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PLEA BARGAIN AND GUIDELINES FOR PLEA BARGAINING

Conference Paper · February 2017

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 PLEA BARGAIN AND GUIDELINES FOR PLEA
BARGAINING
Samuel E. Idhiarhi Esq.
(Paper delivered at a Capacity Building Workshop towards Implementing the Provisions of the Administration of
Criminal Justice Act 2015 for Investigators, Prosecutors and Magistrates held at the Federal Ministry of Justice,
Abuja between the 6th and 9th February, 2017)

INTRODUCTION TO THE CONCEPT OF PLEA BARGAIN

The term “plea-bargaining” is a derivative of two words namely

“plea” and “bargain”. Plea, which is a defendant’s formal response of
guilt, or not guilty or no contest to a criminal charge, has always been key
part of the administration of criminal justice. The novelty is in the
“bargaining of the plea”. The word “bargain” literally means the act of
negotiating a settlement and, in law, has been defined to mean ‘an
agreement of two or more persons to exchange promise or to exchange a
promise for a performance’.1

A composite definition of ‘plea bargain’, therefore, is that it is a

negotiated agreement between a prosecutor and a criminal defendant who
agrees to plead guilty to lesser offence or to one or more multiple charges
in exchange for some concession by the prosecutor, usually a more lenient
sentence or a dismissal of the other charges.2

There are two equations involved in approaching a plea negotiation.

For the defendant, he is likely to accept a plea offer only if the utility (or
value) of the known consequences of such an acceptance outweighs the risk
(or cost) associated with going to trial. One of the variables is the
defendant’s wealth and ability to retain counsel; while it may increase
cost, it also increases the likelihood of a favourable outcome. Another
1
Ted C. Eze and Eze G. Amaka, ‘A Critical Appraisal of the Concept of Plea Bargaining in Criminal Justice Delivery in
Nigeria’ (2015) 3(4) Global Journal of Politics and Law Research 31 <http://www.eajournals.org/wp-content/uploads/A-
Critical-Appraisal-of-the-Concept-of-Plea-Bargaining-In-Criminal-Justice-Delivery-in-Nigeria2.pdf> accessed
September 17, 2015
2 th
Black’s Law Dictionary (10 edn., 2014) 1338

1
variable is the minimum sentence that the prosecutor is willing to offer
compared with the monetary losses, such as lost income, lost work
experience, and lost job seniority while imprisoned, compounded by non-
monetary losses, such as time away from family and friends, association.3
Put differently, the equation reads thus: ‘a plea bargain occurs if the value
of the plea, less the costs associated with transacting the plea bargain and
serving the offered sentence, is worth more to the defendant than what he
or she might gain at trial’.4 On the part of the prosecution, the
Implementation Guidelines for Plea Bargain made pursuant to s 270
ACJA provided in article 4 (f) that the prosecution shall balance the risks
posed by the crime, the interest of the public and ends of justice in
undertaking a plea bargain.

The underpinning expectation in a regime of plea bargaining is that

it must be based on freewill of the accused person and equality of the
parties and advanced protection of the rights of the accused must be
guaranteed. The agreement component concerns only the parties but the
plea part of the arrangement also involves the court. Thus, a discussion of
the procedure before the plea in court essentially concerns the factors the
parties may respectfully consider in their best interest. However, it will be
in the interest of the prosecution that, since every such agreement is
subject to the court’s approval, every damnable gap should be covered.

A plea agreement may take one of the following forms:

a. Sentence bargaining whereby the prosecutor agrees to recommend a

lighter sentence for specific charges if the defendant pleads guilty or
no contest to them.
3
H. Mitchell Caldwell, ‘Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System’ (2011) 61(1) Cath. U.
L. Rev. 63 at 69 http://scholarship.law.edu/cgi/viewcontent.cgi?article=1003&context=lawreview accessed January 28,
2017
4
ibid at 70

2
 b. Charge bargaining whereby prosecutors agree to drop some charges or
reduce a charge to a less serious offence in exchange for a plea by
the defendant. Subsumed in this is Counts bargaining whereby counts
charged may be reduced in number.
c. Fact bargaining which involves promises concerning the facts that the
prosecution may bring to the attention of the trial judge.
d. A ‘no contest plea’ (nolo contendere), in place of a guilty plea. It is a
plea in which the defendant chose not to contest the charges against
him but should the victim sue the defendant later in a civil court,
the ‘no contest plea’ cannot be put in evidence against the
defendant as an admission of guilt in proof of the civil claim.

Section 494(1) of the ACJA has defined ‘Plea bargain’ to mean the
process in criminal proceedings whereby the defendant and the
prosecution work out a mutually acceptable disposition of the case,
including the plea of the defendant to a lesser offence than that charged
in the complaint or information and in conformity with other conditions
imposed by the prosecution, in return for a lighter sentence than that for
the higher charge subject to the Court’s approval. The above description
appears to contemplate only a sentence and charge bargaining under the
ACJA. It is our submission that reliance can be placed on s 492(3) of the
Act which provides that where there are no express provisions, the Court
may apply any provision that will meet the justice of the case.

CORE PRINCIPLES: PLEA BARGAIN AS A CONTRACT

The core principles of the concept of bargaining a plea revolve

around the idea that it is contractual. Hence, all the requisites of a legal
contract at common law are involved, namely offer, acceptance,
consideration and intention to create legal relationship and the parties

3
and their capacity. In a similar vein vitiating elements of contracts apply
to a plea bargain more or less. Thus, while courts are not involved at the
agreement stage, to avoid the pitfalls of possible rejection or invalidation,
parties must pay attention in the making of the contract; for instance, in
settling the terms of the agreement, the prosecution must reckon that
separate fines imposed on different counts at the same trial are to be
cumulative and the aggregate must be within the Court’s jurisdiction.5
Similarly, it must be borne in mind that where mandatory sentence or a
minimum sentence is prescribed by law, in settling plea bargain, those
requirements must be put into account.6 It is helpful the following points
must be further emphasized:

1. The consideration may include, on the part of State, the Immunity

granted the defendant from further prosecution for other charges or
conduct or a promise by the government not to use the information
provided against the defendant, while, on the part of the defendant,
it may include investigative cooperation with the government.
2. Courts are guided in interpreting plea agreements by principles of
contract law: United States v. Clark.7
3. Unlike civil contracts, however, consideration need not be
sufficient.8
4. Parties alone are bound by the agreement under the doctrine of
privity. The implication of this is that, in federal type constitutions,
plea agreement generally does not bind other jurisdictions because
one sovereign cannot bind the other though in the USA it was held

5
Fashusi v. Police (1953) 2 NLR 126. We must also advert our mind to the provisions of s 418(2) ACJA whereby ‘where
two or more sentences passed by a Magistrate Court are ordered to run consecutively, the aggregate term of
imprisonment shall not exceed 4 years of the limit of jurisdiction of the adjudicating Magistrate’.
6
Amoshima v The State (2011) 6 - 7 SC (Pt. 111) 1 and Kayode v State (2008) 1 NWLR (Pt. 1068) 281CA
7
55 F.3d 9, 12 (1st Cir. 1995)
8
Eze, loc. cit.

4
 in Murphy v. Waterfront Comm’n,9 by dicta, that the federal
government could, under the Supremacy Clause, can grant
immunity from state prosecution even without the consent of the
state. However, if the defendant was misled as to who the agreement
binds, the agreement may be vitiated. Thus, it was held in Montoya
v. Johnson,10 that, if, in the course of state proceedings, the defendant
was misled into believing that his state plea would bind the federal
court, the defendant’s plea was entered involuntarily. Similarly, plea
agreements generally do not bind governmental bodies in the same
jurisdiction if they are not parties to the agreement. Two examples
from the US illustrate this. In United States v. Flemmi,11 it was noted
that if the rules were otherwise, a minor government functionary
would have the power to prevent prosecution of a defendant.
Similarly, in United States v. Igbonwa,12 it was held that a prosecutor
cannot bind the Immigration and Naturalisation Service by making
promises regarding deportation without explicit authority of the
Service. This situations can be overcome by either making such
other jurisdiction or agency a party to the agreement or expressly
stating that such agreement is not intended (or is intended, as the
case may be) to bind other agencies of government not parties to it.
The Implementation Guidelines had specifically provided for such
clauses under the title ‘approval and signatures’ and ‘exclusion of
other terms’.13 In this wise, consistent with the principles of
construction of contracts, where there are ambiguities for failure to
specify who the agreement binds, if it subsequently becomes an issue
whether it binds other agencies of government, it may be construed
9
378 U.S. 52, 71 (1964)
10
226 F.3d 399, 406 (5th Cir. 2000)
11
225 F.3d 78, 87 (1st Cir. 2000)
12
120 F.3d 437, 443 (3d Cir. 1997)
13
Article 10 (r) and (s)

5
 in favour of the defendant on the principle that when government
could have taken steps to avoid imprecision, ambiguities would be
construed against the government: United States v. Fitch,14 and United
States v. Clark.15 The case of Romrig Nigeria Limited v. Federal Republic
of Nigeria16 also illustrates that only parties to a plea bargain can
subsequently rely on it to plead autre fois convict. In the case the
appellant was 6th defendant in a criminal charge which was
subsequently amended, removing the appellant and four other
defendants, leaving only the 1st and 5th defendants. It was held that
the plea bargain agreement on the amended charge can be relied on
only by the two defendants on the amended charge.
5. Unless the prosecutor in the plea agreement specifically agree not to
subsequently prosecute for other offences factually sustainable by
the same evidence but requiring different elements, the plea of
double jeopardy do not avail the defendant in such subsequent trial.
This was the decision of the Court of Appeal in in FRN v. Lucky
Nosakhare Igbinedion & Ors.17
6. Based on the contractual analysis, a breach may attract usual
consequences known in common-law. The party claiming breach
must prove the breach by a preponderance of the evidence. If the
defendant breaches a plea agreement, the government may choose
to re-prosecute the defendant and bring more serious charges. If a
guilty plea to a lesser charge is vacated, withdrawn, or overturned on
appeal, the government may reinstate charges dismissed as part of

14
282 F.3d 364, 368 (6th Cir. 2002)
15
218 F.3d 1092, 1095 (9th Cir. 2000)
16
(2014) LPELR-22759(CA). Sister cases to the above in which the issues are the same, having arisen from the same case,
include Gava Corporation Limited v. FRN (2014) LPELR-22749(CA), ROMRIG Nigeria Ltd v. FRN (2014) LPELR-
22759(CA); PML (Nigeria) Limited v. FRN (2014) LPELR-22767(CA) and PML Securities Company Limited v. FRN (2014)
LPELR-22768(CA).
17
(2014) LPELR-22760(CA)

6
 the plea agreement. It was thus held in United States v. Swint,18 that
the defendant has the burden of proving by a preponderance of the
evidence that the government breached the plea agreement while in
United States v. Moulder,19 it was held that, under frustration of
purpose doctrine, the government’s plea obligations are
dischargeable upon breach but they may reinstate charges.
7. Where the state defaults on its promises in a plea bargain, the
reviewing court has discretion to either order specific performance
of the plea bargain or to provide the opportunity for the defendant
to withdraw his guilty plea. Any re-sentencing at the trial level
should be before a different judge.20
8. The process can be initiated by either the prosecution or the
defendant. Where initiated by the prosecution, it may be orally or in
writing but the offer shall be accompanied with a form containing
the rights, obligations and consequences of the defendant accepting
or rejecting the offer. On the part of the defendant, such offer shall
be accepted by deposition in an affidavit stating record of previous
convictions and an undertaking ‘to be a good and productive citizen
henceforth and adhere to the terms of the plea bargain when agreed
upon’.21 The offer may also ensue from the defendant either in
person or through his representative in writing or orally but shall be
accompanied by an affidavit of disclosure deposed to by the
defendant stating record of previous convictions and an
undertaking to be a good and productive citizen thenceforth and to
adhere to the terms of the plea bargain when agreed upon.22

18
223 F.3d 249, 253 (3d Cir. 2000)
19
141 F.3d 568, 572 (5th Cir. 1998)
20
Proctor v. State 809 S.W.2d 32 (Mo. Ct. App. 1991)
21
Article 5
22
Article 7

7
SOURCES OF LAWS ON PLEA BARGAIN IN NIGERIA

Plea bargain is relatively new in this jurisdiction. Some of the

current legal provisions that may be resorted to to engage in plea
bargaining are as follows:

1. The Administration of Criminal Justice Act, s 270

2. The Administration of Criminal Justice Law of Lagos State, s 72
3. The Economic and Financial Crimes Commission Act, s 14(2)
4. The Administration of Criminal Justice Law of 2010 (Anambra
State), s 167.
5. The Criminal Procedure Code Act, s 339.

The guidepost for our subsequent discussion will be the ACJA

provisions, which largely is the same as the Lagos and Anambra States
laws. A number of other states have also since passed their versions of the
ACJA. However, it is necessary to comment briefly on the provisions of
the EFCC Act and the CPC Act. Evidently, copious references shall also
be made to the Implementation Guidelines for Plea Bargaining made
pursuant to s270 of the Administration of Criminal Justice Act, 2015.

The provision of s 14(2) of the EFCC Act is to the effect that,

subject to the powers of the Attorney-General in s 174 of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended), the
Commission may compound any offence punishable under the Act by
accepting such sums of money as it thinks fit, exceeding the maximum
amount to which that person would have been liable if he were to be
convicted of that offence.23

23
The ‘sum of money’ consideration must exceed the amount of possible fine imposable if the defendant were
convicted.

8
 While compounding of an offence is not defined in the EFCC Act,
it was defined by the Court of Appeal in FRN v. Igbinedion & Ors.24 as ‘to
settle a matter (especially a debt) by a money payment in lieu of other
liability or to agree for a consideration not to prosecute a crime’. What to
be noted is that, under the EFCC Act, in every plea bargain there must be
money flowing from the defendant as part of the agreement, as no other
kind of consideration is contemplated from the defendant. On the part of
the Commission, their agreement would be ‘not to prosecute’. It also
appears from the above provision that a court need not give its seal to the
validity of such compounding for it to be effective.

Given that, the money recovered under s 14(3) is to be paid into the
Consolidated Revenue Fund of the Federation, it is presumable it would
be unwise to resort to these provisions where the offence committed by
the defendant was against an entity other than the federal government.25
However, the Commission may, under the ACJA, enter into plea bargains
with defendants for considerations otherwise than the payment of money
or not prosecuting.

The provisions of s 339 CPC is largely similar in effect as the EFCC

Act as ‘compounding’ an offence was not defined. However, the
consideration flowing from a defendant need not be monetary.
Additionally, the CPC has listed in its Appendix C the offences that may
be compounded and at whose instance they may be compounded. While
in some instances the court’s consent is required, in others it is not
required. Generally, the offences may be compounded before the
defendant is convicted or committed for trial before the High Court;
thereafter it shall be with the consent of the Attorney-General if the
24
(2014) LPELR-22760(CA) adopting the definition in the Black’s Law Dictionary.
25
In Chidolue v. EFCC (2012) 5 NWLR (Pt. 1292) 160 it was held that ‘money belonging to Bayelsa State Government
cannot be paid into the Consolidated Revenue Fund of the Federation’.

9
defendant was already convicted or with the consent of the committing
Magistrate or the Judge of the Court the defendant was committed to
trial.26

THE PARTIES TO THE AGREEMENT

Like every contract, there are parties to a plea bargain agreement. To

start, there must indeed be an agreement, containing promises, not
merely statements made by the defendant as part of the process of
interrogation by the prosecution agency.27 As earlier hinted, while the
agreement is subject to the court’s approval, the court is not a party to the
agreement itself. There are basically two parties, namely the prosecution
and the defendant. However, the prosecution is generally under the
Attorney-General and so we will touch on his role in the bargaining.
Similarly, the defendant may be represented by counsel or in fact by some
other persons. So we will also look at what role may be played by such
counsel. Finally, even though the victim is not technically a party to the
agreement but may be beneficiary of it, we will also touch the extent of
the involvement of the victim.

THE PROSECUTION AND THE ROLE OF THE ATTORNEY-

GENERAL
A prosecutor is legal officer who represents the government in
a criminal proceeding. The attorney-General is the chief lawyer for
the government. The conception of prosecutor must extend to cover
a ‘private prosecutor’ for purposes of entering into a plea bargain.
Private prosecution is a criminal prosecution initiated by a privately

26
There is some confusion as to whether the CPC has been repealed. Our submission is that it has not been repealed
and can apply concurrently with the ACJA. See Samuel E. Idhiarhi, ‘A Synoptic Appraisal of the Practice and
Procedure for Plea Bargaining Under the Administration of Criminal Justice Act 2015’, (2016) 6(1) AJLC 12-24
<http://www.sachajournals.com/documents/image/ajlc2016v01sam002.pdf> accessed April 12, 2016
27
Chidolue v. EFCC (supra).

10
 employed attorney or a layperson rather than by the public
prosecution agency.28
The ethical requirements from a prosecutor in plea bargain are
no different from what is expected of him in his general duty as a
lawyer and prosecutor i.e. to act as an officer of the court and that
he should not pursue securing conviction at all costs, the most
important interest being ‘that only factually guilty defendants plead
guilty’.29 The Implementation Guidelines has set out some of the
expected ethical standards in articles 8 and 9(a). In précis, apart
from the usual considerations that must inform the decision
whether or not to plea bargain, below are some specific obligations
imposed on the prosecutor:
i. Charges are not to be bargained away or dropped, unless
the prosecutor has a good faith doubt as to the
government’s ability readily to prove a charge for legal or
evidentiary reasons;
ii. Make timely disclosure to the defence of all evidence or
information known to the him that tends to negate the
guilt of the accused or mitigates the offence;30
iii. Similarly, in connection with possible sentence, disclose
to the defence and to the court all unprivileged
mitigating information known to him;
iv. Bring only charges supported by ‘probable cause’ i.e. that
which is such that there are “reasonable ground to
suspect that a person has committed a crime” and the
28
The ACJA did not define a private prosecutor but rather described who is not a private prosecutor, namely that it
‘does not include a person prosecuting on behalf of the State or a public officer prosecuting in his official capacity’.
29
Erica Hashimoto, ‘Toward Ethical Plea Bargaining’ (2008) 30(3) Cardozo Law Review 950
<http://cardozolawreview.com/Joomla1.5/content/30-3/HASHIMOTO.30-3.pdf> accessed December 26, 2017
30
The case of Brady v. Maryland, 373 U.S. 83 (1963) is the locus classicus for the disclosure of exculpatory evidence.
Brady and its progeny require that the prosecution timely disclose exculpatory and impeachment evidence, relevant
to both guilt and punishment, whether or not it has been requested for by the defence.

11
 evidence reasonably support the number and degree of
the charges filed.
v. Avoid overcharging as a means to coerce submission to a
plea bargain.
vi. Do not simulate evidence where none exist.
vii. Do not knowingly take advantage of an unrepresented
defendant; if expedient, the prosecutor may refer the
defendant for advice to bodies like the Legal Aid
Council before concluding the terms of the agreement.
viii. The prosecutor shall ensure effect is given to the
judgment upon the plea of the defendant. Thus, he shall
take reasonable steps to ensure that any money, asset or
property agreed to be forfeited or returned by the
offender under a plea bargain are transferred to or vested
in the victim, his representative or other person lawfully
entitled to it.31
ix. Involve and consult the person who investigated the
case.32
x. He should carry every interested party along and act
transparently towards the victim(s) of the crime,
complainants (where different from the victim), the
witnesses and even the general public.33

Under s 270 (7)(d) of the ACJA, a copy of every plea bargain

agreement should be forwarded to the Attorney-General of the
Federation. However, the section did not appear to require that the
approval of the Attorney-General must be obtained before such an

31
s 270(12)
32
s 270(5)(a)
33
Article 4(f)

12
agreement may become effectual. Similarly, the subsection is also not clear
as to whether the referral to the Attorney-General shall be before or after
the court entertains the agreement. Since there is a presumption of
regularity, we think that the prosecution is to be taken as having sent a
copy and obtained the consent of the Attorney-General in all plea
bargains until the contrary is proved.

THE DEFENDANT AND THE ROLE OF DEFENCE COUNSEL

The other party in the plea bargain is the defendant. Just as
sincerity and complete openness is required of the prosecution, so
also is utmost good faith expected from the defendant. Thus, if, for
instance, the defendant is required to disclose assets or information,
it will be a vitiation of the agreement not to fully disclose.34 One of
the consequences of entering into a plea bargain is that the
defendant thereby waives some constitutional rights such as the
right to confront accusers, the right against self-incrimination, and
the right to appeal the sentence resulting from the plea.35
Where counsel acts for the defendant, he is bound by the
provisions of Rule 15(3)(d) of the Rules of Professional Conduct for
Legal Practitioners, 2007, which makes it mandatory for lawyers to
inform their clients about the options of ADR before or during
litigation.36 Thus, if the case is such that, in the opinion of the
counsel, the interests of the defendant will be better served by
entering into plea bargain, he must advise him appropriately.
Defence counsel must put in his best professional efforts in
reaching an agreement in a plea bargain. Where such representation
34
Article 9(c) provides, among others, that defence shall not submit to or make plea bargain offer for the sole purpose
of ascertaining the quantum of evidence against them.
35
Article 10(d). The US Supreme Court has, repeatedly, in cases like Town of Newton v. Rumery, 480 U.S. 386, 393, 107 S.
Ct. 1187, 94 L. Ed. 2d 405 (1987) recognized that a defendant may waive constitutional rights as part of a plea
agreement.
36
See also article 9(c)

13
 was established to be deficient and not in the best interest of the
defendant, it might be cause to find that there was no fair hearing.37
As an incident of contract, the defendant must have the
capacity, both in age and mentally, to enter into the plea bargain
before he can be bound.38 In other words, the plea must be entered
by the defendant knowingly and voluntarily, with the advice of
competent counsel. Thus, in one case, it was held that there was
harmful error when a secondary competency hearing was not held
when the defendant was previously hospitalized for a mental
defect.39 However, the question of competency may generally be
settled if, before a court enter the plea of guilt, it affirmatively held a
hearing on competency; colloquy was held inadequate when judge
had reason to suspect that defendant might not be acting with
adequate capacity.40
Where defendant is not represented by counsel or, in the case
of defendant minors who lack full capacity, it might be helpful to
ensure that, before accepting the plea, the court must obtain a
written ‘waiver of counsel’ from the defendant, besides reflecting in
the court’s record that the defendant understands his right to an
attorney and is waiving that right. For a minor, pursuant to s 216 of
the Child Rights Act a parent or guardian or someone in loco
parentis should be able to make or accept the offer of a plea bargain
on behalf of the defendant.
THE ROLE OF THE VICTIM AND HIS RIGHTS

37
In Padilla v. Kentucky, 559 U.S. 356 (2010), the United States Supreme Court held that defendant, Padilla, was entitled
to post-conviction relief because he entered a plea based on his counsel’s erroneous advice regarding the immigration
consequences of conviction. The Court found that Mr. Padilla’s counsel’s representation was constitutionally deficient
and that he had been denied effective assistance of counsel.
38
The age of majority in Nigeria is 18 years but under the Child’s Right Act, it might be sufficient if a guardian acts on
behalf of a child. In France, only adults are allowed to plea bargain.
39
United States v. Giron-Reyes, 234 F.3d 78, 80 (1st Cir. 2000)
40
United States v. Timbana, 222 F.3d 688, 717 (9th Cir. 2000)

14
 Who may be considered a victim is not defined in the ACJA.
The Black’s Law Dictionary simply defined a victim as ‘a person
harmed by a crime, tort, or other wrong’.41 Expansively construed,
therefore, victim can mean direct victims, immediate family
members, and tertiary victims such as law enforcement agents who
suffered collateral injuries arising from the criminal conduct of the
defendant. It will cover both juristic and natural persons. While
conceptually the two parties to a crime are the State and the
defendant, the victim’s interest is accommodated as follows:
i. The UN Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, 1985, specifically
imposed a duty upon prosecutors to provide specific
information to victims about various aspects of the criminal
trial process – including plea bargains and sentencing.
ii. Under s 270(2) ACJA, 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.
iii. Under s 270(5) ACJA, the prosecution may enter into an
agreement in the circumstances contemplated under sub-s
(3) only after consultation with the victim or his
representative.
iv. The prosecution shall afford the victim or his representative
the opportunity to make representations to the prosecutor
regarding the content of the agreement and the inclusion in
the agreement of a compensation or restitution order.42

41
Black's Law Dictionary (10th edn., 2014) 832
42
s 270(6) ACJA

15
 The use of the phrases ‘the consent’ in sub-s (2), ‘consultation with’
in sub-s (5) and ‘shall afford’ in sub-s (6) gives the impression that there
are different circumstances for the involvement of the victim and the
force of that involvement. We submit that the said provisions should be
read communally and liberally interpreted; having regard to the nature of
the offence, in some cases the victim’s consent shall be obtained but in
others, the victim might merely be consulted. In any event, the
Implementation Guidelines requires that the victim or complainant shall
not withhold consent unreasonably where such consent is required to
initiate the plea bargain process.43

STAGES OF A PLEA BARGAIN

There are different stages in which plea may be bargained.44 The

first stage is before the defendant had taken his plea to the charge45 while
the second stage is during or after the presentation of the evidence of the
prosecution, but before the presentation of the evidence of the defence.46
There seems to be a gap as to whether any plea bargain could take place
after the defendant had pled to the charge but before evidence has been
called by the prosecution; presumably, the situation may be taken as same
as if plea has not been taken. Where the proceedings are commenced by
way of a First Information Report, wherein there would be no charge to
plea to until one is drafted by the court, by virtue of s 112(8) ACJA, plea
bargain may be entered into, provided the allegations against the
defendant establish a known offence and was admitted by the defendant.

43
Article 9 (b)
44
Article 11 of the Implementation Guidelines generally reproduced s 270 (2) and (4) ACJA.
45
s 270(4) ACJA
46
s 270(2) ACJA

16
 From the above provisions, it will seem that the opportunity to plea
bargain would be lost after the defence has opened its case.47 However,
the prosecution may still consider a plea bargain even after the defence
has opened its case, relying on s 355 of the ACJA.48

To guard against negotiation ad nauseam, the Guidelines had

specified guidelines for action. Thus, when offer of plea bargain is made
by the Prosecution, the Defence has twenty-one (21) days to respond while
the prosecution has forty-two (42) days to respond to an offer by the
defence. While the prosecution can make only one more offer after its
first offer had lapsed or was rejected, there is no limit to the times the
defence may make an offer provided the prosecution has not closed its
case.49

At whatever stage, the requirement of the law is that when the plea
agreement is presented to the court, the defendant shall be present in
court throughout.50 We submit that, if, by reason of the misconduct of
the defendant which renders his continuing presence impracticable or
undesirable, and so he cannot be present in court when the plea
agreement is presented to the court, it may be reason for the court to
reject the plea agreement. An exception to the compulsory presence of the
defendant is where the matter is before a Magistrate court which had
issued summons; here the plea agreement may be presented to the court
even with the absence of the defendant where the offence in respect of
which the summons was issued is punishable by a fine of not more than
N10,000.00 or a term of imprisonment not exceeding six months or both
provided the defendant applied for his presence to be dispensed with, and
47
Article 11 (d)
48
Since the order would be acquittal, the court cannot impose any penalty as part of the acquittal presumably except
for compensation under ss 314 and 319 ACJA
49
Article 12
50
s 266 ACJA

17
he has in writing pleaded guilty to the charge (which the agreement
represents) or he so pleads guilty through his lawyer.51

CONSIDERATIONS FOR ENTERING INTO A PLEA BARGAIN

To avoid abuse, the ACJA had specifically set out some factors that
may be taken into account in deciding whether or not to go into plea
bargain. These are more like a checklist for prosecutors and may be
divided into two stages; the first before the defendant has taken his plea
to the charge while the second stage is during or after the presentation of
the evidence of the prosecution, but before the presentation of the
evidence of the defence.52 It needs to be stressed that the prosecution
must always take into account whether the objective in any particular case
is to exact retribution or restoration or forfeiture.53

Before the defendant has taken his plea, the overriding motivation
for agreeing to a plea bargain should be public interests, public policy, the
need to prevent abuse of legal process, severity of the penalty, personal
characteristic of the defendant, and the written consent of the defendant.
Public interest would be indicated by the following:54

1. The defendant’s willingness to cooperate in the investigation or

prosecution of others;
2. The defendant’s history with respect to criminal activity;
3. The defendant’s remorse or contrition and his/her willingness to
assume responsibility for his/her conduct;
4. The desirability of prompt and certain disposition of the case;
5. The likelihood of obtaining a conviction at trial;
6. The probable effect on witnesses;
51
s 135(1) ACJA
52
Idhiarhi, op. cit.
53
ibid.
54
The provisos to s 270(5) ACJA

18
 7. The probable sentence or other consequences if the defendant is
convicted;
8. The expense of trial and appeal;
9. The need to avoid delay in the disposition of other pending
cases;
10. The defendant’s willingness to make restitution or pay
compensation to the victim where appropriate.
11. The nature and circumstances of the offence or offences
charged.

On the other hand, the factors to be considered, after the

presentation of the evidence of the prosecution, but before the
presentation of the evidence of the defence, may include:55

1. The insufficiency of the evidence of the prosecution to prove the

offence charged beyond reasonable doubt;
2. The agreement of the defendant to return the proceeds of the crime
or make restitution to the victim or his representative; or
3. In a crime of conspiracy, the full cooperation of the defendant with
the investigation and prosecution of the crime by providing relevant
information for the successful prosecution of other offenders.

The above factors need not, in practice, be compartmentalized as

mutually exclusive but could rather be both considered as factors in every
decision to plea bargain. The Implementation Guidelines For Plea
Bargain are, in the main, the same as the factors above but also contain
additional factors for consideration as follows:

1. The nature and severity or gravity of the offence(s) charged and the
degree of harm or loss suffered by the victim;

55
s 270 (2)(a), (b) and (c)

19
 2. The defendant’s willingness and readiness to return proceeds and
benefits of crime;
3. The defendant’s willingness and readiness to return proceeds and
benefits of crime;
4. Public morality and public safety;
5. Age of the victim or the offender;
6. Vulnerable status of the victim or the offender;
7. The effect upon the victim’s right to restitution; and
8. Such other factors as the circumstances of the particular case may
require.56

THE FORM AND CONTENTS OF THE AGREEMENT

The ACJA appears to be strict as to the form contained in s 270(7).

To be valid, the agreement must:

1. Be in writing.
2. Shall contain an affirmation that, before the conclusion of the
agreement, the defendant has been informed:
i. Of his right to remain silent;
ii. Of the consequences of not remaining silent; and
iii. That he is not obliged to make any confession or admission
that could be used in evidence against him.
3. Fully state the terms of the agreement and any admission made;
4. Be signed by the prosecutor, the defendant, the legal practitioner
and the interpreter, if any.

The subsection was silent as to whose responsibility it is to do the

writing, but presumably, any one could write it provided it is with the

56
Other factors the prosecution may also consider include the lapse of time between when the crime was committed
and when the prosecution was being initiated, a fact that may have diluted the potency of relevant evidence, and
where the victim was not identified.

20
consent of both the prosecution and the defence and it reflects their
agreement. In principle, it should have been enough that the facts of the
agreement are taken down by the court after being stated orally to the it
in the course of proceedings, especially at the Magistrate court level.

The ‘terms of the agreement’, ostensibly, refers to the trade-offs or

consideration given by each party that led to the agreement. Both the
ACJA and the Implementation Guidelines contains some of the
contemplated terms. Under the ACJA, the mandatory terms are as
contained in sub-s (4)(a) and (b):

1. The sentence recommended within the appropriate range of

punishment stipulated for the offence;
2. The plea of guilty by the defendant to the offence(s) charged or a
lesser offence of which he may be convicted on the charge; and
3. An appropriate sentence to be imposed by the court where the
defendant is convicted of the offence to which he intends to plead
guilty.

The key phrases here are the ‘sentence recommended’, ‘within the
appropriate range of punishment stipulated’, and ‘plea of guilty by the
defendant for the offence’. The use of the word recommended would imply
that the Judge is not under obligation to give effect to the sentence as
agreed by the prosecutor and defendant, a point of view supported by sub-
s (11) and indeed the definition of plea bargain which made the plea
agreement subject to court’s approval.

However, the phrase within the appropriate range of punishment

stipulated is not so clear. In a sense, it tends to suggest the existence of a
scale of sentences, very much like sentencing guidelines, within which the
recommended sentence will fall. In another sense it could mean between

21
a minimum and maximum sentence, already specified in a statute, within
which the recommended sentence will fall. The problem is that many
offences simply have a term of sentence, not a minimum and maximum
sentence. Presumably, the prosecution would just have to agree to a term
of imprisonment not too disproportionately far off from what is stated in
the statute book. To avoid confusion, the recommended sentence should be
the same as the appropriate sentence.

A list of much more expansive possible terms of a plea bargain

agreement is contained in Article 10 of the Implementation Guidelines.
These straddled the plea, the elements of the offence, the penalties,
waivers/immunity, the sentence to be imposed, limitation on use of
information (at sentencing or subsequent), detailed financial statement,
asset forfeiture and financial accountability, removal, deportation and
exclusion from Nigeria, exclusion or inclusion of civil claims, and the
parties to the plea bargain etc.

SCOPE OF OFFENCES COVERED UNDER SECTION 270 ACJA

The ACJA has simply defined an offence to mean ‘an offence

against an Act of the National Assembly’.57 The above definition is so
broad and, except to the extent that it reinforces the requirement that an
offence must be created by a written law, it obscured the fact that offences
can be compartmentalized into minor crimes, capital offences, breaches of
regulation, violent crimes, economic crimes etc., each attracting different
levels of abhorrence from the society.

No distinction between different offences was made for the

purposes of plea bargaining even though the ACJA had distinguished

57
s 494 (1)

22
between a felony, an indictable offence and a misdemeanour.58 This may
be compared with the Law in Anambra State which made a fine
distinction when it provided that plea bargaining shall not apply to
persons charged with capital offences or any offence involving the use of
violence or persons who had in the last ten years been convicted and
sentenced for any such similar offence or any offence involving grievous
violence or sexual assault.59

What can be affirmatively said here is that plea bargain under the
ACJA does not apply to capital offences. This conclusion is inescapable
given the provisions of s 274(3) ACJA that ‘where the defendant pleads
guilty to a capital offence, a plea of not guilty shall be recorded for him’.

PRESENTATION OF THE AGREEMENT AND THE ROLE OF THE

COURT IN THE PLEA BARGAINING

While the court is not party to plea bargain agreements, the court is
vested with power to approve same before it becomes operational.60 The
presiding judge or magistrate before whom the criminal proceedings are
pending shall not participate in the discussion leading up to the
agreement;61 the reason for this prohibition is that to allow judicial
participation ‘could be taken to be undue pressure on the accused, thus
depriving him of that complete freedom of choice which is essential’.62 In
the US case of United States v. Rodriguez,63 it was held that a judge
improperly participated in plea negotiations and thereby invalidated it.

58
ibid
59
See s 167(4).
60
See the definition of plea bargain in s 494 (1)
61
s 270 (8).
62
R. v Turner (1970) 2 All ER 281 at 283. See also Philip A. Thomas, ‘Plea Bargaining in England’, (1978) 69(2) J. Crim. L.
& Criminology 170 <http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6067&context=jclc>
accessed September 17, 2015
63
197 F.3d 156, 159 (5th Cir. 1999)

23
The area of involvement of the presiding Judge is only upon presentation
of the agreement for his approval and it may take the following forms:

1. Where a plea agreement is reached by the prosecution and the

defence, the prosecutor shall inform the court that the parties have
reached an agreement and the presiding judge or magistrate shall
then inquire from the defendant to confirm the terms of the
agreement.64
2. Under s 270(10), the Judge is required to ascertain, when presented
with the agreement, whether the defendant admitted the allegation
in the charge to which he has pleaded guilty and that he entered
into the agreement voluntarily and without undue influence.
Whether or not the particular circumstances amounted to
involuntariness or undue influence is for the court to determine.
Thus, in the case of United States v. Gwiazdzinski,65 it was held that
the defendant was not entitled to withdraw his bargained plea based
only on claim that he entered into it because his wife threatened to
not let him see their child if he did not plead guilty.
3. Ensure that the requirements of s 270(7) were complied with.
4. If the judge is, for any reason, of the opinion that the defendant
cannot be convicted of the offence in respect of which the
agreement was reached and to which the defendant has pleaded
guilty or that the agreement is in conflict with the defendant’s right
referred to in s 270(7) of the ACJA, he shall record a plea of not
guilty in respect of such charge and order that the trial proceed.66
5. If the judge is satisfied that the defendant is guilty of the offence to
which he has pleaded guilty, he shall convict the defendant on his

64
s 270(9)
65
141 F.3d 784, 788 (7th Cir. 1998)
66
s 270(10)(b)

24
 plea of guilt to that offence, and the court shall proceed to award
such compensation to the victim agreed in the terms of agreement.67
In a similar vein, the judge shall, where appropriate, further make
an order that any money, asset or property agreed to be forfeited
under the plea bargain shall be transferred to and vest in the victim
or his representative or any other person as may be appropriate or
reasonably feasible.68
6. Under s 270(11), upon conviction of the defendant on his plea of
guilt, the judge must consider the sentence as agreed upon and take
one of three courses:
i. Where the judge is satisfied that such sentence is an
appropriate sentence, he will impose the sentence as
agreed.
ii. Alternatively, where the judge is of the view that he would
have imposed a lesser sentence than the sentence agreed,
he may impose the lesser sentence.
iii. Or, further alternatively, if the judge is of the view that the
offence requires a heavier sentence than the sentence
agreed upon, the judge shall inform the defendant of such
heavier sentence he considers to be appropriate and the
procedure specified in section 270(15) ACJA shall then
apply.

Thus, where the judge has indicated that the offence requires a
sentence heavier than that agreed, the defendant may either abide by his
plea of guilt as agreed and submit to such heavier sentence or the
defendant may withdraw from the his plea agreement, in which case the
trial shall proceed de novo before another presiding judge where no
67
s 270(10)(a)
68
s 270(12)

25
reference shall be made to the aborted agreement or any admission earlier
made and the possibility of another plea bargain is foreclosed.69

We need only to add that there ought to be what is referred to as

‘reflection period’ both during the negotiation of the plea and when a
defendant has been informed that a heavier sentence than agreed will be
imposed. This period will allow the defendant to further reconsider the
proposals before reaching a decision. Presently, the Implementation
Guidelines provides such a period for the acceptance of a plea, but not for
deciding whether to submit to sentencing to a term greater than agreed in
the negotiations.70

To avoid the awkwardness71 that may arise where the defendant may
withdraw from the agreement because of the heavier sentence the court
proposed to impose, it was held to be a good practice to advice defendant
of the sentence prior to acceptance of plea and or his conviction by the
court.72

RIGHT OF APPEAL

The ACJA was categorical that the judgment of the court convicting
a defendant consequent on a plea bargain agreement shall be final and
not liable to appeal except where fraud is alleged.73 The concept of plea
bargain is akin to a court entering a consent judgment in a civil suit.
Thus, the provision in the ACJA can be contrasted with s 241(2)(c) of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
which provides that no right of appeal inheres without the leave of the
69
s 270(15) and (16)
70
Article 12
71
Technically, the court is functus officio on the question of liability after accepting the plea and convicting the
defendant.
72
See United States v. Fernandez, 877 F.2d 1138, 1144 (2d Cir. 1989) where it was noted that while not required, it may be
good practice for the court to assure itself that the defendant has been advised about the applicability of the
Guidelines.
73
sub-s (18)

26
 Federal High Court or a High Court or of the Court of Appeal, from a
decision of the Federal High Court or High Court made with the consent
of the parties or as to costs only. The point is also to be made that s
241(2)(c) of the Constitution did not directly apply to Magistrate Courts;
therefore, for Magistrate Courts, s 485 ACJA, particularly sub-s (9)(c) will
apply. What is obvious is that whenever an appeal is contemplated against
a plea agreement on account of fraud, it can only be with leave.

CONCLUSION

The practice and procedure of plea bargaining is still evolving and several
of the provisions of the law still needs to tested before the highest judicial
authorities in Nigeria before the law will become crystallized. We hope
our thoughts on the subject would inspire further discussion. Thank you.

27

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