Emefiele: Prosecute, don’t enter into plea bargaining

Statement issued the other day by the office of the Attorney-General of the Federation and Minister of Justice debunking speculation in the public sphere of a possible plea bargain arrangement between government and the former Governor of the Central Bank came at a good time. To some extent, it may have helped to remove some of the haze surrounding the prosecution of the embattled banker, who has been in security custody for several months now.....CONTINUE READING

The current inkling is that the government wants to put him on trial for allegations of misdeeds against him. The Federal Government needs to sustain that impression by pursuing the planned prosecution promptly and to its logical conclusion. Importantly, it is a huge relief that the government is not thinking of a plea bargain arrangement, an issue that does not command the respect of Nigerians, having regard to its abuse in the past. Upon all its potential good intention, plea bargain has been used in the country more to suppress the course of justice, and to indirectly encourage fraudulent activities especially by high-placed public servants.

Following speculations that the ordeal of Emefiele might end up with plea bargain, the Federal Government stated thus: “The attention of the Office of the Attorney General of the Federation and Minister of Justice has been drawn to reports alleging that the former Governor of the Central Bank of Nigeria, Godwin Emefiele, and the Federal Government of Nigeria have agreed to a non-prosecution plea bargain arrangement.

“The Office of the Attorney General of the Federation and Minister of Justice hereby states clearly that these reports are completely false. It should be noted that the legal team representing Godwin Emefiele had expressed its intention in court at the last hearing to initiate a plea bargain arrangement. However, no such arrangement has been reached with Mr. Godwin Emefiele or his representatives.”

Government should do more to erase negative public suspicion on Emefiele’s impending trial instead of giving an impression that it has developed cold feet in pursuing the same conclusion. Emefiele was initially arrested for alleged terrorism financing, though later arraigned for illegal possession of firearms charge, and is presently facing a fraudulent procurement accusation.

Emefiele, who was in the custody of the Department of State Services (DSS) since June 10, is currently facing a 20-count charge over an alleged conspiracy to carry out procurement fraud, money laundering, breach of the Public Procurement Act, and abuse of office. He is being charged alongside one Sa’adatu Ramalan-Yaro (an employee of CBN). Their arraignment which was initially scheduled for August 17 was stalled due to the absence of Ramalan-Yaro.

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The case was then adjourned to August 23. Less than an hour after he regained his freedom from the dungeon of the Department of State Services, the former CBN Governor got picked up by the Economic and Financial Crimes Commission (EFCC) on October 27.

The absence of the parties on the stated date, and the fact that the matter was not listed in the court’s cause list aroused speculation that the parties were negotiating an out-of-court settlement. Specifically, it was rumoured that Emefiele and the Federal Government, represented by Lateef Olasunkanmi Fagbemi, SAN, the Minister of Justice and Attorney-General of the Federation (AGF), had executed a plea bargain agreement, and were awaiting the signature of President Bola Ahmed Tinubu to complete the process.

The bargain was further speculated to be aimed at terminating Emefiele’s trial over the fresh charge, on the condition that he (Emefiele) would surrender N50 billion to the government and resign from his position as CBN Governor; a narrative debunked by the AGF. All the same, posers have arisen on why the parties were not present in court at the last sitting; and when is the next court date? Notably, the CBN confirmed the resignation of Emefiele while he is still in detention.

However, the act or omission of the government so far reinforces the thinking that the government had no serious intention to prosecute Emefiele. Firstly, the initial charge of terrorism and sundry offences (which Justice M.A Hassan described as “trumped up allegations”) appears to have died a natural death. Then the allegation of illegal possession of firearms was terminated by the government without adducing any reason.

The status of the procurement fraud accusation is not known as neither Emefiele nor his co-defendant has been formally arraigned over the same. It is ironic that the previous overzealous disposition of the DSS operatives has now been replaced with zero activism. So why is government foot-dragging if amicable settlement is not in the pipeline?

Plea bargaining (a negotiated agreement between a prosecutor and a 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) has proven to be a useful negotiation tool in jurisdictions with strong institutions. Although applicable to other crimes, plea bargaining was essentially introduced into Nigeria as a panacea to political corruption and money laundering. Whilst it is designed to ensure quick dispensation of justice, the current application of plea bargaining in Nigeria fails to satisfy these moral requirements of justice.

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As deducible from some decided cases, plea bargain arrangement has been reduced to a safety net for high-profile offenders and politically exposed persons (PEPs). In 2008, pursuant to a plea bargain, the 191-count charge of corruption, money laundering and embezzlement of 2.9 billion naira originally proffered against a former Governor of Edo State, Lucky Igbinedion, were reduced to one count of failure to declare his interest in a bank account in the declaration of assets form of the EFCC.

He walked free after forfeiting three houses, refunding 500 million naira, and paying a fine of 3.6 million in lieu of six months imprisonment. Perhaps, the worst case of abuse of the plea bargain process was the case of John Yakubu who was charged with embezzling and money laundering of N27.2 billion, property of the Police Pensions Fund but simply walked away with a fine of N750,000.

The question therefore is: What is the value of plea bargaining to Nigeria? In reality the government in Nigeria currently suffers from character deficiency. Not only has plea bargaining succeeded in weakening the administration of the criminal justice system, it has also robbed it of the deterrence effect that successful prosecutions of crimes have on society. Simply put, the practice of plea bargaining is defeating the anti-corruption fight.

In the Emefiele matter, the issue of plea bargaining should be completely taken off the table. Instead, the government should invest its resources and manpower in conducting a diligent and comprehensive investigation to unravel the actual wrongdoing committed by Emefiele (if any). Is the President already thinking in this direction given the appointment of Jim Obazee, Chief Executive Officer of the Financial Reporting Council of Nigeria, as a special investigator of CBN? However, the government should guide against clothing the matter with incurable procedural defects. Based on the precedent set by the Supreme Court in Dr. Bukola Saraki v. Federal Republic of Nigeria (2018) 16 NWLR (pt. 1646) 433-434, it is fundamental for Emefiele’s investigation and prosecution to be undertaken by the appropriate statutory authority.

The fact that the controversy over Emefiele’s prosecution has lingered for about a year without any precise direction on the part of the government is worrisome. Also, his continuous detention without a proper trial constitutes an infringement to his constitutional right to personal liberty. It is about time the government stops politicising the Emefiele matter and try him openly in court, if he has indeed committed any offence.