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Opinion / Editorial

Controversy Over Plea-Bargaining, Soft Landing For Looters

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The Chairman, Presidential Anti-corruption Advisory Committee, recently hinted that the Federal Government could give a soft landing to looters returning public funds. GBENRO ADEOYE looks at the debates thrown up by this issue

For about three months now, the media have been awash with reports about a number of corruption cases involving looted public funds, the biggest of which is the $2.1bn arms deal scandal.

The funds allegedly meant for arms deal under the government of former President Goodluck Jonathan, were diverted to other uses. The Economic and Financial Crimes Commission has already brought charges bordering on fraud and money laundering against a former National Security Adviser, Col. Sambo Dasuki (retd.), who is at the centre of the controversy.

The EFCC, which has been spearheading the fight, has indicted some individuals including media moguls, and top serving and retired military officers for allegedly stealing from the nation.

Some of the suspects have been accused of diversion of funds meant for arms procurement to fund electoral campaigns.

And since news of the Dasukigate scandal broke, some angry members of the public have been crying for blood like spectators at the old Roman gladiatorial shows.

This public vibe must have been felt by the Federal Government, prompting it to state earlier that it would not consider an option of plea bargain for treasury looters and their cronies.

The Minister of Justice and Attorney-General of the Federation, Abubakar Malami, had in December 2015, said that the government would not “allow criminal cases to be compromised” and that his office would “not advocate plea bargain for anyone.”

He said a team of seasoned experts, including lawyers, had been assembled to prosecute persons implicated in the arms purchase scandal.

“It has never been the policy of the government to make compromises on terrorism and financial crimes. It will never be tolerated by the office of the AGF,” he had said.

“It is tragic for a nation to have a budget meant for arms procurement for the protection of lives and property of the citizens, and end up not having the arms but compromising the process of making adequate provisions for the protection of lives of its citizens.”

But less than two months after Malami’s declaration, the Federal Government appeared to have made a U-turn on its stance on the issue based on some actions taken by the EFCC.

For instance, at the time when the National Publicity Secretary of the Peoples Democratic Party, Chief Olisa Metuh, was still being held in detention by the EFCC for allegedly benefitting N400m from the arms deal fund, a chieftain of the All Progressives Congress, Jafaru Isa, with similar offences, was allowed to return home.

Questions regarding the situation were raised by the public and the EFCC Chairman, Ibrahim Magu, in his response, said Isa was released by the anti-graft agency because he returned N100m and signed an undertaking to return the remainder of the N70m he had received from the arms fund.

Metuh, on the other hand, who had allegedly admitted to have received N400m from the fund, had refused to return any part of it.

Confirming that the Federal Government may have changed its stance on the issue, the Chairman of the Presidential Anti-corruption Advisory Committee, Prof. Itse Sagay, in a recent statement, said some people had started returning looted funds and that there would likely be a ‘soft landing’ for them.

“A lot of money has been recovered and the result of that is that such people are likely to be given soft landing,” he had said.

Although, Magu had added that Isa would still be prosecuted in spite of his seeming cooperation with the agency, some analysts say letting him go after returning part of the money already showed that the government was amenable to granting plea bargain to suspected looters returning money.

One of such analysts, Mr. Liborous Oshoma, a lawyer, said he was not surprised by the Federal Government’s reversal of its stance on plea-bargain.

He said, “What we have seen already is that there is soft landing for some people; some people were invited by the EFCC and they left for their houses the following day and some people were invited and they were kept for longer periods.

“The authorities insisted that those people should return money and questions were raised. The EFCC said those people returned money and signed an undertaking to return the rest.

“Already there is soft landing, so I didn’t need Prof. Sagay to tell me what was going on.”

Meanwhile, the issue has thrown up mixed feelings among Nigerians including analysts, who have argued for and against any form of soft landing for looters returning money.

Analysts have, however, described plea bargain and soft landing as the same, saying none of them had a place in Nigeria’s constitution.

The opinion of the presidential candidate of KOWA Party in the last general elections, Prof. Remi Sonaiya, was that plea bargain would encourage corruption.

For example, Sonaiya said she would never consider granting any corrupt person plea bargain if she were the President, irrespective of whether the looted funds were returned or not.

She said plea-bargain was putting rich people beyond the reach of the arms of justice.

“If I was the President, everybody would be made to face the consequences of their actions,” she said.

“Justice is supposed to be blind, isn’t it? The symbol of justice is a woman that is blind, so it is supposed to be blind to people’s social status and so on. This is so that the law can apply to everybody equally.

“It is either we are running a system or we are not running it at all. So I don’t subscribe to it at all and I am even empahasising that I don’t understand why people should be thinking like that.

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“When looters were busy stealing money, did they not think about their positions in the society? Then, it was not beyond their positions to be stealing that kind of money. If you are in a position of trust, you should enforce certain rules of comportment upon yourself. They failed to do that and now we are considering them for soft landing.”

However, a former Chairman, Nigerian Bar Association, Ikeja branch, Mr. Onyekachi Ubani, explained that plea bargain should not mean “granting total pardon to an accused person or a defendant in a case.”

Ubani said it only meant that the defendant would get a lesser sentence than they could have got for opting to come clean rather than waste the time of the court or the resources of the state.

According to Ubani, it will be irrational for a suspected looter returning less than 90 to 95 per cent of stolen fund to be granted plea bargain or qualify for any form of soft landing.

He said, “Plea-bargain is a certain procedure that is adopted in most developed economies. If an accused person comes forward to make it easier for the state to get conviction for a criminal offence that is alleged to have been committed, the state is always very happy with such an arrangement.

“So if someone who allegedly stole so much money is ready to return a substantial part of it, there is no joy in going the entire process of trying him and wasting resources because Nigeria has to pay the prosecutors.

“If the person cooperates, come forward and says he is guilty, and presents the money he stole, won’t it be wicked to say let us go and try them and sentence them to 20 years’ imprisonment? Don’t you think that it will not help the system, especially in encouraging others who may be willing to come forward to surrender the money they have stolen?

“Also, every case will be looked at on its own merit before you arrive at a conclusion. If somebody willingly comes forward without being prompted to do so, I think it will be better for that person to go away with a lesser sentence rather than for the state to go through the entire rigorous process of trial, which would waste time and money.

“But if somebody steals N10bn and returns N5bn, the person cannot be considered to have repented. I would want a situation where somebody alleged to have stolen N10bn returns N9bn or N9.5bn, then you can say the person has repented. If he keeps N5bn out of the N10bn stolen, he has not repented.”

However, in the absence of a provision for plea bargain in Nigeria’s constitution; Ubani said a law should be enacted to encourage it, in which the conditions and aspects of plea bargain are clearly spelt out.

He said, “I would recommend that we have an Act that deals with plea bargain as a procedure in Nigeria, which is well spelt out.”

But Sonaiya insisted that there was no justification for Ubani’s recommendation to have a provision for plea bargain in the country’s constitution as such would not apply to the poor.

“Why can’t everybody face up to the consequences of their actions?” She asked.

“Regularly, we hear about poor people who steal mobile phones and things like that being jailed for six months and then we hear about soft landing for people whose actions have led to the deaths of a lot of people.

“If we think in terms of what their actions have cost us as a nation, should we not be even angrier with them? The bad roads have led to accidents and loss of many lives.

“The money that should have been spent on giving us good schools and hospitals have been embezzled and the bad hospitals have led to the loss of many lives and now we are talking about giving soft landing to people who have brought that kind of a thing on us. I don’t understand it. I don’t understand why certain individuals are bigger than our institutions.”

Oshoma, however, opined that plea bargain should only be extended to people who return funds on their own volition and not those who did so after being caught through investigation.

“If in the course of investigation, someone is discovered to have committed the crime, it means that he did not willingly submit himself,” Oshoma said.

“So I don’t think that such a man, even if he returned the proceeds of the corruption, should be granted plea-bargain.

“Prof. Sagay should direct his statement at those who have not returned their loots and have not been found to be connected to the crime.

“He should announce that such people can return the loots and get soft landing but if they are found out to have stolen public funds after investigations, then they will return the money and still be prosecuted.”

Even though, Nigeria’s constitution does not recognise plea-bargain, Oshoma said it gives power to the Attorney-General of the Federation to discontinue the prosecution of a criminal case “by entering into Nolle Prosequi.”

“Section 174 of the 1999 constitution gives power to the Attorney-General of the Federation to discontinue any criminal matter before judgement is delivered,” he said.

“He does not need to explain to anybody and it must be in public interest, so all he has to do is to say that it is in the interest of the public.”


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