First, the data in Appendix A and B gives credence to earlier claims that prosecution and convictions by the EFCC are almost all the time pursued in High courts, with no record to show that any of the cases was heard in a lower court. Hence, the history of the application of plea bargaining is one that currently excludes lower courts, i.e., magistrates’ court. In addition, analysis of the nature of offences and the sentenced awarded (in Appendix A, B, and C), it is evident that about 40 per cent of the sentences were lighter than those which could have been imposed in respect of the original charges. Although the substitutions of charges were not clearly reflected in the document, it is evident from the levels of the final sentence that the defendants were not sentenced for the original charges on the documents. Shedding light on the relative leniency of the final sentences as compared to the original charges, prosecutors admit that they are often as a result of negotiation, substitution, and concession.219 As one prosecutor states, “in cases that involve crimes
relating to fraud, cheating or misappropriation of public fund, which are the most common
219
in our diary, the Commission, after a successful negotiation, substitute(s) the charges with
those that give the room for a shorter sentence.”220
Records from Appendix A and B (EFCC records of conviction) clearly shows the prevalence of charges for the offence of ‘Obtaining Money by False Pretence’, which is an offence defined under Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 (henceforth, AFFA).221 The provision of this section holds that it is a crime for any person by themselves or through accessories to use false pretence to defraud and obtains money or property.222 The punishment as provided in the same section is imprisonment for a term of not less than seven years without the option of a fine. What often happens here is that since the ingredients of this offence cover an array of criminal acts often prosecuted by the Commission; it becomes a convenient and an all-encompassing provision to use in framing charges.223 The reason this charge is frequently used according to prosecutors is because the ingredients of this offence cover the characteristics of many other related offences, like fraud, cheating, cyber scam, using false documents or some form of false representation to obtain money or any valuable item, or using all sorts of tricks to defraud and take money from unsuspecting individuals.224 Remember, said one respondent:
“Whenever a person wants to defraud others, he must either pretend he is someone he is not, or use a false document, make false claims, misrepresent facts or pretend that what is illegitimate is legitimate. So the offence of obtaining money or any valuable under false pretence can easily accommodate the elements (of) many financial crimes.”225
Most importantly, the harsh sentence provided for this offence makes it an obvious way of encouraging the defendant to accept a guilty plea. Prosecutors of the EFCC admit that this provision is commonly used, and defendants often agree to negotiate if the charge will be substituted with one that has a lighter sentence or one that carries an option of fine. Prosecutors226 admit that when parties agree to negotiate, the charge under the AFFA is often substituted with its counterpart under the Criminal Code Act, 2004 (henceforth,
220
Interview No. 22, also in interviews No. 1 and 28. 221 AFFA.
222
ibid, Section 1 (1) and (2). 223
ibid, (3).
224 In interviews No. 1, 12 and 28. 225 Interview No. 22.
226
CCA),227 particularly the section that defines the offence of ‘Obtaining Property by false pretences; Cheating’,228 or the Penal Codes Act, 2004 (henceforth, PCA),229 which define similar offence as ‘Obtaining money or property by false or cheating’.230 Both laws far lesser sentence that the AFFA. The CCA, for instance, carries a prison term of two years while the PCA carries a sentence of fewer than five years with an option of a fine.231
In trying to further analyse the above situations in light of the sentence outcome of a negotiated case and those which went through full trial, , the research took examples from cases No. 7,232 105233 and 110,234 where the charges were for the offence of ‘obtaining money under false pretence’, which is an offence provided under the AFFA. The AFFA was clear that for this kind of offence, the mandatory conviction is a minimum prison term of seven years without the option of a fine. And in all the three cases mentioned above, the accused persons were given sentences as prescribed under the AFFA. However, when one looks at the same charges in cases No. 61235 and 69,236 the defendants were given a proportionally smaller sentence of six months imprisonment. This clearly shows that, despite the original charge under the AFFA, the later defendants (No. 61 and 69) were not sentenced under this law. Instead, their charges were substituted, which allowed the court to give a disproportionately shorter sentence of 6 months for each of the accused. This pattern can be seen throughout the table of cases in both appendices A and B.
The above examples are evidence of the extent of concession enjoyed by those who resort to plea bargaining as against those who go to trial. It, however, raises a significant question regarding discrepancies in sentencing similar offences and raises questions as to how prosecutors compromise on charges in order to obtain guilty pleas. A typical example of this kind of significant compromise is case No. 95, in which the accused was charged with five counts including impersonation, forgery, conspiracy, money laundering and obtaining money by false pretence. Records of conviction for this case shows that the offender was
227
Criminal Code Act, CAP. C38, Laws of the Federation of Nigeria, 2004. 228 ibid, 421.
229
Penal Codes Act, CAP. P3 Law of the Federation of Nigeria, 2004 230 ibid, Section 323. 231 ibid. 232 FHC/KD/64C/2011. 233 K/EFCC/10/2012. 234 FNC/B/66C/2011. 235 K/EFCC/12/2012. 236 FHC/TRST/2C/2012.
given a mere four months’ imprisonment while others convicted of similar combined charges received more than 10 years in jail. Paradoxically, in the case mentioned above, i.e., case No. 105,237 the accused was convicted for only one of the charges here and was sentenced to a 14 years prison term.
Evidence of harsh penalties after trial are also seen throughout the appendixes. In cases No. 12,238 31,239 34240, and 41241 of appendix A, and others in appendix B, common feature can be discerned i.e., these cases were in court for between 4 to six years before conviction, suggesting that they went through full trial, the outcome of which were punitive jail terms for each of the defendants in these case. Beyond the sentences, it also confirms how cases that did not go through plea bargaining can last for years even with the EFCC.
Another important question addressed by this research relates to the few cases where the final sentence shows evidence of plea bargaining, yet they appear to have been in court for a long period. Explaining this paradox, prosecutors suggest that some cases take a longer time to arrive at an agreed settlement because of certain contingencies such as the identification and confiscation of assets, or restoration of victims.242 To arrive at an agreed compensation for victims or the repatriation of public funds concealed in other places, investigations may well continue for a long time while the case is pending in court.243 This situation is evident for example in cases No. 58,244 which began in 2009 and ended in 2013. In this case, the defendant was sentenced to pay restitution of 7.2million Naira. Similarly, case No. 65,245 which began in 2010 until 2013 involved the recovery of a large amount of property. 237 K/EFCC/10/2012. 238 PLD/J/30C/2009. 239 FHC/L/18C/2009. 240 ID/48C/2008. 241 B/EFCC/1C/2006. 242
In interviews No. 1, 9, 22 and 28. 243 Interview No. 28.
244 K/EFCC/08/2009. 245