Caution on cost of prosecution
By Abdulrahman A. Abdulrauf
Abuja
Some leading Senior Advocates of Nigeria have done a critique of the anti-corruption fight of the All Progressives Congress-led government of Muhammadu Buhari, and concluded that plea bargain with alleged looters of the nation’s treasury, remains the best way out of the present economic recession.
The immediate past Director-General, Nigeria Institute of Advanced Legal Studies, Professor Epiphany Azinge SAN, and the pioneer chairman, anti-corruption committee of the Nigeria Bar Association, Yusuf Olaolu Ali, SAN, canvassed the position while featuring on the Nigeria Television Authority Breakfast Show, Good Morning Nigeria, monitored in Abuja.
They spoke against the backdrop of the lack of convictions of alleged looters owing to poor investigation, and the cost of prosecution.
Making his position known, Professor Azinge said, where diligent prosecution of cases beyond reasonable doubt can’t be achieved, the option of plea bargain, as provided for in the Administration of Criminal Justice Act, should come handy, saying it will save a lot of cost.
“To a large extent, I do agree that there is need for thorough investigation. But we still need to do more, to the extent that once investigation is not properly carried out, what is your fallback option? The Administration of Criminal Justice Act seems to have given us a fallback option and that has clearly endorsed the plea bargain.
“Now, if you feel you haven’t done enough investigation and establish your case beyond reasonable doubt, plea bargain. The position is very clear in the law now. Get the much you can. For me, it’s as good as conviction and you end it at that point in time, you don’t need to go to court,” submitted the academic.”
“For you to plea bargain, means that you are obviously admitting, and the man goes away with that tar of stigma. That is more than enough. We don’t really need to go all the hog knowing full well that if you go all the hog, you cannot establish proof beyond reasonable doubt.
“So, we need to exercise a lot of restraint in this matter knowing full well that one day, people will ask the question; you have prosecuted X-number of cases, how much did it cost us? At this point in time when we are talking of recession, if we stop some prosecutions, do you know how much will still be kept in the coffers? How much are the lawyers paid amongst others? These are things we are taking away from the public treasury.”
“If you get the money from the persons, the person may not be sentenced to imprisonment, but you get the proceeds of the crime among other things and then the person will work free. But the public should be made to know that XYZ plea bargained and there are other corollaries or collateral damages, ‘oh, if you have done this, it means you have done this and may not be fit to hold public office for another ten years, you may not contest election, you may not do this’. Obviously that stigma lives with you and your generations as the case may be,” added Azinge.
On cost of prosecution, he said, “one thing that seems to be missing out as far as we are concerned in this country, which doesn’t happen in other countries, is the issue of identifying the cost of prosecution. The cost of prosecution is something we should not toy with, because it is a lot of money.
“South Africa will tell you that to prosecute Oscar Pistorius cost them 8 of millions of dollars as the case may be. Ask yourself, how much it costs us to prosecute and fail as the case may be. If we quantify that, then we will come to this conclusion that we don’t need to prosecute all matters so that we don’t waste that amount of money for nothing.
“So, if we know that we have challenges to an extent, we change for the next option. Go and plea bargain and get the much you can for government, that is more than enough for the government. And once you are able to plea bargain, let the country know that you plea bargained because that indictment stigma is there already.
Canvassing similar position, Malam Ali, however, added that there should be rules to guide such option, stressing that “an eye for an eye will leave the word blind.”
He said: “The position espoused by Professor Azinge has always been my position. The only caveat before the Administration of Criminal Justice Act was made was that there should be rules to guide it.
“In all advanced criminal justice, there is opportunity for plea bargaining, and like he has rightly said, you don’t ask for your pound of flesh every time because an eye for an eye will leave the whole world blind. Somebody has taken N5million, and he said ‘look, gentlemen, I took this money, but I have spent N500, 000 out of it.’ You still can say look, return N4.2 million, keep N300, 000 for your other needs.
“What is the objective of the state prosecuting, especially those who had taken money from public tills? It is to recoup the money. If the man goes to spend 150 years in jail and the money is kept somewhere out of the reach of government, it is a loss to all of us. I agree with Professor Azinge that we should do much of plea bargaining, especially in this recession, and with the stupendous mouth –opening volume of money we are hearing.
“Let me tell you, and I have said it before, those who take so much will also have capacity to grandstand, legally, socially and politically. So, if that is the case, it is better, sit them down, we have traced so much to you, let’s plea bargain. What are you going to give back?
“Of course, you can’t leave the man pauperised. Even in the US, nobody does that. If you had taken $US200million, they don’t take the whole of the money. It’s never done that way. People won’t cooperate and these are people who have ability, individually and as a group, to stall the whole process. One thing with plea bargain is that you will be given a lighter sentence, rather than what you would have taken before. Instead of going for 15 years, you may go for two months. For me, it’s not the number of months or years that is important, but the facts of conviction and like he has rightly said, if you are convicted for an offence associated with fraud, you suffer constitutional disability for public office.”
“For me, it is very essential we get it right. Plea bargain is not a bad thing, it is the way we practice it. As long as it is transparent, as long as there are rules to guide it, as long as people will know that XYZ has done this, and most importantly, we should be able to know what happens to money recovered as a result of plea bargain.
“In this country, I can say without any fear of contradiction, nobody knows the cost, the time taken, the judges, the people from the ministry who are prosecuting, they take their vehicles to courts. There should be a cost for that. We must aggregate all these. Why chase a man who has stolen N5million with N20million, when in actual facts, you could ask him to part with N4.5million and he goes away,” explained the SAN.