DEVELOPMENT OF PLEA BARGAINING IN THE ADMINISTRATION ...

DEVELOPMENT OF PLEA BARGAINING IN THE 

ADMINISTRATION OF CRIMINAL JUSTICE IN 

NIGERIA: A REVOLUTION, VACCINATION 

AGAINST PUNISHMENT OR MERE EXPEDIENCY? 

Preamble 

By 

Oguche Samuel * 

Criminal justice administration is taking new dimensions 

worldwide. One of the recent developments in the 

administration of criminal justice is the emergence of plea 

bargaining. Most criminal prosecutions are concluded even 

without a trial. This happens in form of compromises 

between the parties concerned - the prosecutor and the 

accused. The parties to these compromises trade various risks 

and entitlements: 

the accused relinquishes the right to go to trial, 

while the prosecutor surrenders the right to seek the 

highest sentence or pursue the most serious charges 

possible. 1 It follows therefore, that the accused also 

yields up any chance of acquittal. The resulting 

bargains differ predictably from what would have 

happened had the same cases been taken to trial. 

Accused who bargain for a plea serve lower 

sentences than those who do not. On the other 

hand, everyone who pleads guilty is, by definition, 

convicted, while substantial minorities of those 

who go to trial are acquitted. 

*. Lecturer, Faculty of Law, University of Jos, Nigeria. 

1. Robert E. S. and William J. S.: “Plea Bargaining as Contract”, (1991- 

1992) , 101 Yale L.J at 1911.

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NIALS Journal of Law and Development 

There is something puzzling about the polarity of 

contemporary reactions to this practice. Most legal scholars 

oppose plea bargaining, finding it both inefficient and 

unjust. 2 Nevertheless, most participants in the plea bargaining 

process find the practice as a panacea in the administration of 

criminal justice. In an epoch where the practice of plea 

bargain has come under opprobrium, especially in relation to 

the anti-corruption fight, it is only apt to engage in an 

exercise of self-flagellation and make a few 

recommendations for that will impact on criminal justice 

administration. 3 

The Concept of Plea Bargaining 

Practitioners and Scholars are not agreed on the exact 

meaning of plea bargaining. Like the proverbial elephant that 

was subject of description by various blind men, plea 

bargaining can be described in diverse ways depending on 

the perception of each practitioner or scholar. There is no 

doubt that the practice of plea bargain is rooted in common 

law, from the Medieval English Common Law court of guilty 

pardons to accomplices in felony cases. In modern times 

however, the significance it has acquired and the popularity it 

has gained can be traced to the United States of America. 4 

No standard definition of plea-bargaining exists among 

practitioners. The definition of “plea bargaining” varies 

depending on the jurisdiction and on the context of its use. 5 

However, to understand the core problems of plea 

bargaining, it is quite necessary that we must first settle on 

2. Ibid. See footnote 4 where the learned authors said the most influential 

(and prolific) critics are Albert Alschuler and Stephen Schulhofer, both 

Professors at the University of Chicago. 

3. Alubo A.O.: “Plea Bargain and the Anti-Corruption Crusade in Nigeria”, 

University of Jos Law Journal, Vol. 8, No 2, September, 2009 at p. 1. 

4. See generally Olin, D. “Plea Bargain” 

available@http://www.truthinjustice.org accessed on August 12, 2010. 

5. See Miller, H.S.: et. al, “Plea Bargaining in the United States” at 1-15.

Development of Plea Bargaining in The Administration of 

Criminal Justice in Nigeria : 

A revolution, Vaccination Against Punishment or mere Expediency? 

some working definitions that encompass the broad range of 

practices that can adequately come within the legal regime of 

plea bargaining. 

Plea bargain has been defined in the following words: 

A negotiated agreement between the 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, usually a more 

lenient sentence or a dismissal of the other 

charges- Also termed plea agreement; 

negotiated plea. 6 

It has also been defined as: 

An informal arrangement whereby 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. 7 

Authors such as John, H. Langbein, call plea bargaining 

“condemnation without adjudication.” 8 The definition by a 

Nigerian author is more apt. Nchi defines plea bargaining as 

“an informal arrangement whereby the accused person agrees 

6. Garner B. Black’s Law Dictionary, 7th Ed.: (St. Paul Minn: West 

Publishing Company Ltd., 1999) at p. 1173. 

7. Nchi, S.I.: The Nigerian Law Dictionary 2nd Ed. (Jos: Greenworld 

Publishing Company Ltd., 2000) at 403. 

8. Langbein, J.H.: “Law Without Plea Bargaining: How the Germans Do It”, 

78 Michigan Law Review 204 (197) at 204. See also Alschuler, A.W.: 

“The Prosecutors Role in Plea Bargaining”, 36 (1969) University of 

Chicago Law Review, 50 and Alschuler, A.W.: “The Defense Attorney’s 

Role in Plea Bargaining”, 84 (1975) Yale Law Journal, 1179. 

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to plead guilty to one or some charges in return for the 

prosecution agreeing to drop other charges or a summary 

trial.” 9 The definition should have also added “… prosecution 

agreeing to drop other charges or for a lenient sentence.” 

Plea bargain has been seen as the process of negotiation 

between the parties in a criminal case involving the 

defendant’s agreement to plead guilty in return for the 

prosecutor’s concession reducing either the sentence or the 

seriousness of the charge. 10 This definition seems 

unsatisfactory as it seems to suggest that an accused person 

stands to face only one charge. In actual sense, an accused 

person may face multiple charges during criminal trials. 

Plea bargaining is a non trial mode of courtroom 

transaction that consists of an exchange between prosecution 

and defence in criminal cases. 11 In exchange for a guilty plea, 

the defendant receives dispositional concessions from the 

state. The state, in turn, gets cases processed expeditiously 

with minimal expenditure of legal trial. 12 As an alternative to 

a trial mode of procedure, plea bargaining presents itself as 

an economical method of criminal justice. It provides the 

means of disposing of cases with less expenditure of time and 

money than full-scale trial. Practitioners endorse plea 

bargaining as an essential component of the criminal justice 

9. Nchi, loc. cit. See the recent case of USA v. John Walker Lyndh, where 

upon Plea Bargaining consented to by the US President himself, an 

American Taliban fighter in Afghanistan was given 20 years prison term 

upon pleas to two of the twenty charges of terrorism leveled against him 

by the United States Government following the defeat of Al Qaeda and the 

Taliban in Afghanistan. 

10. U.S. History Encyclopaedia: http://www.answers.com/topic/pleabargain?car=biz%20fin 

. Accessed on 14/8/2010. 

11. Maynard, D.W. (1982): ‘Aspects of Sequential Organization in Plea 

Bargaining Discourse’, Human Studies 5: 319–44. Also Alschuler, A. 

(1976): ‘The Trial Judge’s Role in Plea Bargaining’, Columbia Law 

Review 76:1059–154. 

12. Feeley, M. (1999): ‘Perspectives on Plea Bargaining’, Law and Society 

Review 13: 199–209.




system, which is the ‘most effective way of reducing their 

caseloads while at the same time doing justice’. 13 Its 

efficiency in handling heavy caseloads has made American 

Criminal Courts dependent on plea bargaining as a matter of 

economic necessity. Many countries are fast following suit 

and Nigeria, which has no statute permitting or prohibiting 

same is not left behind as some notable cases have been 

decided by an agreement reached by the Accused and the 

Prosecutor 14 . Given this administrative dependence, Judges 

are encouraged to use plea bargaining to expedite case 

processing. 15 However, critics charge that plea bargainer is a 

triumph of administrative and organizational interests over 

justice. They argue that plea bargaining deprives the accused 

of a Constitutional Right to trial by an impartial Jury or 

Judge. 16 Out of prosecutorial and judicial eagerness to 

dispose of the cases, it penalizes an innocent person who 

pleads guilty to avoid the risk of severe punishment, while 

granting ‘undue leniency’ to a guilty person who pleads 

guilty. 

The concept has also been defined as: 

13. Maynard, D.W. and Manzo, J.F. (1993): ‘On the Sociology of Justice: 

Theoretical Notes from an Actual Jury Deliberation’, Sociological Theory 

11: 171–93. 

14. The cases of the former Governor of Bayelsa State, Alameseigha and Tafa 

Balogun, the former Inspector General of Police, Former Governor of 

Enugu State Chimaroke Nnamani are examples. 

15. Heumann, M. and Loftin, C. (1998): ‘Mandatory Sentencing and the 

Abolition of Plea Bargaining: The Michigan Felony Firearm Statute’, Law 

and Society Review 13: 393–430. 

16. Atkinson, J.M. (1992): ‘Displaying Neutrality: Formal Aspects of 

Informal Court Proceedings’ in P. Drew and J. Heritage (eds): Talk at 

Work: Interaction in Institutional Settings, pp. 199–211. Cambridge: 

Cambridge University Press. 

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The process whereby the accused and the 

prosecutor in a criminal case work out a 

mutually satisfactory disposition of the case 

subject to court approval. It usually involves 

the defendant’s pleading guilty to a lesser 

offence or to only one or some of the counts 

of the multi-count indictment in return for a 

lighter sentence than that possible for the 

graver charge. 17 

The first part of the definition suggests that plea bargains 

are “mutually satisfactory dispositions”. While it is quite true 

that bargain struck must be agreed upon by both sides to the 

bargain and guilty plea must be made intelligently and 

voluntarily, 18 this does not guarantee a mutually satisfactory 

result. The prosecutor may be forced to present a highly 

favourable offer to a defendant as a result of errors in 

procedure that may cause evidentiary problems at trial. 19 On 

the other hand, the strength of the prosecutor’s bargaining 

power may present the defendant with almost equally 

unfavourable choices. For example, the prosecutor’s offer 

may involve merely not taking advantage of broad powers 

granted by the legislature such as not over charging the 

defendant, not charging him as a multiple offender, or 

grouping several convictions for the same incident into a 

single sentence. In either case, the description “mutually 

satisfactory disposition” clearly belies the true nature of the 

situation. 20 

It also becomes obvious from the above definition of plea 

bargaining that the phrase “subject to court approval” is 

17. See Alubo A.O.: op cit., at p. 5, quoting Black H.C. 

18. See Brody v. United States, 397, U.S. 742 (1970). 

19. See Alschuler, A.W.: “The Prosecutor’s Role in Plea Bargaining” (1968) 

36 U CHI. L. Rev. 50. 

20. Alubo A.O. op cit., at pp. 5-6.




suggestive of the fact that plea bargaining is subject to 

judicial review by the judge. In contrast to the above 

inference, plea bargaining is a situation where judicial 

interference is non-existent. On this issue, Alubo had this to 

say: 

Implicit plea bargaining by definition is never 

officially subject to court approval. It involves 

situations where defendants do not negotiate for 

certain concessions but instead are presented with 

the fact that if they go to trial, they will be 

punished more severely. Despite the lack of formal 

agreement for this bargain, this type of plea 

bargaining is often made quite explicit to the 

defendant but not subject to court approval. In 

addition, prosecutors can independently drop 

charges against the defendant in exchange for a 

guilty plea. Moreover, judges seldom reject plea 

bargaining agreement involving sentencing 

recommendations by the prosecutor. In our view, 

therefore, the phrase “subject to court approval” 

obscures the reality of plea bargaining and 

inappropriately limits the definition of plea 

bargaining. 21 

Theoretically, judges are prohibited from direct 

participation in plea negotiations. The rationale behind such a 

prohibition is based on the idea and doctrine of impartiality 

and that Judges’ actions tend to have an inherently coercive 

connotation. However, it should be noted that in practice, the 

Judge staying neutral for plea bargains is a herculean task 

Another area that is worth analyzing here is the part of 

the definition suggesting that plea bargaining “usually 

21. Ibid, at p.6. 

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involves the defendant’s pleading guilty to a lesser offense in 

return for a lighter sentence.” The phrase is a radical 

departure from the true nature and reality of plea bargaining 

as it ignores the various advantages and benefits that may 

accrue to an accused person in exchange for his guilty plea. 

The variety of concessions the state offers defendants extends 

to the limits of the prosecutor’s or judge’s imagination. These 

concessions generally can be divided into two categories: 

charge bargaining concession and sentence bargaining 

concession. 22 Charge bargaining involves offering a 

reduction of the charges as the dismissal of one or more of 

the charges in exchange for the guilty plea. For example, in a 

trial for five charges (or counts as the case may be), it may be 

agreed that the accused pleas guilty to two in exchange for 

withdrawal of the remaining three. On the other hand, 

sentence bargaining includes a wide range of offers that 

extends beyond merely an offer for a lighter sentence in 

return for a guilty plea. It is on this note that we are in 

agreement with Professor that the definition under review is 

inadequate. 

At this juncture, it suffices to say that the most preferred 

definition is that given by Alschuler, A.W, which sees plea 

bargaining as “the defendant’s agreement to plead guilty to a 

criminal charge with the reasonable expectation of receiving 

some consideration from the State. 23 This definition is wide 

enough to cover both charge bargain and sentence bargain. In 

a compendium, plea bargaining is an arrangement, informally 

but legally, where the prosecutor makes concessions or 

overtures to an accused person that certain charges or 

sentences would be eliminated or made lighter if the accused 

admits guilt. 24 

22. Miller, op. cit. at 30. 

23. See Alschuler A.W.: “Plea Bargaining and Its History” (1979), 79 Colum. 

L. Rev. 1, 3. 

24. Alubo A.O. op cit. at p. 11.




Historical Development of Plea Bargaining 

The origin of plea bargaining is so unclear. It has been 

claimed that it is old as public prosecution. It is believed that 

it originated from the United States of America as this is 

evident in their criminal jurisprudence. In the United States, 

it was used only episodically before the 19 th century. In 

America it can be traced almost to the very emergence of 

public. Most cases reported where the doctrine was used are 

American cases, although not exclusive to the U.S developed 

earlier and more broadly here than most places. .25 As a result 

of the fact that judges, not prosecutors, controlled most 

sentencing, plea bargaining was limited to those rare cases in 

which prosecutors could unilaterally dictate a defendant’s 

sentence. 26 

Not until the crush of civil litigation brought in by the 

explosion of personal injury cases in the industrial era that 

Judges began to appreciate the workload relief plea bargain 

promised. In other words, plea bargaining is usually another 

outgrowth of late 19 th century industrialization. A notable 

history of plea bargain can be traced to the 15 th century. The 

famous Galileo was given a sentence of house arrest from the 

inquisition in exchange for his reciting penitential psalms, 

weeding and recanting Copernican heresies. 27 

As late as the 18th century, ordinary Jury trial at common 

law was a Judge-denominated, lawyer-free procedure 

conducted so rapidly that plea bargaining was unnecessary. 

Thereafter, the rise of adversary procedure and the law of 

evidence injected vast complexity into jury trial and made it 

25. Dirk O.: “Plea Bargain” The New York Times Magazine, September 29, 

2002 www.nytimes.com accessed on 13/8/2010. 

26. Ibid. 

27. Ibid. 

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unworkable as a routine depictive procedure. A variety of 

factors, some quite fortuitous, inclined caseload into contrail 

plea bargaining procedure rather than to refine its trial 

procedure as contemporary legal system was doing. 

Plea bargaining was unknown during most of history of 

the common law. 28 Only in the nineteenth century we found 

significant evidence of the practice in either England or 

America. These findings beckon to legal historian for 

explanation. In modern time, plea bargaining has become the 

primary procedure through which we dispose of the vast 

proportion of cases of serious crimes. How then could 

common law procedure function for so many centuries with 

practice that is today so prevalent and seemingly so 

indispensable? 

The Nature of Plea Bargain 

Let us reiterate here once again, though at the expense of 

repetition that there are two basic types of plea bargain viz: 

Charge bargain and sentence bargain. In the case of charge 

bargain, it is arranged in a way that the prosecutor takes out a 

less serious offence charge which carries a consequent less 

punishment than what would have been obtainable if the 

original charge were preferred and the accused successfully 

prosecuted. In this case, the accused person must have 

pleaded guilty to one or more charges, depending on the 

bargain. The second type of plea bargain is sentence bargain. 

In this case, the charges or counts need not be more than one. 

It may be a single charge or count. Here the accused person 

agrees to plead guilty to the charge in exchange for the 

prosecution agreeing to a minimal punishment. Under 

sentence bargain, it is necessary that the offence in question 

must carry alternative punishments. If the offence carries a 

28. Beatie, J. M. (1977): ‘ Crime and Courts in Surrey: 1736-1753”, in J. S. 

Cocburn (ed):




single mandatory punishment without any option, then it is 

the view of the present writer that there is nothing to bargain 

as the accused person may have nothing to gain from the 

bargain. Moreover, it will become necessary, where there 

alternative punishments, that the judge be involved in the 

bargain in order to give effect to the bargain by way of 

lenient punishment. This is because if the judge is jettisoned 

from the bargain, he chooses what to do in terms of 

punishment since he is not in the know of the bargain. In the 

case of sentence bargain, although the charge may correctly 

reflect the conduct for which the accused is charged, the 

prosecutor recommends a lenient sentence. 29 

Despite the above distinctions, it has been said that there 

is no strict dichotomy between the two types of bargains. 

This reasoning has been explained in the following words: 

This is due to the fact that whichever is adopted, 

the end result is that the accused person is likely 

to get a lighter punishment for the offence he has 

committed in consideration for pleading guilty. 

The above categorization of plea bargain depicts 

the practice in the U.S. where plea bargaining is 

deeply entrenched in the administration of 

criminal justice. In England, Wales, Australia and 

Scotland, 30 only charge bargain is allowed. In the 

U.K. two forms of plea bargains similar to charge 

bargains is practiced. The first is where the 

prosecution agrees with the accused that if the 

accused pleads guilty to a lesser offence they will 

accept the plea. The other is where the 

29. James F.P.: “Plea Bargaining” (1972) 1 AM, CRM, L. 187. 

30. Moody, S.R. & Tomps J.: “Plea Negotiations in Scotland” Criminal Law 

Review, Jan-Dec. (1983) p. 297. 

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prosecution may agree not to proceed on one or 

more of the counts in the indictment if the 

accused will plead guilty to the remainder. 31 

Plea bargaining is a process of abbreviated treatment of 

routine cases whereby the defendant charged with the 

commission of an offence or offences agrees to plead guilty 

to the charges or any of them in exchange for a lesser 

punishment without going for trial. Sometimes, it may be for 

a states agreement to dismiss other charges. For example, a 

defendant may face the charges of burglary, rape and 

sodomy. The defendant may agree to the charges of burglary 

and rape in exchange of the state’s agreement to drop the 

sodomy charge. 32 

Plea bargain has semblance of a contract to a certain 

extent. It seems to have most, if not all, the ingredients of a 

valid contract. A valid contract has the following elements: 

a. Offer 

b. Acceptance 

c. Consideration 

d. Legality 

e. Intention to create legal relations 

In terms of offer, we submit that this element of contract 

is also present in plea bargaining. This takes the form of 

proposals for bargain presented to the other party for the 

purpose of deliberation and possible adoption. There are also 

cross offers and counter offers made by parties to plea 

bargains before conclusions and agreements are finally 

31. Oba C.: “Plea Bargain in a Developing Nigeria: Merits and Demerits” 

Alubo A.O. et al: Emerging Issues in Nigerian Law: Essays in Honour of 

Honourable Justice B.A. Adejumo (Ibadan: Constellation Publishers, 

2009) at p. 33. 

32. See Alubo A.O.: op cit, p. 7.




reached. It has been said that the offer comes in the form of 

concessions to the accused that a lesser charge will be 

substituted for the one he is currently charged with or that 

some of the charges brought against him are dropped or still 

that if the accused person pleads guilty, the prosecution will 

not move for maximum sentences or punishments. 33 

Acceptance is another vital element in the plea 

bargaining process. The prosecutor presents his offer to the 

accused which the latter has to accept before the said plea 

bargain becomes effective. It should be noted that the 

accused is also free to make counter offers or cross offers in 

the process, which is also subject to acceptance by the 

prosecutor. On this note, it is significant to say that in the 

absence of acceptance, plea bargaining is an exercise in 

futility. Acceptance here simply means approval of the terms 

of the bargain as presented by the offeror. 

Consideration has been said to be a sine qua non in every 

valid contract. It refers to something valuable in the eyes of 

the law proceeding from the offeree to the offeror in the 

performance of the contract. Consideration need not be 

adequate but has to be valuable. In the context of plea 

bargain, consideration is the plea of guilty emanating from 

the accused person in favour of the prosecution. It is valuable 

since it saves the prosecution the pains of proving the guilt of 

the accused person during trials since the burden of proof is 

always on the prosecution, 34 which standard of proof is that 

of proof beyond reasonable doubt. 35 

In terms of legality, it is also a matter of common 

knowledge that every valid contract must pass legality test. 

33. Ibid. 

34. Section 138 (2) of the Evidence Act, Cap E14 Laws of the Federation of 

Nigeria, 2004. 

35. Section 138 (1) of the Evidence Act. 

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This means that a contract is void which the subject is an 

illegality; hence no action can arise from such a contract. 

This is expressed in the latin maxim: 

Ex turpi contractu non oritur action”. 36 The 

implication is that every subject of contract 

must be legal so as to give life to the contract. 

In the context of plea bargaining, we submit 

that it is also legal for the accused to decide 

what his plea should be. In the same way, it is 

legal for the prosecution to choose what charges 

to prefer against an accused person. It is also 

legal for the judge to decide whether or not to 

pronounce maximum sentence on an accused 

person or show leniency, in view of availability 

of mitigating or aggravating factors. We submit 

that guilty plea is enough mitigating factor to 

justify leniency. 

Intention to create legal obligations is an essential 

element of a valid contract. This means that both parties to a 

contract must intend that the contract be legally binding and 

enforceable. This explains why domestic agreements are not 

enforceable, especially those between spouses. In the same 

way, parties to a plea bargain also intend that the bargain be 

binding. However, the level and extend of the binding nature 

of plea bargain is still doubtful. This is consequent upon the 

fact the parties to a plea bargain are at liberty to change their 

position. 37 

36. This means no action arises from a wrongful contract. 

37. See Alabama v. Smith, Supreme Court of the United States (1989), 490 

U.S. 794, 109 S. Ct. 2201, 104 L. Ed: 2d 865.




Plea Bargain and Guilty Plea Juxtaposed 

It should be noted that there are several options open to 

accused persons during criminal trials. These options include 

the following: 

a. Plea of guilty 

b. Plea of not guilty 

c. Refusal to plead 

d. Standing mute 

e. Objections to the jurisdiction of the court 38 

There is a close relationship between plea bargains and 

guilty pleas. The meaning of plea bargains is what we have 

been discussing so far in the course of this work. It is also 

necessary for us to now consider the meaning and nature of 

guilty pleas. A guilty plea is a formal admission in court by 

the defendant as to his guilt of having committed the criminal 

act for which he is charged. Not all guilty pleas result from 

plea bargains, but plea bargains generally result in guilty 

pleas. Plea bargains come in a variety of forms but generally 

involve an exchange of concessions from the state for the 

defendant’s guilty plea. 39 It is very important to keep in mind 

that banning plea bargaining does not include the elimination 

of all guilty pleas. 40 

Guilty plea has been said to be an accused person’s 

formal admission in court of having committed the charged 

offense. A guilty plea is usually part of a plea bargain. It 

must be made voluntarily, and only after the accused has 

been informed of and understands his or her rights. A guilty 

38. The accused can also raise special defences like autre fois convict, autre 

fois acquit, pardon etc. 

39. See Alschuler, A.W.: “Plea Bargaining and Its History”, (Supra) at 1 and 

Winshingrad, J.: “The Pleas Bargain in Historical Perspective” (1974), 23 

BUFF. L. Rev. 499. 

40. Alubo A.O. op cit at p. 7. 

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plea ordinarily has the same effect as a guilty verdict and 

conviction after a trial on the merits. 41 

Plea bargaining is nothing but a simple expediency. It 

may approximate (although it cannot repeal) the outcome of 

the adjudication but at lower cost. The Supreme Court of the 

United States of America has been mercifully frank in 

explaining why it feels obliged to treat plea bargaining as “an 

essential component of the administration of justice … if 

every criminal charge were subjected to a full scale trial, the 

states and the Federal Government would need to multiply by 

many times the number of judges and court facilities.” 42 

Plea Bargaining in America 

Plea bargain operates in the form of negotiation between the 

state and an accused person. This is achieved by the 

prosecutor handling a particular case making offers to an 

accused person mostly through his lawyers or vice versa. The 

offer normally comes in the form of concessions to the 

accused that a lesser charge will be substituted for the one he 

is currently charged with or that some of the charges brought 

against him are dropped or still that if the accused person 

pleads guilty, the prosecution will not move for maximum 

punishment. 43 The prosecutor in the American plea 

bargaining called charge or court bargaining, in American 

practice, the prosecutor has the authority, for example, to 

reduce the charge in return for a concession of guilt. 

In 1969, to avoid execution, James Earl Ray pleads guilty 

to assassinating Martin Luther King Jr. and got 99 years in 

prison. In 1973, Spiro Agnew resigned his Vice-Presidency, 

pleading no contest to the charges of failing to report income, 

he got three years probation and a $10,000 fine. 

41. Garner B., op cit at p. 1171. 

42. 272 U.S. 451. 

43. Oba C. op cit., p. 33.




The following has been said about the American plea 

bargaining style: 

The American sentencing differential works by 

threat. It is briefly summarized thus: concede 

guilt and accept X penalty or go to trial and risk 

X-plus. In the form of plea bargaining styled 

“explicit”, the prosecutor delivers the threat 

negotiations with the accused or his counsel. In 

so called “implicit” plea bargaining, the 

differential is non-negotiated. In either case, the 

system depends upon the widespread 

understanding of the existence of the 

differential. The deal or tariff must be 

communicated to the accused, at the minimum 

by the defense counsel and sometimes by the 

prosecutor or judge as well. The American 

defendant waives his right to trial not in 

exchange for lesser sanction (but which often 

results) but to save the time, nuisance, 

occasional notoriety and occasional defense 

cost involved in waging a hopeless contest. But 

sometimes, the state may make an offer of a 

lesser charge and the defendant may accept it 

for a lesser sanction. 44 

Going by the system of plea bargain in the United States, 

criminal defendants who plead guilty to the charge or charges 

for which they stand trial in consequence of a plea bargain 

receive leniency in terms of sentence than those who insist on 

trial. The favour received by such criminal defendants is as a 

result of the fact that by pleading guilty, the defendant has 

44. Alubo A.O.: at p. 8. 

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saved the time of the court and also spared the court the 

energy that would have been dissipated in going into full 

trial. Besides, such defendants have saved the state the 

expense of a trial, because their plea is accepted as an act of 

repentance and a step towards rehabilitation, because the 

abbreviated version of the case history may be less offensive 

than the story that unfolds at a full trial and because the judge 

may believe that the defendant who has pleaded not guilty 

has committed perjury in his defense. 45 At the trial, the 

American prosecutor may be reluctant to accept a plea that 

was offered to a defendant and rejected because he will 

already have lost one of the benefits to be gained from the 

earlier plea – the opportunity to avoid preparing for trial. 46 

As we pointed out earlier in this work, a criminal 

defendant has a right to accept or refuse plea bargains. As 

compared with contract, we earlier submitted that the binding 

nature of plea bargains is still in doubt, if not zero. An 

accused person has the right to derogate from plea bargains. 

He can withdraw from plea bargains even if he has been 

sentenced on his guilty plea as a result of bargain. The danger 

here is that where a defendant agrees to plead guilty and he is 

convicted and sentenced accordingly, but later withdraws his 

guilty pleas, he risks a more severe punishment if he is found 

guilty of the charge. The case of Alabama v. Smith 47 

illustrates this fact. In this case, the defendant, Smith, in 1985 

was indicted by an Alabama grand jury for burglary, rape and 

sodomy. All the charges related to a single assault. Smith 

agreed to plead guilty to the burglary and rape charges in 

exchange for the State’s agreement to dismiss the sodomy 

charge. The trial court granted the State’s motion to dismiss 

the sodomy, accepted respondents guilty pleas and sentenced 

45. Yale Law Journal (1956) “Comment: The Influence of the Defendant’s 

Plea on Judicial Determination of Sentences”, Yale Law Journal, 209-21. 

46. Alubo A.O. op cit, pp. 8-9. 

47. Supra.




him to a concurrent term of thirty years imprisonment on 

each conviction. Later the respondent withdrew his guilty 

pleas, claiming that he had not entered them knowingly and 

voluntarily. The trial court denied the motion but the 

Alabama Court of Criminal Appeals reversed, finding that 

the respondent had not been properly informed of the 

penalties associated with the crimes to which he had pleaded 

guilty. The case was reassigned to the same trial judge. The 

State moved to reinstate the charge for first-degree sodomy, 

the trial court granted that motion and the respondent went to 

trial on all the three original charges. 

In course of the trial, it was the testimony of the victim 

that the respondent had broken into her home in the middle of 

the night, clad only in his under wear and a ski mask and 

wielding a kitchen knife. Holding the knife to her chest, he 

had raped her and sodomised her repeatedly and forced her to 

engage in oral sex with him. The attack which lasted for 

more than an hour took place in the victim’s bedroom, just 

across the hall from the room in which her three young 

children lay sleeping. Respondent took a stand and 

repudiated his post arrest statement, testifying instead that he 

had been in bed with his girlfriend at the time the attack took 

place. The jury returned a verdict of guilty on all three count 

charges. This time, the trial judge imposed a term of life 

imprisonment for the burglary conviction plus a concurrent 

term of life imprisonment and a consecutive term of 150 

years imprisonment on the rape conviction. The rationale 

behind this more severe punishment was explained by the 

court that because the evidence presented at the trial, of 

which it had been unaware at the time it imposed sentence on 

the guilty pleas, it had heard only the respondent’s side of the 

story, whereas now, it has had a trial and heard all of the 

evidence including testimony that respondent had raped the 

67

68 


victim at least five times, forced her to engage in oral sex 

within him and threatened her life with a knife. This decision 

was affirmed both by the Alabama Court of Criminal 

Appeals and the United States Supreme Court. In particular, 

the Supreme Court was of the view that when a grater penalty 

is imposed after a trial than was imposed after a prior guilty 

plea, the increase in the sentence is not more likely than not 

attributable to the vindictiveness on the part of the sentencing 

judge. Even when the judge imposes both sentences, the 

relevant sentencing information available to the judge after 

the plea will usually be considerably less than that available 

at trial. The Supreme Court finally stated that after trial, the 

factors that may have indicated leniency as consideration for 

the guilty plea were no longer present. 

Problems have been identified with the practice of plea 

bargaining in the United States. On this, Alubo commented 

that: 

Another troublesome derivative of plea 

bargaining in the United States is the level of 

charges brought against defendants. Over 

charging is used to coerce guilty pleas (that is, 

manipulating jail terms to persuade defendants 

to plead guilty). Under charging defendants is 

used to reward them. Both to our minds are 

objectionable. The decision to charge in the 

United States is frequently made before the 

investigation is completed. As a consequence, a 

charge that later prove to be too severe may 

originally have been appropriate and can be 

used coercively without implying bad faith from 

the start. It is worthy of note that the guilty plea 

or plea bargaining is not restricted to 

misdeameanours alone. It also extends to 

felonies as well. In the United States, it is 

usually inevitable that prosecutors would often




characterize major offences as misdeameanours 

in order to accomplish a variety of objectives. 

The essence of plea bargaining to the defendant 

is that of avoiding or minimizing jail term. That 

is the major objective of the defendant in 

accepting guilty plea or plea bargaining. 

Ambiguous and difficult cases are negotiated. 

Middle class defendants would get off the hook 

in exchange for substantial charitable 

contributions. 48 

Considering the American system of plea bargain, the 

Supreme Court of the United States of America pointed out 

in Santobelleo v. New York, 49 that plea bargaining as an 

essential component of the administration of justice and that 

if every criminal charge were subjected to full scale trial, the 

States and Federal Government would need to multiply by 

many times the number of Judges and the court facilities. But 

the practice has also been criticized. According to 

Langbein: 50 

Because our Constitutions guarantee adjudication, 

we threaten the criminal defendant with a markedly 

greater sanction if he insisted on adjudication and 

is convicted. This sentencing differential, directed 

towards including the defendant to waive his right 

48. Alubo A.O. op cit., at p. 10. 

49. 404 US 257, (1971). 

50. Loc. Cit. See also Langbein, J.H.: “Torture and Plea Bargaining”, 46 

U.CHI.L. Rev. 3 (1978) at 43; Langbein, J.H.: “Understanding the Short 

History of Plea Bargaining”, 13 Law & Soc. Rev. 261 (1979). See also 

Alubo, A.O.: “The American Plea Bargaining System: Prescrptions for 

Nigerian Criminal Justice” in Dakas C.J.: New Vistas in Law, (Jos: 

Stephens & Sons, 2005) at 258. 

69

70 


to trial, makes plea bargaining work. It also makes 

plea bargaining intrinsically coercive. 

Arguments for Plea Bargain 

Plea bargaining is gaining popularity because of certain 

merits that flow from it. Several merits flow from the practice 

of plea bargaining. One of these is that it may approximate 

the outcomes of true adjudication but at lower cost since the 

adversary procedure and the Law of Evidence have made 

trial procedure so costly that it can only be used in respect of 

serious crimes. 

The rationale for plea bargain is the inability of the 

criminal justice system to handle the volume of Criminal 

Cases that have emanated from industrialization and 

increased criminal activities. The need to promote the 

efficiency of the criminal justice system has been identified 

as the overriding cause for entering plea bargaining 

negotiations in general. 51 Plea bargain makes it easier for the 

prosecution of several criminal cases with much 

convenience. For example, in the U.S, in the Federal District 

Courts in 1998 alone, 69, 769 cases were filed and 60, 958 

entered plea agreements. 52 

It has been argued that plea bargains positions 

prosecutors for the prosecution of serious offences while 

putting their cards on the table in less serious cases. Since 

there are many cases to prosecute, it becomes expedient for 

prosecutors to concentrate on serious cases and dispose of 

minor cases by way of plea bargains. 

Furthermore, plea bargain is advantageous as it saves 

time and at the same time avoids the necessity of public 

trials, thereby protecting innocent victim of crime from the 

ordeal of giving evidence during trials. Plea bargain also 

51. Oba C., op cit. at p. 42. 

52. Ibid.




reduces public expenditure which would have been incurred 

during prolonged trials. 

In the context of Nigeria, plea bargaining facilitates 

decongestion of prisons. The fact that our prisons are 

overcrowded is no longer news. There is poor sanitary 

system in the prisons and facilities are not there; where they 

are, they are dilapidated and therefore not hygienic for 

human beings. 

Some defenders of plea bargaining maintain that it is 

appropriate as a matter of sentencing policy to reward 

criminal defendants (accused persons) who acknowledge 

their guilt. They advance several arguments in support of this 

position—notably, that a bargained guilty plea may manifest 

remorse, an acceptance of responsibility, or a willingness to 

enter the correctional system in a frame of mind that may 

afford hope for rehabilitation over a shorter period of time 

than otherwise would be necessary. 53 

Another argument treats plea bargaining, not primarily as 

a sentencing device, but as a form of dispute resolution. 

Some plea bargaining advocates maintain that it is desirable 

to afford the accused and the state the option of 

compromising factual and legal disputes. They observe that if 

a plea agreement did not improve the positions of both the 

accused and the state, one party or the other would insist 

upon a trial. These defenders view plea bargaining as 

essentially indistinguishable from settling a civil lawsuit. 54 

One of the major advantages of plea bargaining is that it 

helps prosecutors and the courts in the effective 

administration of justice. In all criminal prosecutions, the 

53. Guilty Plea: Plea Bargaining - 

Evaluations Of Plea Bargaining. accessed on 21/8/2010. 

54. Ibid. 

71

72 


accused shall enjoy the right to a speedy trial because justice 

delayed is justice denied. The right to speedy trial cannot be 

compromised or negotiated away. Speedy trial is a 

constitutional and common law right. The constitutional 

guarantee of speedy trial is intended to ensure that accused 

are not subjected to unreasonably lengthy confinement before 

trial. In the U.S for example, when prosecutors violate this 

principle or fail to bring a case to trial for an "unreasonable" 

period of time, courts may be inclined to grant a dismissal of 

the action. 55 

Our courts are not equipped to handle cases speedily and 

if the defendants are to be kept indefinitely in prison, not 

only would it violate their rights, it would also strain and 

impact tax payers money. In addition, if a practice offends 

the constitution, it ought to be driven into the shadows. To 

this effect, the prosecutor may offer the defendant a plea 

bargain in order to "get on with his life." 56 

Finally, some observers defend plea bargaining on 

grounds of economy or necessity. Viewing plea negotiation 

less as a sentencing device or a form of dispute resolution 

than as an administrative practice, they argue that society 

cannot afford to provide trials to all the accused who would 

demand them if guilty pleas were unrewarded—or, at least, 

that there are more appropriate uses for the additional 

resources that an effective plea bargaining prohibition would 

require. Sometimes these defenders add that any attempt to 

prohibit plea bargaining would prove ineffective and would 

merely drive the practice underground. 57 

55. http://www.compassnewspaper.com/NG/index.php?option=com 

_content&view=article&id=31523:plea-bargaining-and-the-crim. 

Accessed on 23/8/2010. 

56. Ibid. 

57. Ibid.




Plea bargains also help the courts and the prosecutors to 

manage caseloads. 58 

Criticisms against Plea Bargain 

Despite the gains of plea bargaining discussed above, certain 

arguments can also form formidable objections against it. 

Plea bargaining undercuts the requirement of proof beyond a 

reasonable doubt and plea negotiation is substantially more 

likely than trial to result in the conviction of innocent 

accused persons. 59 Since the onus of proof rests on the 

prosecution with the standard of proof as beyond reasonable 

doubt, it is an affront to the statutory duty placed on the 

prosecution to prove the guilt of the accused person beyond 

reasonable doubt. Convicted persons on plea bargain might 

actually get an acquittal after a full trial as the prosecution 

might not be able to discharge the onus of proof. 

Furthermore, it can be argued that plea bargaining results 

in unjust sentencing. The practice of plea bargaining turns the 

accused's fate on a single tactical decision, which, we can 

say, is irrelevant to desert, deterrence, or any other proper 

58. In Nigeria, investigation and charging accused persons are done mainly by 

the police, especially in the southern part of the country. It is after 

investigation and charging that the matter is referred to the Attorney- 

General’s office for the DPP’s advice. This happens where the offence in 

question is beyond the jurisdiction of Magistrate Court. There are cases 

where the DPP’s advice takes more than two years to come out. 

Sometimes the court is moved to discharge the accused person, ordering 

that whenever the DPP’s advice is ready the accused can be charged again. 

This sometimes leads to the end of the matter. A major source of delay in 

obtaining the DPP’s advice is the poor handling of investigation by the 

police to the extent that when the file is sent to the Attorney-General’s 

Office, there is little or no information to act on. Most times investigations 

have to be reopened. See Ibid, at p. 44. 

59. Guilty Plea: Plea Bargaining - 

Evaluations Of Plea Bargaining. accessed on 21/8/2010. 

73

74 


objective of criminal proceedings. 60 Some critics maintain 

that plea bargaining results in unwarranted leniency for 

offenders and that it promotes a cynical view of the legal 

process. 

Critics of plea bargaining also object to the shift of 

power to prosecutors that plea bargaining has effected, noting 

that sentencing judges often do little more than ratify 

prosecutorial plea bargaining decisions. They maintain that, 

even more clearly, plea bargaining makes figureheads of the 

probation officers who prepare presentence reports after the 

effective determination of sentence through prosecutorial 

negotiations. 61 Plea negotiation, they say, very frequently 

results in the imposition of sentences on the basis of 

incomplete information. In light of the conflicts of interest 

that beset prosecutors, defense attorneys and trial judges, the 

critics sometimes contend that plea negotiation subordinates 

both the public's interest and the accused's to the interests of 

criminal justice administrators. 62 In their view, the practice 

also warps both the initial formulation of criminal charges 

and, as accused pleads guilty to crimes less serious than those 

that they apparently committed, the final judicial labeling of 

offenses. 

Finally, critics suggest that plea bargaining deprecates 

human liberty and the purposes of the criminal sanction by 

"commodifying" these things—that is, treating them as 

instrumental economic goods. 63 

Critics of plea bargaining have argued that it derogates 

from the constitutional right of accused persons to trial. This 

right is guaranteed by the Constitutions of most countries. 

For example, the Constitution of the Federal Republic of 

60. Ibid. 

61. Ibid. 

62. Ibid. 

63. Ibid.




Nigeria, 1999 provides that every person accused of a crime 

shall be entitled to a fair trial within a reasonable time. 64 

On how plea bargain process is initiated, Oba C. 

commented as follows: 

A plea bargain is initiated between the 

government, represented by the prosecutor, and 

the accused represented by his or her counsel. 

As with the negotiations of contract or civil 

agreements, there is no standard structure for 

negotiations of plea bargains. The negotiations 

can occur in person or via telephone 

conversations typically, between counsel 

without the presence of the accused. It may also 

take the form of an invitation by the prosecutor 

to the accused and his counsel and at the 

meeting the prosecutor lays the cards on the 

table. Where the former is the option taken, the 

defence counsel is mandated to inform the 

accused person of the offer, the progress of the 

negotiations and any incidental matter. In 

addition, the defence counsel must convey to 

the accused every formal offer made by the 

government. This is because the decision to 

plead guilty belongs to the accused person and 

him alone. 65 

It should be noted that most of the time the prosecutor 

considers the prosecution’s chances at the trial, going by the 

64. See section 36 of the Constitution. Fair trials also entail the observance of 

the two rules of natural justice: Audi alteram partem and nemo judex in 

causa sua. The USA by its sixth Amendment guaranteed a right to a jury 

trial. 

65. Oba C. op cit. at p. 41. 

75

76 


nature of the case, the availability of evidence against the 

accused person and several other factors. This is necessary to 

enable the prosecutor weigh the strength of the prosecution’s 

case and the chances of securing conviction. The strength of 

the prosecution in the negotiation process is based on the 

amount of evidence they have against the accused where 

there are loopholes in their case or they are not likely to 

secure a conviction on the strength of the evidence in their 

disposal, they are more likely to be flexible in the negotiation 

process. In Sivemance, the strength of the prosecution’s case 

will also affect the accused bargaining strength in the 

negotiation. The accused can decipher the strength of the 

prosecution’s case from reviewing all the evidence put before 

them. It is pertinent to state that the prosecution is obliged to 

serve a copy of the charge, the proof of evidence which 

include witness statements, forensic tests and other evidence 

that will be used against the accused in court. The defence 

counsel will then conduct his own investigations and weigh 

the evidence against his client before advising his client to 

plead guilty. 66 

In practice, when a person is accused of a criminal 

offence, he may be invited by the prosecutor to his office and 

then asked to plead guilty to the charge or charges or 

count(s). He is told clearly that if he fails to plead guilty to 

the charge(s) and the matter goes to trial, he would be 

punished severely. In a comparative study in the year 1979, 

William Felstiner identified the differences between the plea 

bargaining procedure in the U.S.A. and penal order in 

Germany. 67 He noted firstly that “in the United States, 

defendants who plead guilty are, in the aggregate, sentenced 

66. Ibid, at p. 42. 

67. Felstiner, W.L.F.: “Plea Contracts in West Germany”, 13 Law and Society 

Review, 309 (1979).




less severely than those who insist on trial”, 68 since favoured 

treatment is granted to an accused person because he has 

saved the State the expenses of a trial and his plea accepted 

as an act of repentance and a step towards rehabilitation. 

Felstiner also noted that a troublesome derivative of plea 

bargaining is the level of charges brought against defendants, 

overcharging is the level of charges brought against 

defendants, overcharging to coerce guilty pleas and 

undercharging to reward them. 69 It does appear that avoiding 

or minimizing jail term is the primary concern of an accused 

person in plea bargaining. 70 

In plea bargaining, defense lawyers are extremely 

paramount. Most plea bargaining contracts in the U.S.A. are 

conducted for and on behalf of their clients, with prosecutors 

and defense lawyers making offers and counter-offers in the 

execution of their briefs. 71 

Alubo has analysed the various attempts that have been 

made to curtail plea bargaining in various jurisdictions. 72 

68. Ibid. Felstiner defined a penal order in Germany as a written proposal by 

the State to a defendant stipulating the crime committed and the penalty to 

be levied if the defendant does not object. 

69. Ibid. See also North Carolina v. Alford 400 U.S. 25 (1970); United States 

v. Jackson 390 U.S. 570 (1968); Hudson v. United States, 272 U.S. 451. 

70. See generally Alubo A.O. op cit. at pp. 11-12. 

71. Ibid. 

72. These attempts take the form of plea cut-off dates, ban on plea bargaining 

after felony indictment and total bans on plea. These attempts to curtail 

plea bargaining have not succeeded in obliterating the plea bargain system. 

In plea cut-offs, a few jurisdictions provide that courts “shall not accept 

negotiated pleas once a pretrial conference has been held or after the 

effluxion of a given period of time. Plea bargain however, until then, 

remains an acceptable method of securing a plea as it accelerates or gives 

impetus to expediting the process of getting a plea. 

In plea ban, certain states, such as (Alaska in 1975) introduced complete 

ban on plea bargain. Charge and sentence bargaining were both banned in 

Alaska amidst opprobrious remarks from critics. But the number of guilty 

pleas did not significantly decrease after the ban as prosecutors obtained 

77

78 


Indian System of Plea Bargaining 

The operation of plea bargaining in India is somehow 

different from the American system. It is a recent 

development in the Indian criminal justice system as it can be 

traced to the Criminal Law (Amendment Act) 2005, which 

introduced Chapter XXI (A). On 5 th July 2006, plea bargain 

came into force in the Indian Criminal Justice System. The 

amendment to the Indian Criminal Code incorporating in a 

loose form the US practice of plea bargain requires that the 

accused pay compensation as part of the deal under which he 

will be imprisoned for no more than half the minimum 

sentence he is liable to serve. 73 

Unlike the American system of plea bargaining which is 

initiated by the prosecutor, the accused person initiates it 

under the Indian system. In this process, the accused person 

files an application for plea bargaining. A feature of the 

Indian plea bargaining is that the accused person has to file 

the aforesaid application any time before the commencement 

of the trial. An affidavit in support of the application is 

necessary. The applicant/accused must depose to the fact that 

he has “voluntarily opted for plea bargaining and that he had 

not previously been convicted on the same charge. Notice is 

then required to be given to the prosecutor or complainant 

the same results. Those who pleaded guilty received shorter sentence than 

those who were convicted at trial. In 1980, the complete abolition of plea 

bargaining was brought to an end. Analogous to complete ban is ban of 

plea bargain after indictment but before the grand jury returns felony 

indictment. In New York when it was introduced in 1992, critics decided it 

on the ground that there would be catastrophic backlog of cases, jail 

overcrowding and a violation of a federal order that limits the number of 

prisoners in city jails. 

73. The Times of India 6 July 2006, sourced from 

www.timesofindia.indiatimes.com/articlesshow/1706071.cms.on 

September 2, 2008, cited from Alubo A.O. loc cit. See also Ghosh, S.S.: 

“Plea Bargaining – An Analysis of the Concept”, 

available@http://www.legalservianduia.com/articles/pleabar.wml. 

accessed on June 10, 2008, cited by Alubo A.O. ibid.




after which the court will examine the accused in camera. 

This examination in camera is for the purpose of ascertaining 

whether or not the accused has filed the application 

voluntarily. Determination of voluntariness of the application 

is significant as it enables the court to proceed with the 

bargain between the parties. If the court is satisfied as to the 

voluntariness of the application, it shall provide time to the 

parties concerned to work out a mutually satisfactory 

disposition which may include compensation to the victim 

from the accused. Voluntariness of the whole transaction is 

essential in the whole plea bargaining exercise. 

The duty of the court extends to making sure that the 

process of working out a satisfactory disposition is also 

voluntary and allow the accused himself to participate in it. 

When the court is satisfied as to the voluntariness of the 

disposition, it writes a report of the satisfactory disposition. It 

is very necessary that the report be signed by the judge and 

all the parties concerned. While disposing of the case, the 

court will direct the accused to pay the agreed compensation 

to the victim and hear the parties on the quantum of 

punishment to the accused. Since the accused is a first-time 

offender, the court will have the option of releasing the 

accused on probation despite his conviction. Alternatively, it 

may sentence the accused to half the minimum punishment 

proscribed for the offence in question. Any judgment arising 

from plea bargaining shall be final and there will be no 

statutory right of appeal against it. 74 

Plea Bargain in Pakistan 

Prior to 1999, plea bargain existed in Pakistan, though 

informally. The concept of plea bargaining was formally 

introduced in Pakistan by the National Accountability 

74. Alubo A.O. op cit. at p. 14. 

79

80 


Ordinance 1999, an anti-corruption law. The uniqueness of 

the Pakistani system of plea bargain is that it seems to be 

applicable only in corruption cases. The Pakistani system 

shares some features in common with the Indian system. For 

example, the Pakistani accused person initiates the plea 

bargain in the sense that he applies for it, accepting his guilt 

and offers to return the proceeds of corruption as determined 

by investigators/prosecutors. The Chairman of the National 

Accountability Bureau endorses it, after which it is presented 

before the court. The court has wide discretion to decide 

whether it should be accepted or not. If the request for plea 

bargain is accepted by the court, the effect depends on 

whether the matter is in trial or in appeal. In the case of the 

former, the accused stands convicted but is not sentenced. In 

the latter case, he does not undergo any sentence previously 

pronounced by a lower court. The consequences of a 

successful plea bargain in Pakistan are legion. For example, 

the accused is disqualified to take part in elections, hold any 

public office, obtain a loan from any bank and is dismissed 

from service if he is a government official. 75 

Plea Bargain in Poland 

Poland has also adopted a limited form of plea bargaining, 

which is applicable only to minor felonies (punishable by not 

more than 10 years of imprisonment). The procedure is called 

“voluntary submission to a penalty” and allows the court to 

pass an agreed sentence without reviewing the evidence, 

which significantly shortens the trial. There are some specific 

conditions that have to be simultaneously met. 

the defendant pleads guilty and proposes a penalty: 

75. Ibid. The learned scholar wrote that the concept of plea bargain and its 

application in Pakistan has been criticised in terms of its ethical and legal 

connotations. He stated further that between 1999 and 2002, the NAB has 

entered into 181 cases of plea bargain through accepted court process and 

recovered an amount of US $36 million.




the prosecutor agrees, 

the victim agrees, 

the court agrees. 

However, the court may object to the terms of proposed 

plea agreement (even if already agreed between the 

defendant, victim and prosecutor) and suggest changes (not 

specific but rather general). If the defendant accepts these 

suggestions and changes their penalty proposition, then the 

court approves it and passes the verdict according to the plea 

agreement. In spite of the agreement, the parties of the trial 

(prosecution and defendant) have right to appeal. 

The Practice of Plea Bargaining in Nigeria 

The practice of plea bargain is obviously very embryonic in 

Nigeria. It was never part of any Nigerian law until 2004 

when the Economic and Financial Crimes Commission was 

established. Looking at a plethora of statutory provisions in 

Nigeria, we have no hesitation in asserting that the first 

federal enactment to experiment with a form of plea 

bargaining is the Economic and Financial Crimes 

Commission (Establishment) Act. 76 The said Act provides as 

follows: 

Subject to the provisions of section 174 77 of the 

Constitution of the Federal Republic of Nigeria 

1999, the Commission may compound any 

offence punishable under this Act by accepting 

76. Act No. 1 of 2004. 

77. This section relates to the power of the Attorney-General of the Federation 

to institute, continue takeover or discontinue criminal proceedings against 

any person in any court of law. 

81

82 


such sums of money as it thinks fit, exceeding 

the maximum amount to which that person 

would have been liable if he had been convicted 

of that offence. 78 

The above section no doubt empowers the EFCC to enter 

plea bargain with the accused and this is done by 

compounding the offence before the case is taken to court, 

they can agree with the suspect who would be told to return 

all the loot and the offence compounded. 

The provision of section 13 (2) of the EFCC Act 

indicates that when an accused agrees to give up money 

stolen by him, the Commission may compound any offence 

for which such a person is charged under the Act. On the 

effect of the above provision of the EFCC Act, Alubo had 

this to say: 

Compounding here means the Commission may 

let go of the offence or put more succinctly may 

agree to drop the charges if the accused is 

prepared to give up such sums of money as the 

Commission may deem fit in accordance with 

the Act. It emphasizes by accepting such sums 

of money. It is obvious that this provision has 

no universal application to all criminal trials in 

Nigeria as negotiations there under are 

expressly limited to offences punishable under 

the Act, Sections 14-18 of the Act provides for 

crimes for which the Commission can exercise 

jurisdiction. These includes: offences relating to 

financial malpractices, offences in relation to 

terrorism, offences relating to public officers 

retention of proceeds of criminal conduct and 

78. See section 13 (2) of the Act




offences in relation to economic and financial 

crimes. In practice however, the EFCC plea 

bargain on other offences. 79 

It is very obvious from our earlier definition of plea 

bargain that what is obtainable under the EFCC Act is a form 

of charge bargain. 

The statutory blessing given to plea bargaining in Nigeria 

is not limited to the EFCC Act. In fact, the most 

commendable step in giving statutory back up to plea bargain 

in Nigeria is the enactment of the Administration of Criminal 

Justice Law 2007, Laws of Lagos State, which 

institutionalized plea bargain in Lagos State. For the purpose 

of proper understanding and appreciation of the position in 

Lagos, let us reproduce the relevant sections of the 

aforementioned law: 

76(1) The prosecutor and a defendant or his 

legal practitioner may before the plea to the 

charge, enter into an agreement in respect of: 

79. Alubo A.O. op cit. at p.15 

(a) a plea of guilty by the defendant 

to the offence charged or a lesser 

offence of which he may be 

convicted on the charge, and 

(b) an appropriate sentence to be 

imposed by the court if the 

defendant is convicted of the 

offence to which he intends to 

plead guilty. 

83

84 


(2) The prosecutor may only enter into an 

agreement contemplated in subsection (1) of 

this section: 

(a) after consultation with the Police 

Officer responsible for the 

investigation of the case and if 

reasonably feasible, the victim, and 

(b) with due regard to the nature of and 

circumstances relating to the offence, 

the defendant and the interests of the 

community. 

(3) The prosecutor, if reasonably feasible shall 

afford the complainant or his representative 

the opportunity to make representations to 

the prosecutor regarding: 

(a) the contents of the agreement; and the 

inclusion in the agreement of a 

compensation or restitution order. 

(4) An agreement between the parties 

contemplated in subsection (1) shall be in 

writing and shall be signed. 

(5) The Presiding Judge, or Magistrate before 

whom criminal proceedings are pending 

shall not participate in the discussions 

contemplated in sub-section (1). 

Provided that he may be approached by 

Counsel regarding the contents of the 

discussions and he may inform them in 

general terms of the possible advantages of 

discussions, possible sentencing options or 

the acceptability of a proposed agreement.




(6) Where a plea agreement is reached by the 

prosecution and 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 correctness of 

the agreement. 

(7) The Presiding Judge or Magistrate shall 

ascertain whether the defendant admits the 

allegations in the charge to which he has 

pleaded guilty and whether he entered into 

the agreement voluntarily and without undue 

influence and may: 

(a) if satisfied that the defendant is 

guilty of the offence to which he 

has pleaded guilty, convict the 

defendant on his plea of guilty to 

that offence, or; 

(b) if he 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 rights referred 

to in subsection (4) of this Section, 

he shall record a plea of not guilty 

in respect of such charge and order 

that the trial proceed. 

85

86 


(8) Where a defendant has been convicted in 

terms of subsection (7) (a), the Presiding 

Judge or Magistrate shall consider the 

sentence agreed upon in the agreement 

and if he is: 

(a) satisfied that such sentence is 

an appropriate sentence impose the 

sentence, or: 

(b) of the view that he would have 

imposed a lesser sentence than the 

sentence agreed upon in the 

agreement impose the lesser 

sentence; or 

(c) of the view that the offence 

requires a heavier sentence than 

the sentence agreed upon in the 

agreement, he shall inform the 

accused of such heavier sentence 

he considers to be appropriate. 

(9) Where the accused has been informed of 

the heavier sentence as contemplated in 

subsection (8) above, the defendant may: 

(a) abide by his plea of guilty as 

agreed upon in the agreement and 

agree that, subject to the defendant’s 

right to lead evidence and to present 

argument relevant to sentencing, the 

Presiding Judge, or Magistrate proceed 

with the sentencing; or 

(b) withdraw from his plea agreement, 

in which event the trial shall proceed 

de novo before another Presiding 

Judge, or Magistrate, as the case may 

be.




(10) Where a trial proceeds as contemplated 

under subsection (9) (a) or de novo before 

another Presiding Judge, or Magistrate as 

contemplated in subsection (9) (b): 

(a) no reference shall be made to the 

agreement; 

(b) no admissions contained therein or 

statements relating thereto shall be 

admissible against the defendant; 

and 

(c) the prosecutor and the defendant 

may not enter into a similar plea 

and sentence agreement. 

The EFCC Act earlier cited has been invoked in several 

cases in Nigeria, especially high profile economic crimes 

cases in Nigeria. For instance, it was invoked in cases like 

Tafa Balogun, Emmanuel Nwude and Nzeribe Okoli and the 

rest. Tafa Balogun, a former Inspector-General of Police, 

approached the court after his arrest and arraignment by the 

EFCC, challenging the powers of the EFCC to prosecute him. 

The said lawsuit was later withdrawn and this led to 

speculations from various quarters that the withdrawal was 

based on a plea bargain, 80 as a result of which he was 

sentenced to a prison term of (6) months which he already 

served in detention. The outcome of Tafa Balogun’s case was 

clearly a result of plea bargaining. 

It was also reported that Emmanuel Nwude and Nzeribe 

Okoli, who stood trial for defrauding a Brazilian bank of the 

sum of $242 million pleaded guilty and were convicted. It 

seems that charge bargain was embarked upon first in Nwude 

80. Soniy, Balogun Withdraws Suit Against EFCC, Punch Newspaper, 

November 18, 2005 at p. 8. 

87

88 


and Okoli’s case to reduce the original charges against them 

from 91 to 16. 81 The most recent incident of the practice of 

plea bargain under the EFCC Act is the trial of the former 

Governor of Bayelsa State. Ironically, the officials of the 

EFCC have consistently denied the existence of any plea 

bargaining with any of the accused persons. 82 

The present writer shares the view that plea bargain is a 

welcome development in Nigeria, nevertheless we must 

exercise caution in the application and practice of plea 

bargain in the context of corruption cases in Nigeria. A 

situation where plea bargain is arranged between the EFCC 

and politicians charged with corruption is not healthy for our 

democracy that is striving to survive. The application of plea 

bargain to corruption cases in Nigeria has been criticized by 

prominent Nigerians. 

The practice has been criticized in the following words: 

The reading of it is that it will make people feel 

‘If I can steal the whole money from Nigeria 

and I can use it to my own advantage left, right 

and centre, once I can get into this plea bargain, 

I will be set free.’ It is something that is not just 

morally right. It is something that will induce 

corruption. This corruption is endemic. If you 

have stolen, let it be taken by due process, in 

accordance with the rule of law. Let those who 

are found guilty serve their terms. What is the 

essence of someone arrested, tried, convicted, 

sentenced and at the end of it you release him 

on plea bargain?...It is akin to a situation 

whereby you are caught by a policeman and he 

81. Kotefe, K.: “242m Scam: Nwude, Okoli Bag 22 Years Respectively”, 

Punch Newspaper, November 19, 2005 at p. 1. 

82. See Adeshina, A.: “EFCC Breached Pact with Bayelsa – Abayomi”, 

Punch Newspaper, December 19, 2005 at p. 5.




says if you give me money I will release you. It 

is part and parcel of corruption. It is still part of 

extortion. The way I look at it is that I frown at 

the whole idea...It will make a mockery of the 

entire process of dealing with corruption. The 

rule of law is clear. Those who are found guilty 

of any crime committed within Nigeria should 

be duly and adequately punished through the 

due process of law. None is above the law. 83 

The most recent manifestation of plea bargaining was 

experienced in the trial of Cecilia Ibru, the former Chief 

Executive Officer and Managing Director of Oceanic Bank. 

Mrs Ibru was arraigned by the Economic and Financial 

Crimes Commission in Court on the 31 st day of August, 2009 

on a 25- count charge, all bothering on corrupt practices in 

office. The charge was subsequently reduced to three and this 

cannot be unconnected with plea bargaining. Consequent 

upon plea bargaining between the EFCC and Ibru, the latter 

decided to plead guilty to the said amended three-count 

charge of alleged abuse of office and mismanagement of 

depositor’s funds levelled against her by the former. 

83. See Odebude, N. & Makind, F.: “Plea Bargain is Corruption – Bola 

Ajibola”: Punch Newspaper, 5th August 2007. In the Alamieyesagha case, 

the accused pleaded guilty consequent upon a plea bargain between him 

and EFCC. The charges against him were reduced to six and he was 

convicted for two years. He subsequently forfeited his loot. There are 

however others who are not opposed to the practice of plea bargain but are 

of the view that asking those who have corruptly enriched themselves with 

public funds to return only a part of the loot is wrong. Olu Falae who was 

a former Secretary to the Federal Government under Gen Ibrahim 

Babangida is of the opinion that the corrupt leaders must be forced to 

return all their loots. Dr. Tunji Abayomi shares the view of Olu Falae and 

has cautioned that plea bargain should not be used to shield some 

influential people from facing justice. 

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90 


Specifically, the anti-graft agency alleged in the amended 

charge that Ibru granted a credit facility in the sum of 20 

million US dollars to Waves Project Limited which sum was 

above her credit approval limit as laid down by the bank. She 

was also accused of failing to take all reasonable steps to 

ensure the correctness of Oceanic Bank monthly bank return 

to the Central Bank of Nigeria (CBN) between October 2008 

and May 2009. Mrs Ibru was also accused of approving the 

granting of a credit facility in the sum of N2 billion by the 

bank to Petosan Farms Limited without adequate security as 

laid down by the regulations of Oceanic Bank, thereby 

committed an offence punishable under section 15 of Failed 

Bank and Financial Malpractice in Bank Act. 84 

As stated above, the accused pleaded guilty as a result of 

plea bargain between her and the EFCC. In the course of the 

proceedings, counsel to the prosecution, Kola Awodein 

(SAN), informed the court that the Commission had reached 

an agreement with Ibru. He disclosed further that the formal 

agreement had also been filed before the court. In his own 

submissions, counsel to the accused, Professor Taiwo 

Oshipitan (SAN), urged the court to consider the action of 

her client to see to the conclusion of the matter as soon as 

possible. He posited that this was because of her love for the 

bank and urged the court to be lenient with her. 85 

In his judgment on Friday the 8 th day of October, 2010, 

Justice Dan Abutu of the trial Federal High Court Lagos 

sentenced the accused to six months imprisonment on all the 

three counts, amounting to eighteen (18) months 

imprisonment. The sentences however, are to run 

concurrently and this means that the convict would spend 

84. Akeem N. and Tunde O.: “Cecilia Ibru Jailed, To Lose N191bn”, Saturday 

Tribune of October 9, 2010, available online at 

http://www.tribune.com.ng/sat/index.php/front-page-articles/2237-ceciliaibru-jailed-to-lose-n191bn.html. 

Accessed on 11/10/2010. 

85. Ibid.




only six months in prison. The judge also ordered that the 

former bank chief should forfeit properties and assets valued 

at N191 billion. These properties included those in Nigeria, 

United States of America and Dubai in addition to shares in 

over 100 firms listed and not listed with the Nigeria Stock 

Exchange (NSE). Justice Abutu ordered that Mrs. Ibru 

should be taken to Reddington Hospital, Victoria Island, 

Lagos, by the prison’s authority within two hours after they 

receive a copy of the judgment. According to the judge, she 

is to remain in the hospital until she is certified fit to be 

remanded in prison custody. 86 

Commenting on the proceedings, the Chairman of the 

EFCC, Farida Waziri said that “this is an indication that we 

are making progress in the war against graft in the country. 

But we can still achieve greater results when all stakeholders 

reinforce their commitment to the crusade.” 87 

This very case shows the level of abuse of plea 

bargaining in the context of its application to corruption cases 

in Nigeria. It shows that plea bargain is an escape route for 

criminals who embezzle public funds. The true situation 

cannot be far from vaccination against punishment since 

culprits are allowed to keep a large portion of their loots. It is 

the view of the present writer that the judgment of Justice 

Dan Abutu in this case is mockery of justice and a shame to 

our criminal justice administration. The attitude of our courts 

to sentencing in corruption cases as a result of plea 

bargaining leaves much to be desired. A pertinent question 

that the present writer wishes to ask here against the 

backdrop of the fact that the judiciary is the last hope for the 

common man is “is the shepherd becoming the wolf?” Much 

is needed in this area of law, especially as it relates to 

86. Ibid. 

87. Ibid. 

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92 


sentencing so that the society does not feel insecure in the 

hands of the judiciary. 

Conclusion/Recommendations 

The introduction of plea bargaining into our criminal justice 

system is, no doubt, revolutionary. We have no doubt that the 

practice of plea bargaining in Nigeria is still very embryonic, 

yet the gains are legion. In as much as plea bargaining is a 

welcome development in this country, it should not be an 

exclusive preserve of the rich. It should be applicable to all 

criminal cases but with great caution when it comes to 

corruption cases. Going by what we have seen in corruption 

cases in Nigeria, we say that the application of plea 

bargaining in this area is very premature and caution should 

be taken, especially with the international name Nigeria has 

gained in the context of corruption. It should be made 

available to all defendants in criminal cases, particularly, first 

offenders, irrespective of class and status. 

Plea bargain is very necessary in this country going by 

the fact that our prisons are overcrowded. It will surely help 

to decongest the prisons. If we do not have plea bargain as an 

option in our criminal justice system, the courts and prisons 

would continue to be so overloaded with cases that nothing 

would ever get done and justice delayed is justice denied. 

Plea bargain is an effective cure for a myriad of problems of 

criminal justice administration. 

Plea bargain should not be practiced in such a manner 

that would serve as escape route to accused persons. It should 

not be done in a manner that would allow an accused person 

to escape justice; rather it should be done in a way that would 

serve its original intent and purpose. 

It is our recommendation that legislation should be put in 

place both at the federal and state levels to adequately 

accommodate plea bargaining. We have earlier noted in the 

course of this work that apart from the EFCC Act (limited




provisions) and the Administration of Criminal Justice Law 

2007 of Lagos State, there is dearth are no legislations to 

provide legal backing for plea bargaining. There is no 

gainsaying that the Lagos Law, even though not as detailed 

and advanced as laws in other jurisdiction where plea 

bargaining is practiced, remains a tour de force while the 

practice by EFCC where judges and EFCC not guided by any 

detailed, extant, local rules resort to all types of practices to 

achieving plea bargaining. What the courts have often done 

in EFCC cases is to informally give effect to plea agreement 

even as one doubts that the court will act on any written plea 

agreement without legislation. In Lagos, it does now appear 

that if any person is being tried by EFCC under the Criminal 

Code, reliance and support for plea bargain could be 

predicated on Section 76 ACJL, 2007. 

Finally, we suggest that some measure of sentencing 

guidelines must be made available for judges so as to ensure 

impartiality in the practice of plea bargaining, especially 

when it comes to the issue of concessions. 88 There should be 

a benchmark that will serve as a guide to judges in sentencing 

accused persons who have pleaded guilty as a result of plea 

bargains. This would ensure that judges do not pronounce 

ridiculous sentences that would make mockery of justice. 

It is also suggested that Nigeria should consider the 

option of penal orders as practiced in West Germany when it 

comes to simple offences. 

88. See R. v. Turner (1970) 2 QB 321 where Lord Parker gave some 

procedure to be adopted. 

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