has not

been accused of corruption. The only difference is the degree of corruption. Okeomah

(2010), cited in Adeleke (2012) captured the graduating degree of corruption in Nigeria as

follows:

The rising degree or historical trajectory of the

development of corruption in Nigeria can even be

calibrated through totemic symbols using varying

animals' capacity to devour their prey. The point is it

aggravates with each succeeding government,

starting with Dove Grade of pre-1960s to Goat

Grade of the 1960s to Vulture Grade of the 1970s to

Dog Grade of the 1980s to Lion Grade of the 1990s

and last being Demon Grade which is the millennial

hybrid of the variants (Okeomah, 2010).

The persistence of corruption in Nigeria as described above is a manifestation of the

absence of political will to truly fight corruption, especially with the application of plea

bargaining in the prosecution of highly placed corrupt individuals. Things had really fallen

apart, as the hunters of the anti-corruption agencies learn how to shoot without missing; the

birds of corrupt officials had also learnt how to fly without perching. In order to restore

community control, which is essential for maintenance of social order, application of the

broken windows theory of corruption by anti-corruption agencies is a veritable panacea to

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pandemic corruption in Nigeria. This will have a far reaching positive effect in the war

against corruption than the legal laxity which plea bargain represents.

Plea bargaining

Plea bargaining is a process in criminal proceeding involving negotiation between the

accused and the prosecutor with the aim of arriving at a mutually satisfactory disposition of a

criminal case. The Black’s Law dictionary (8th edition) defines plea bargaining as follows:

A negotiated agreement between the prosecutor and

criminal defendant whereby the defendant pleads

guilty to a lesser offence or to one of multiple charges

in exchange for some concession by the prosecutor

usually, a more lenient sentence or a dismissal of

other charges (Black 2004).

Nchi (2000) defines plea bargaining as:

An informal arrangement in which the

accused person agrees to plead guilty to one

or some charges in return for the prosecution

agreeing to drop other charges or a summary

trial.

According to Osborn’s Concise Law Dictionary, plea bargaining is:

An arrangement by which a defendant in

criminal proceeding may agree to plead

guilty to one or more charges in return for

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 the prosecution extending some advantage to

him, e.g. dropping another charge.

Kupolati (2007) defines plea bargaining as follows:

Plea bargaining otherwise called plea

agreement or plea negotiation is

described as the process whereby the

accused and the prosecutor in a criminal case

workout mutually satisfactory disposition of

the case subject to court approval.

Simply put, plea bargaining is a process that makes it possible for criminal prosecution

to be concluded even without trial, the process involves compromises between the accused

and the prosecutor. The parties trade risks and entitlements, while the accused relinquishes the

right to go to full trial, the prosecutor surrenders the right to seek the highest sentence or

pursue the most serious charges possible (Robert and William 1992). According to Oguche

(2011) plea bargain has semblance of a contract to some extent, as it contains most if not all

ingredients of a valid contract, viz; offer, acceptance, consideration, legality and intention to

create legal relation. Offer comes in form of concession when some charges are dropped

against the accused, once the offer is accepted there could be cross or counter offer from the

prosecutor. Consideration is the plea of guilty by the accused, it is valuable because the

burden of proof lies on the prosecutor and it saves him the energy and time of proving the

accused guilty. Intention to create legal relation is also established. In plea bargaining, three

major elements are involved, charge bargaining, sentence bargaining and fact bargaining.

Charge bargaining involves the negotiation of the actual charge or charges the accused will

face at trial. In return for a plea of guilty to a lesser charge the prosecutor dismisses the higher

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charge. In sentence bargaining the negotiation requires the accused to plead guilty to the

stated charge in return for a lighter sentence. While fact bargaining is an admission of certain

facts in return for an agreement not to introduce certain other facts into the case. This saves

the prosecution the trouble of going through trial and afford the accused the opportunity of a

lighter sentence (Abdullahi 2012).

A legal procedure with all the above features does not appear to have justice as its

primary goal, because justice is not a single phase affair but a triangular one. In a criminal

matter, justice must be done to the state, i.e. the court and the masses, to the victim and the

accused (Onagoruwa v. IGP 1991). Plea bargaining as practice in Nigeria with respect to high

profile corruption cases does not do justice in this sense; in fact, it reduces human liberty and

criminal sanction to commodities that can be negotiated at the expense of justice and public

trust.

Plea bargain in Nigeria

The origin of plea bargaining has been traced to the American judicial system,

American Judges appreciated the workload relief associated with plea bargaining during the

explosion of personal injury cases that was a concomitance of the industrial revolution

(Oguche 2011). Today, an average criminal case in America is disposed through plea

bargaining. In Santobello v. New York (1971) the American Supreme Court held as follows:

The disposition of criminal charges by

agreement between the prosecutor and the

accused, sometimes loosely called ‘plea

bargaining’, is an essential component of the

administration of justice. Properly administered,

it must be encouraged.

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 Form the above decision of the American apex court, it is settled that plea bargaining

is entrenched in the American legal system. However the same cannot be said of its

application in Nigeria until the recent enactment of the Administration of Criminal Justice Act

(ACJA) 2015. A former Chief Justice of Nigeria, Honourable Justice Dahiru Musdapher at the

fifth annual general conference on the section on legal practice of the Nigerian Bar

Association held in Abuja in 2011, was reported by Nigeria Tribune of 16th November 2011

to have said that:

Plea bargaining is a novel concept of dubious origin. It

has no place in our law – substantive or procedural. It

was invented to provide soft landing to high-profile

criminals who loot the treasury entrusted to them. It is

an obstacle to our fight against corruption. It should

never again be mentioned in our jurisprudence.

The former CJN reiterated his opposition to plea bargaining at a workshop organised for

Judicial Correspondents as reported by the Vanguard Newspaper of 6th March 2012 as

follows:

The sneaky motive behind it introduction into our

legal system or its evident fraudulent

application....you will see also that plea bargain is not

only a subordination of public’s interest to the interest

of criminal justice administration, but worst of all,

the concept generally promotes a cynical view of the

entire legal system.

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 The above view of the former Chief Justice of the Federation portrays plea bargaining

as a means of deploying the apparatus of justice primarily on base desires or selfishness of a

class of the Nigerian society, it also makes the public to be sceptical of the integrity and

sincerity of the criminal justice system. Worst still, it is jadedly distrustful or contemptuous to

the accepted moral standard. Viewed in the context of the broken windows theory of

corruption, it shows that the Nigerian society does not care to repair any broken window;

therefore more windows could be broken. Hence corruption permeates every sector of the

Nigerian society.

Arguments for Plea bargaining

The proponents of plea bargaining in Nigeria have canvassed the argument that the

concept was indirectly inferred in some statutes in the country and it is therefore not baseless

as the former CJN argued, even before ACJA 2015. The various arguments canvassed could

be summarised in the words of Anafi (2008) when he stated thus:

With due respect, the opinion that the plea bargain is not in our

law is incorrect, fallacious and unsupportable. In as much as

we agree that there is no formal legislation on the principles

regulating the applicability, limit and procedures in the

adoption of plea bargain, we, with utmost respect, disagree that

there is no provision in our law providing for or supporting

plea bargain as there are well settled provisions of the law

incorporating directly or indirectly the applicability of the plea

bargain. Statutes might have used some other nomenclatures

about the same concept. What is important is the end result.

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 The above argument is rather an admission that the concept of plea bargaining was

unknown to Nigerian law rather than a denial. If there was no formal legislation on the

principle regulating the application of the concept as stated above, Nigerians cannot rely on

indirect reference or use of varying nomenclature to mean the same thing, like the proponents

of plea bargain want us to believe. If the practice of plea bargain in Nigeria must be justified it

must be statutorily clear that our law provides for it, indirect reference is not useful where

justice is at stake. The major statutory provision relied upon by the proponents of plea bargain

before the enactment of ACJA 2015 was section 180 (1) of the Criminal Procedure Act (CPA)

applicable in southern part of the country, which provides as follows:

When more charges than one are made against a person and a

conviction has been had on one or more of them, the

prosecutor may with the consent of the court withdraw the

remaining charge or charges, or the court of its own motion,

may stay the trial of such charge or charges.

The above provision was the fulcrum of the argument of the proponents of plea

bargain in Nigerian law. The section provides that after conviction has been secured against

an accused on one or more charges, the prosecutor or the court may withdraw the remaining

charges. A cursory look at this provision reveals no link with plea bargaining. In plea

bargaining the question of conviction does not arise in the main. Simply put, the process in

plea bargaining requires the accused to plead guilty to one or more charges against him before

trial, in return for a lighter sentence. It does not apply after conviction has been secured on

one or more charges. It goes without saying, that the provision of section 180 (1) of the CPA

has nothing to do with plea bargaining as argued by the advocates of the concept. It is

noteworthy however, that the CPA has been repealed by section 493 of the ACJA 2015.

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Another provision often relied upon for the practice of plea bargaining in Nigeria is section 14

(2) of the EFCC Act which provides as follow:

Subject to the provision of section 174 of the

Constitution of the Federal republic of Nigeria

1999 (which relates to the power of the Attorney-

General of the Federation to institute, continue or

discontinue criminal proceedings against any

person in any court of law), the commission may

compound any offence punishable under this act

by accepting such sums of money as it thinks fit

not exceeding the amount of the maximum fine to

which that person would have been liable if he

had been convicted of offence.

Yet, the above provision is not the same as plea bargaining; to interpret it as such will

only be a misconception. The section does not provide that the accused must plead guilty

before compounding his offences. The practice of compounding offences is not strange to the

Nigerian criminal justice system. For instance, appendix C of the Criminal Procedure Code

(CPC) is replete with offences that can be compounded and who has the capacity to

compound them. In the case of financial crime, it is certainly the EFCC that will compound

offences on behalf of the state because it is a crime against the state. Compounding an offence

cannot be interpreted to mean plea bargaining, the main goal of compounding offences is to

encourage amicable disposition of matters, it does not involve conviction much less of

sentencing. Upon compounding of an offence, the proper order made by the court is to strike

out the matter and discharge the accused. Therefore, the proper application of section 14(1) of

the EFCC Act is that once an offence is compounded against an accused person, it is improper

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to still ask him to plead guilty to the charge much less of convicting or sentencing him. The

section cannot be a valid basis for the application of plea bargaining by the EFCC. The only

legislation that provided for plea bargain before the enactment of ACJA 2015 is section 75 of

the Administration of Criminal Justice Law of Lagos state 2007 which provides thus:

Notwithstanding anything in this law or any other law,

the Attorney-General of the State shall have the power to

consider and accept plea bargain from a person charged

with any offence if the Attorney-General is of the view

that the acceptance of such plea bargain is in the public

interest, interest of justice and the need to prevent the

abuse of court process.

The above provision being a state law applicable only in Lagos State, it cannot take

the place of a federal statute and can therefore not be adopted by the EFCC. Despite the fact

that there was no Federal statute that provided for it, plea bargain was still applied in high

profile cases of corruption in Nigeria. As the controversy rages on, the Administration of

Criminal Justice Act 2015 was enacted and provided for plea bargain in its section 270 (1) as

follows:

270 (1) Notwithstanding anything in this Act or in any

other law, the Prosecutor may:

(a) receive and consider a plea bargain from a defendant

charged with an offence either directly from that defendant

or on his behalf;

(b) offer a plea bargain to a defendant charged with an

offence.

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Section 270 (2) prescribes the conditions precedent to the application of plea bargain as
follows:

(2) The prosecution may enter into plea bargaining 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, provided that all of the

following conditions are present:

(a) the evidence of the prosecution is insufficient to prove

the offence charged beyond reasonable doubt;

(b) where the defendant has agreed to return the proceeds

of the crime or make restitution to the victim or his

representative, or

(c) where the defendant in a case of conspiracy has fully

cooperated with the investigation and prosecution of the

crime by providing relevant information for the successful

prosecution of other offenders.

One of the conditions precedent to the application of plea bargain under the ACJA

2015 is the consent of the victim of the crime in question. In case of high profile corruption

cases, the victims are the masses, who suffer excruciating deprivation of social facilities on

account of corrupt practices. The question to ask is whether their consent was sought as

provided by section 270 (2) of the ACJA 2015. Section 270 (2) (b) provides as a condition

precedent to the application of plea bargain, the agreement of the defendant to return the

proceeds of the crime. This is contrary to the practice of our anti-corruption Agencies who set

white collar criminals free after collecting a minute fraction of their loot. The EFCC and

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similar Agencies should therefore reconsider their stand on the procedure that has become so

controversial and generate distrust between the public and the Government.

This distrust is evident in the manner in which plea bargaining is applied to high

profile corruption cases in Nigeria. For instance, in 2008, a former two term governor of Edo

State, Chief Lucky Igbinedion was arraigned by the EFCC before the Federal High Court,

Enugu in charge No FHC/EN/6C/2008 on a 191- count charge of corruption, money

laundering and embezzlement of N2.9b. In a plea bargain arrangement, the EFCC through its

counsel, reduced the 191- count charge to one - count charge of neglecting to make a

declaration of his interest in a particular Guarantee Trust Bank (GTB) account in the asset

declaration form of the EFCC and thereby committed an offence punishable under section 27

(3) of the EFCC Act 2004. The terms of the plea bargain were that the prosecutor would

reduce the 191 - count charge to one - count charge and in return, Lucky Igbinedion will

refund N500m, 3 houses and plead guilty to the one - count charge. In line with the plea

bargain, on the 18th December 2008, the court presided over by Justice Abdul Kafarati

convicted Lucky Igbinedion on the one- count charge and ordered him to refund N500m,

forfeit 3 houses and sentenced him to 6 months imprisonment with the option of paying

N3.6m as fine.

On the 18th day of February 2011, a fresh 66- count charge of corruption and money

laundering was filed against Lucky Igbinedion and others by the EFCC at the Federal High

Court, Benin City in Charge No FHC/B/HC/2011. He was accused of embezzling 25billion

Naira from the coffers of the Edo State Government when he was the Governor. However, in

a ruling delivered by Justice Adamu Hosbon on the 31st day of May 2011, on a preliminary

objection filed by Igbinedion’s Counsel, his lordship held that it would amount to double

jeopardy and abuse of court process to try the former governor again as he had in 2008

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entered into a plea bargain with the commission at the Federal High Court Enugu.

Igbinedion’s name was accordingly struck out from the 66- count charge and the

commission’s denial that there was no agreement with Lucky Igbinedion was to no avail.

What is obvious in this case is that justice was not done to the victim of the financial crime,

the State and the people of Edo. It is certainly not a good bargain for the Commission to

compress and reduce 191 - count charge to one - count charge, neither was it a good bargain

for the commission to accept N500m and 3 houses and allow Lucky Igbinedion to keep

N2.4b and other property. If plea bargaining is contractual, like (Oguche 2011) opines, is it a

good contract for the commission to charge Lucky Igbinedion on a mere non-disclosure of an

account with GTB when there were weightier and more serious count charges on corruption

and embezzlement among the 191- count charges? Is it also a good contract to let Lucky

Igbinedion off the hook on a N2.9b fraud with an understanding not to prosecute him again

when there was a N25b fraud pending against him? The Lucky Igbinedion case is just one of

such many cases. The application of plea bargain in white collar corruption cases in Nigeria

gained notoriety when it was applied in the case of Tafa Balogun, a former inspector- General

of Police who was arraigned on the 4th day of April 2005 at the Federal High Court Abuja on

charges involving about 13 billion Naira obtained via money laundering, theft and other

source. It was also applied in the cases of DSP Alamieyesagha, a former Bayelsa State

Governor, Emmanuel Nwedu and Nzeribe Okoli who were alleged of defrauding a Brazilian

bank of 242 million dollar, their original charge was reduced from 91 to 16. Another instance

is the case of Mrs Cecilia Ibru, an erstwhile Managing Director of Oceanic bank. Perhaps this

is one of the most profitable plea bargaining entered into by the EFCC, Mrs Cecilia Ibru was

made to forfeit asset valued at 191 billion Naira after being arraigned on the 31st day of

August 2009 on a 25 count charge reduced to three. While it is agreed that assets were

forfeited and money was recovered, the various scenarios did not unfold outside the

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knowledge of the masses and the downtrodden, these occurrences strike at the root of public

trust and capable of weakening public order by encouraging future corruption. Majorly, plea

bargain is premised on the fact that it saves time and cost of prosecuting crimes and it is

therefore fashionable in Nigeria where court dockets and prisons are always congested.

Arguments against plea bargaining

Despite the foregoing, the fact still remains that plea bargaining did not have legal

basis in Nigerian law, both substantive and procedural before ACJA 2015. For instance in

F.R.N v. Igbinedion (2014) the Court of Appeal per Ogunwumiju (JCA) held as follows: plea

bargain is as at now generally unknown to our criminal justice administration and indeed

our criminal jurisprudence. Leading credence to the fact that plea bargain was not part of

Nigerian law is the comment of Professor Osunbor a former Chairman of the Nigerian Law

reform Commission on plea bargain and the law reform bill reported in the Vanguard

Newspaper of 7th August 2014 as follows:

But there is an aspect of the bill which is entirely a product

of the Commission. And that aspect deals with plea

bargaining. Plea bargaining has been a topical issue within

the general subject of the administration of Nigeria’s

criminal justice system. We at the Commission discovered

that even though it is being said that Nigeria operates plea

bargaining, there is nothing in our laws that provided for

plea bargaining. So the law enforcement agencies, be it

Economic and Financial Crimes Commission or their like

purporting to be using plea bargaining as a way of

administering criminal justice in the system and they really

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 have no legal basis. There is no legal provision in our law

which allows that.

The above confirms that plea bargain was not part of Nigerian law, but perhaps was

part of the recommendations of the Nigerian Law Reform Commission in the law reform bill

culminating into the ACJA. Even with the recent enactment of the ACJA, plea bargain is an

affront to the existing law on criminal justice in Nigeria. Section 135 (1) of the Evidence Act

2011 provides that a criminal allegation must be proved beyond reasonable doubt. Plea

bargain undercuts this fundamental requirement and more than trial, it’s more likely to result

in conviction of innocent accused persons (Oguche 2011). One of the justifications for plea

bargaining is inherent in the slogan that justice delayed is justice denied. However justice

rushed through plea bargain may also amount to justice crushed. The procedure compels the

accused to plead guilty to some charges in return for a lighter sentence, this is clearly against

his constitutional right provided in sections 35 (2) and 36 (11) of the 1999 constitution as

amended, which provide that no accused person must be compelled to give evidence. Again,

plea bargain empowers the prosecutor to largely determine the fate of the accused person,

while the court merely ratifies the plea bargain arrangement. Plea bargain deprecates human

liberty and the purpose of criminal sanction by ‘‘commodifying’’ them, that is, treating them

as instrumental economic good (Oguche supra).

Importantly, Plea bargain promotes unnecessary leniency for offenders and projects a

cynical view of our legal system. It is noteworthy that corruption is a financial crime and the

object of criminal law is to punish convicted offenders, while punishment also has its own

goal. With the adoption of plea bargaining, the concept of punishment becomes empty and

our criminal law is stripped of its essence. In retribution, punishment is imposed in order to

relief the public’s indignant feelings about a criminal act (Okonkwo and Naish 2005). Plea

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bargaining does not fulfil this purpose as it does not relief the public’s indignant feelings

about high profile corruption cases. Retribution is often generally rejected as a matter of

emotional preference, the utilitarian goal of punishment is also defeated by plea bargaining.

Utilitarian object of punishment is essentially forward-looking; punishment is imposed with

an eye to its future result, the fundamental aim being to prevent further crime (Okonkwo and

Naish supra). Plea bargaining provide soft landing for highly placed corrupt individuals and

allow them to go away with part of their loot, it can therefore not effectively deter similar

crime in the future. Of equal importance as both deterrent and rehabilitative aim of

punishment is the educative goal, i.e. to educate people out of a certain prevalent way of

behaviour (Okonkwo and Naish supra). It is submitted that plea bargain is not effectively

serving this educative purpose to the Nigerian populace about corruption. Hence, corruption

continues to spread like wild fire across every sector of the Nigerian society. Generally,

utilitarian theory of punishment holds that punishment for an offence is justified only by the

future benefit it provides. It is for this reason that utilitarian theories are referred to as

‘cosequentialist’, because they are concern solely with how punishment will affect future

actions and with society’s future aggregate happiness (Matthew 2009). At this juncture, the

question to ask is that, what is the consequence of the application of plea bargain with respect

to the future of corruption in Nigeria? Can plea bargain bring happiness to the greatest

number of people? Considering the fact that corruption has adversely affected every sector of

the Nigerian economy and the public’s trust is lost in virtually every Government. The

dominant opinion in this paper is that plea bargain is an antithesis of the broken windows

theory of corruption which encourages the society to effectively fight every criminal activity.

For the EFCC and ICPC to effectively tackle corruption in Nigeria, it is advocated that the

broken windows theory should be adopted in lieu of plea bargaining.

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The broken windows theory of corruption

Essentially, the broken windows theory of corruption is a metaphor that establishes a

nexus between legal laxity and promotion of corruption in modern society. The theory was

propounded by Roger (2012) but emanates from a landmark article of James and George

(1982), in which they drew a similitude between broken windows and social order. They posit

interalia that ‘‘if a window in a building is broken and is left unrepaired, all the rest of the

windows will soon be broken.’’ It is their argument that ‘‘one unrepaired broken window is a

signal that no one cares, and so breaking more windows costs nothing.’’ Broken windows

theory of social order encourages a community not to condone the smallest illegality, else,

bigger illegalities will permeate such community. This metaphor explains the overall negative

effects of the legal laxity inherent in plea bargaining as practised in Nigeria today with respect

to corruption cases. Every incident of corruption is a broken window which ought to be

repaired through the proper sanction of the law. However, application of plea bargaining does

not allow for proper repairs of broken windows, hence, more windows are being broken

because the law is executed to favour partial repairs of the broken ones.

In applying the broken windows theory of corruption, corruption is consider as a

broken window signifying a breakdown of order in the society. Roger (2012 p. 1255) holds

that corruption undermines public’s trust in public institutions essential for good governance

and orderly society. Associated with this theory is the fact that, corruption is about distrust

and disorder which strike at the entire fabric of social trust. When public officials are corrupt

with impunity (i.e. when broken windows are not reappeared), the populace loses trust and

confidence in Government, this leads to tendency for disobedience, increase in corrupt

practices in every facet of national life and declined patriotism. Therefore, war against

corruption is not just about fighting crime, but about maintaining law and order and instilling

trust in a community. With the spate of corruption in Nigeria, trust, an essential ingredient of

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social bond is fast eluding us as a nation. The Tell Magazine of November 8, 2010 reported

that 230 billion naira was looted from public treasury in that year across many States in

Nigeria, while various charges were pending in various courts against the looters; they were

busy preparing for 2011 election. Unfortunately, Section 137 (1) of the 1999 Constitution as

amended does not empower INEC to disqualify any candidate. According to the Magazine,

Ayodele Fayose was arraigned before a Federal High Court in Lagos State on 17th December

2006 on a 51- count charge for looting the state treasury to the tune of 1.2 billion naira, yet, he

sought second time through Labour party during the pendency of his case before the court.

Adamu Abdullahi, former Governor of Nasarawa State for 8 years was charged to the federal

High Court Lafia on the 3rd of March 2010 for looting 15 billion naira on a 149 – count

charge. Despite this heavy allegation, he campaigned rigorously for a PDP senatorial ticket in

2011. Raheed Ladoja, former Governor of Oyo State was on trial before a Federal High court

in Lagos in December 2008 on a 33-count charge of looting an alleged sum of 6 billion naira

during his tenure. In 2010, he signified his interest to return to the Government House in

2011. Similarly, Chimaroke Nnamani, former Governor of Enugu State was on trial in 2007

on a 105 – count charge of looting a sum of 5.3 billion naira from the allocation of some

selected rural Local Government Council in the state. By 2010, he became a Senator of the

Federal Republic. The above scenarios are clear indications that the Nigerian system does not

care for the repair of broken windows; hence more windows are being broken, contrary to the

broken windows theory of corruption.

This paper contends that plea bargaining is an anti-thesis of the broken windows

theory of corruption, as it undermines public’s trust in our judiciary as an institution which is

vital to good governance and orderly society. Over the years, corruption has become

loathsome to the Nigerian populace. The application of plea bargaining will not only cast

doubt on the ability of our judiciary to impartially handle white collar crimes, it also fall short

23
of achieving the traditional objective of law, which is the maintenance of public order and

justice.

The spate of corruption in Nigeria is inextricably linked to other developmental and

public concerns; all hands must therefore be on deck to salvage Nigeria from socio-economic

doldrums into which corruption has plunged her. It is expected that the bar and the bench

must play a prominent role in this crusade, because law is supposedly an instrument of

development. About the role of law in national development Baderin (2011) observed as

follows:

It is trite and rigidly so, that the question of

development is on the top agenda of all African

States today. It is also reasonably evident that law,

as both powerful normative system and an effective

tool of social order, has an important role to play in

the quest for socio-economic development, even

though that fact has not been consciously and

diligently pursued as it should in Africa.

As opposed to the use of law to aid social disorder and underdevelopment, which are the

result of persistent corruption pivoted on the concept of plea bargaining, law in Nigeria

should be used as an instrument of social order and development. Nigeria should take cue

from developed nations like China which allow their development to be driven by law. In a

recent article on ‘The Role of law in China’s Economic Development,’ cited in Baderin

(2011), Clarke and Whiting (2008) observed inter alia, that the economic reform and

transformation in China was marked by a conscious recognition from the beginning that law

had a new and important role to play in the process. In order to effectively fight corruption

24
which is a major obstacle to our economic development, law must be conceived as an

instrument of change that must be positively channelled at every stage.

Conclusion

Corruption is a phenomenon that affects many nations of the world, but it has eaten

deep into the socio-economic fabric of African States and has constituted a great setback to

their development. Corruption does not only deplete resources needed for development

purpose, it undermines justice and economic development, and destroys public trust in

government and national leadership. All these are true of Nigeria, and one of the

manifestations of the way corruption undermines justice is the application of plea bargaining

in corruption cases involving highly place individuals. The fact that plea bargaining has no

place in Nigerian law before ACJA 2015, and was hitherto practised, confirms this. While

developed nations of the world are using law to advance the cause of development, Nigeria,

through plea bargaining, should not be seen as using the instrumentality of law to protect

corruption, a major enemy of development. It is recommended here that a special court be set

up for the speedy trial of corruption cases, as a response to the claim that plea bargaining is

resorted to because of court and prison congestion. This is also important because the social

cost of corruption is even more than the financial cost. It destroys social order and public trust

which are essential ingredients for national unity and development. It is observed that the

broken windows theory of corruption if adopted, will not only tackle corruption effectively, it

will also boost public trust and create a bond of social order that discourages serious crimes.

Plea bargain certainly has its own advantages. However, it must be applied with great caution,

to avoid being portrayed as a mean of allowing highly placed offenders to escape justice. This

is important, bearing in mind the image of Nigeria and Nigerians before the international

community. It is recommended that offices of the EFCC should extend beyond the

25
headquarters in Abuja and the five states of the Federation where they are presently situated.

This will enable the commission to promptly and effectively attend to corruption cases at

every nook and cranny of the country in tandem with the requirement of the broken windows

theory of corruption.

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List of Cases

F.R.N v. Igbinedion (2014) All FWLR pt. 734, 101at 144

Onagoruwa v. IGP (1991) NWLR pt. 193. 622 at 649-650

Santobello v. New York (1971) 404 U.S 257, 260 92 S. Ct. 498

Newspapers and Magazines

‘‘EFCC Dilemma’’ Tell Magazine, No. 44, November 8th 2010. p.81 - 20

How deep is Nigeria's corruption? Tell Magazine, No. 44, November 8th 2010. p.61

‘‘Plea Bargain Dubious, Illegal- CJN’’. The Nigerian Tribune, 16 November 2011. p.4

‘‘Plea Bargain: CJN Slams EFCC’’. Vanguard Newspaper 6th March 2012. p. 1-5

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‘‘Plea Bargain has no legal backing’’ Vanguard Newspaper 7th August 2014. p. 9

29