In every judicial proceeding, it is very important that steps are taken to ensure that rights guaranteed by the constitution are duly protected.
In a criminal trial where the prosecution and the defendant decide to use plea bargaining, the law requires that the plea bargain agreement should be reduced to writing and the law also places additional duties on the shoulders of the judge; all these are safeguards put in place by the law, aimed at ensuring that the defendant is not prejudiced and that his right to fair hearing is not infringed.
The Plea Bargain Agreement must state amongst other things the following:
- that before conclusion of the agreement, the defendant was informed:
- that he has a right to remain silent,
- of the consequences of not remaining silent, and
- that he is not obliged to make any confession or admission that could be used in evidence against him;
- state fully, the terms of the agreement and any admission made by the defendant
- be signed by the prosecutor, the defendant, the legal practitioner representing the defendant and the interpreter, if one was used.
It is after the court has been informed by the prosecution that it has reached a plea bargain agreement with the defendant that the role of the presiding Judge in a trial where plea bargain is used starts. The role of a judge will be enumerated.
- He is to inquire from the defendant to confirm the terms of the plea bargain agreement.
- He is also to ascertain if the defendant pleads guilty to the offence with which he is charged, and if the defendant entered into the plea bargain agreement voluntarily and without undue influence. If he is satisfied that the agreement and the guilty plea made by the defendant was made voluntarily, then he may do either of the following:
- Convict the defendant on his guilty plea, if he is satisfied that the defendant is actually guilty of the offence to which he pleaded guilty, or
- Record a plea of not guilty in favour of the defendant and order that trial proceeds normally if for any reason he is of the opinion that the defendant cannot be convicted of the offence in respect of which the plea bargain agreement was made and to which he has pleaded guilty, or if he is of the opinion that the agreement is in conflict with the defendant’s right to fair hearing.
- After the Judge has convicted the defendant, he shall consider the sentence (punishment) agreed upon by the parties in the plea bargain agreement and may do either of the following:
- Impose the sentence agreed upon by the parties on the defendant if he is satisfied that the punishment is appropriate, or
- Impose a lesser sentence on the defendant if he is of the view that he would have imposed a lesser sentence than that agreed upon,
- Where he is of the view that the offence should attract a heavier punishment than that agreed upon by the parties, inform the defendant of such heavier punishment which he considers appropriate.
When the Judge informs the defendant that he intends to impose a heavier punishment, (that he refuses to give full effect to the agreement reached between the prosecution and the defendant)) the defendant has two options open to him:
- He may decide to abide by his guilty plea, and this shall be without prejudice to his right to present any argument or lead any evidence before the court which could mitigate the punishment which the court intends to impose on him, or
- He could withdraw from the plea agreement and change his guilty plea, in which case his trial shall begin afresh before another Judge.
When a plea bargain agreement is reached between the prosecution and the defendant, a copy of it is to be forwarded to the Attorney- General’s office.
It is true that the Plea Bargain Regime in Nigeria may be abused and misused (Just like in any other jurisdiction), but it is important to bear in mind that the elaborate safeguard put in place by the law is aimed at ensuring that plea bargain is not abused, thus, the power and discretion of the prosecution to enter into a plea bargain agreement is tempered by the consent of the victim, the consultation with the investigating officer and the ultimate decision of the presiding Judge; these reduce abuse and misuse.