plea bargaining and the enforcement of the anti

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Plea Bargaining and the Enforcement Of The Anti-

Corruption Laws In Nigeria: A Focus On The Economic

And Financial Crime Commission (EFCC), 2004-2010

Matthias Chukwuma Nwande, PhD.

Department of Public Administration, University of Nigeria, Nsukka, Nigeria

[email protected]

ABSTRACT

The study investigates the link between the adoption and implementation of plea bargain by the EFCC in

the prosecution of economic and financial crimes and the enforcement of the anti-corruption laws in

Nigeria. Using the Marxist theory of the state, one group pre-test post-test research design, qualitative

method of data collection and qualitative descriptive analysis, the study ascertains that the implementation

of plea bargain by the EFCC in the prosecution of Economic and Financial Crimes undermined the

enforcement of anti-corruption laws in Nigeria, between 2004 and 2010. The study argues that corruption

is an integral part of the nature and character of the Nigerian state and that since the existing political

leadership thrives in primitive capital accumulation using the apparatuses of the state, the establishment

of the EFCC is not basically to fight corruption but an attempt to curry the confidence of foreign capital in

their quest for foreign direct investment and debt cancellation. The study transcends the existing analyses

to unveil that the proclivity of the existing political leadership to primitive accumulation of capital

weakens the campaign against corruption and the enforcement of the anti-corruption laws in Nigeria. To

this end, the study contends that instead of undermining the cases and/or decongests the prisons through

the adoption of plea bargain; government should set up special courts to try cases of economic and

financial crimes to make for speedy dispensation of such cases.

Keywords: Plea bargain, Anti-Corruption Laws, Economic and Financial Crime Commission,

Enforcement.

INTRODUCTION

Successive governments in Nigeria have variously attempted to curb the culture of corruption and lack of

public accountability by either introducing a number of programme or sponsoring anti-corruption

campaigns. As aptly articulated by Obianyo (2003), there was the Asset Investigation put in place by

Murtala Mohammed regime aimed at recovering looted public funds and properties as well as the Ethical

Revolution of Shehu Shagari. The military regime of Buhari/Idiagbon introduced the War Against

Indiscipline with the sole objective of moral redirection of the corruption-torn Nigeria. The campaign of

Buhari/Idiagbon against corruption and indiscipline in Nigeria was cut short in August 1985 following the

coup d’etat that oust the duo and ushered in General Ibrahim Babangida.

However, despite the introduction of the National Orientation Movement in 1986, Mass mobilization for

Social Justice in 1987, the War Against Indiscipline and Corruption in 1996, the regimes of General

Ibrahim Banangida (1985-1993) and General Sani Abacha (1993-1998) were so immersed in corruption

to the extent of creating “avenues and/or mechanisms for financial abuse by public officers” (Obianyo,

International Journal of Innovative Development and Policy Studies 9(3):144-162 July-Sept., 2021

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2003). As a result, the moral gains of the previous regimes over corruption and abuse of public offices

appear to have been lost during the regimes of Babangida and Abacha. In effect, corruption and lack of

public accountability, as articulated by Obianyo (2003), were elevated to national ideology as Nigeria

became a haven for money laundry and other forms of economic and financial crimes. The preponderance

of these criminal activities had discouraged numerous potential investors to Nigeria, thus diverting much

needed foreign direct investment for the country’s economic growth (EFCC, n.d). As a direct

consequence of the prevalence of corrupt practices perpetrated by both government and private citizens,

the survey of Corruption Perception Index (CPI) by the Transparency International in 1996 and 1997

ranked Nigeria the most corrupt country out of 54 and 52 countries as surveyed respectively. In 1998,

Nigeria came 81st out of 85 countries surveyed (Transparency International 1996, 1997 and 1998).

What seems to emerge from the foregoing is that prior to the enthronement of constitutional rule in 1999,

corruption was not only common in Nigeria but also used as an instrument of acquiring state power,

wealth and privileges (Ifesinachi, 2003). The report of Vision 2010 lends credence to this. It reveals that

corruption pervades all facets of society including the political realm. It furthermore reports also concedes

that a state of moral bankruptcy, characterized by graft, corruption, dishonesty, indiscipline and injustice

stand in the way of the pursuit of national objective (Report of the vision 2010 Committee, 1997).

This exactly was the scenario when President Obasanjo emerged in 1999. At the outset, Obasanjo did not

hide the readiness of his administration to combat corruption and by so-doing enthrone public

accountability in governance in Nigeria. In his inaugural speech, he emphatically warned that:

Nobody, no matter who and where, will be allowed get away with the breach of

the law or the perpetration of corruption and evil. Under this administration

therefore, all the rules and regulations designed to help honesty and transparency

in dealings with government will be restored and enforced (Sunday Times, May

30, 1991:34).

To demonstrate that he meant business, Obasanjo hardly assumed office when he instituted four different

panels of inquiry – Dr. Christopher Kolade Panel, Justice Chukwudifu Oputa panel, Aljahi Iguda Inuwa

panel and brigadier General Oluwole Rotimi Panel to variously investigate actions, programmes and

policies of past governments since 1979. Therefore, government launched a campaign of national rebirth

with a renewed vigour to wage war against corruption. The first step in this direction was the enactment

of the Corruption Practices and Other Related Offences Act in June, 2000 and the establishment of the

Independent Corrupt Practices and Other Related Offences Commission (ICPC) in September of the same

year. To further strengthen the fight against corruption, the Federal Government, in 2002, enacted the

Economic and Financial Crimes Commission (Establishment) Act. This was repealed and re-enacted in

2004. The EFCC is empowered to coordinate various institutions involved in the fight against corruption

and money laundering. The commission is also bestowed with responsibility of enforcing all laws dealing

with economic and financial crimes (EFCC Act, 2004).

The establishment of the EFCC was seen as demonstration of the determination by the administration of

President Obasanjo to give corruption a good fight (Chuta, 2004). To this effect, not a few Nigerians

applauded its EFCC and expressed hope that those who had brazenly looted the nation’s resources would

be brought to book irrespective of their socio-economic or political standing (Azahan, 2011). The

successes of the Agency in tackling corruption as evidenced in the sanitization of the banking sector

through investigation and prosecution of bank officials and recovery of over five billion dollars bad loan,

prosecution and conviction of top public officials, recovery and return of proceeds of Advance Fee Fraud

(419) (Azahan, 2011), further reinforced people’s confidence in the ability of the EFCC to tackle

corruption in Nigeria.

To effectively execute its functions, the EFCC adopted the legal process of plea bargaining in the

prosecution of financial and economic crimes, defined as agreement; informally but legally, where

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 and accepts to surrender part of the admitted ill-

gotten wealth (Aluba, 2011), the adoption of plea bargaining in the prosecution of financial and economic

Nwande …..Int. J. Innovative Development & Policy Studies 9 (3):144-162, 2021

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crimes in Nigeria has generated mixed reactions with respect to the utility of the legal process in

eradicating corruption in Nigeria.

Against the background of the foregoing, this study investigates the activities of the EFCC in

investigation and prosecution of economic and financial crimes in Nigeria. The adoption of plea bargain

by the Commission in the enforcement of the anti-corruption laws in Nigeria between 2004 and 2010 will

specifically come under detailed analysis.

Statement of the problem

The Economic and Financial Crime Commission (EFCC) is bestowed with the responsibility of

investigating all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal

charge transfers, computer credit card fraud, contact scam and so on (EFCC Act, 2004). To effectively

execute its functions, the EFCC has adopted the legal process of plea bargain in the prosecution of

financial and economic crimes. Also termed plea agreement, negotiated plea or negotiated settlement of

cases, plea bargain is defined as 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 (Aluba, 2001). A number of high profile cases in Nigeria have

been successfully tried and concluded through the adoption of plea bargaining by the EFCC. These cases

include that of the former Governor of Bayelsa State, Alamieyeseigha, former Inspector General of

Police, Tafa Balogun, former Governor of Edo State, Lucky Igbinedion, among others

(http://www.efccnigeria.org, retrieved 29/09/2012). The adoption of plea bargain by the EFCC in the

prosecution of economic and financial crimes in Nigeria has attracted the attention of writers. Akintimoye

(2012) and Kodo (2002) maintained that Nigeria needs plea-bargaining because it is a very powerful tool

for combating corruption and embezzlement of public funds in Nigeria. Odunayo (2012) and Adeleke

(2012) revealed that plea bargaining, given the Nigerian context, would exacerbate crimes, undermine the

integrity of the criminal justice system and above all provide room for unfettered looting of public

treasury at all levels of governance. It was equally argued that, with proper planning and clear policy, plea

bargain could assist ensuring the disposal of criminal cases and ensuring conviction or accountability in

cases that could easily be lost or mired in delay or attrition (Odinkaly, 2012; 2010 and Babalola, 2012). It

was also argued that for plea bargaining to be effective in Nigeria, there should be a legislation that create

a legal framework to ensure that anyone appointed to prosecute a particular case must have the technical

knowledge of every element of the offence, a sound understanding of the likely evidence to be adduced,

and reasonable understanding of the law interest of the state (Odia, 2011 and Adedeji, 2012).

Generally, writers on the utilization of plea bargain by the EFCC in the fight against corruption in Nigeria

harped on the need either to incorporate plea bargain into the country’s lengthy trials, disposing of

criminal cases, getting defendants to admit to crimes and still receiving punishment, and decongesting the

prisons or to discard it because it would escalate the abuse of the fundamental human rights of the

suspects, exacerbate crimes and provide room for unfettered looting of public treasury at all levels of

governance. Altogether, these explanations hardly illuminate the understanding of the consequences of

the implementation of plea bargain by the EFCC in the prosecution of economic and financial crimes for

the enforcement of the anti-corruption laws in Nigeria, between 2004 and 2010. More fundamentally,

these explanations fail to bring out in bold relief that non-enforcement of anti-corruption laws in Nigeria

by the EFCC arising from the adoption of plea bargain undermined both the distributive and corrective

ingredients of justice with corresponding severe consequences to criminal justice system and social

justice in Nigeria. This study attempts a systematic analysis of this shortcoming.

Theoretical Framework We anchored our analysis on the Marxist theory of the state. The theory, as aptly articulated by Okolie

(2006), emerged as a counter to the basic proposition of the western liberal theory which upholds that the

state is an independent force as well as an impartial arbiter that regulates socio-economic transactions and

processes of the society on the basis of equity. In opposing this viewpoint, Marxist theorists maintained

rather that the state is the product and a manifestation of the irreconcilability of class antagonisms (Lenin,


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1984). What this suggests is that the state which emerged as a result of class contradictions is, by

implication, the state of the politically and economically dominant class which they deploy at will to hold

down and exploit the oppressed (Jakutowski, 1973).

The classical Marxist theory of the state has been further developed and used to explain the peculiarity

and dynamics of the neo-colonial state by scholars such as Alavi (1973), Ekekwe (1985). Ake (1985) and

Ibeanu (1998) and others. The central argument of these scholars is that the post-colonial states has

essentially followed a developmental strategy dictated by the interest of imperialism and its local allies

rather than that of the majority of the indigenous population simply because it is a creature of

imperialism. This is exactly what Ekekwe (1985) meant when he contended that the post-colonial state

rests on the foundation of the colonial state whose major pre-occupation was to create conditions under

which accumulation of capital by the foreign bourgeoisie is alliance with the ruling elite would take place

through the exploitation of local human and other natural resources. Therefore, the post-colonial state that

now emerged, though ostensibly independent and sovereign, was no less a creation of imperialism than

colonial state.

For Ake (1985), the post-colonial state is peculiar due to its limited autonomy. This means that the state is

institutionally constituted in such a way that it enjoys limited independence from the social classes,

particularly the hegemonic social class, and so, is immersed in the class struggles that go on in the

society. The post-colonial state is also constituted in such a way that it reflects and mainly carters for a

narrow range of interests, and that is the interests of the rapacious political elite in comprador and

subordinate relationship with foreign capital. This lack of relative autonomy explains why the post-

colonial state in Nigeria is incapable of mediating and moderating political conflicts (Ake, 1985).

In his own contribution, Ibeanu (1998) maintained that the colonial state emerged during the extensive

growth of capital as an instrument of capital accumulation, and as such, did not strive for legitimacy as

the reason for its emergency was essentially to serve as an instrument for “conquering and holding down

the peoples of the colonies, seen not as equal commodity bearers in integrated national markets, but as

occasional petty commodity producers…” (Ibeanu, 1998:9). Due to this ugly scenario, no effort was made

to either evolve or institutionalize principles for the non-arbitrary use of the colonial state by the colonial

political class. As to be expected, when the pseudo capitalist class fervently seeking to become

economically dominant inherited the state in the post-colonial era, it becomes, for them, a powerful

instrument for amassing private wealth and pursing private welfare, to this end, Ibeanu averred that the

peculiar features of the post-colonial state in Nigeria have undermined the democratization of politics

because instructions that decimate democracy are genealogically inscribed in it.

The theory, therefore, suggests that corruption is an integral part of the nature and character of the

Nigerian state and the corresponding structure of primitive capital accumulation necessary for the survival

of political leadership. Thus, effort at combating corruption, as evidenced in the establishment of the

EFCC, by the same political leadership that thrives in primitive capital accumulation can be understood in

this light.

Application of the theory

The relationship between the implementation of plea bargain by the EFCC in the prosecution of economic

and financial crimes and the ineffective enforcement of anti-corruption law in Nigeria, between 2004 and

2010 is explained in the light of the Marxist theory of the state.

Due to the logic of the genealogy and dialectics of global movement of capital, corruption, as articulated

by Ifesinachi (2003), has become an integral part of the structure of primitive capital accumulation

necessary for the survival of the state in Africa in general and Nigeria in particular. Thus, as result of a

multitude of hostile forces unleashed by exploitative and authoritarian tendencies of the existing political

leadership, those in power are pre-occupied with the strategies on how to perpetuate their stay in power,

and as such, would not tackle corruption. To this end, Ifesinachi (2003:34) further reveals that “since the

politics of a society always strive to conserve existing wealth, power and privileges relations and their

extended reproduction, endemic corruption is institutionalized in countries like Nigeria that rely on

primitive capital accumulation”. The efforts at combating corruption by the political leadership as seen in


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the establishment of the EFCC, ICPC, Code of Conduct Bureau, among others is more of a token gesture

geared towards currying the confidence of foreign capital on which its survival depends than a sincere

effort to restore credibility and public accountability in governance.

In this light, available evidence show that the implementation of plea bargain by the EFCC in the

prosecution of economic and financial crimes blatantly negated the enforcement of anti-corruption laws in

Nigeria, between 2004 and 2010. In the prosecution of the retired Inspector General of Police, Mr. Tafa

Balogun who was arraigned by the EFCC on a 50-15 (1) (a) and punishable under section 14 (c) of

Money laundering Act, 2004 and Section 289 of the Penal Code Cap 532 laws of the federation of

Nigeria, 1990. The former police boss opted for a plea bargain and had the 50- count charge reduced to

eight- and in return, Tafa Balogun accepted to refund N500m, forfeit money, stocks, and property worth

N17 billion and plead guilty to the amended eight- count charge. He was sentenced to six months

imprisonment, after he had pleaded guilty to a mitigated eight-count charge of refusal to cooperate with

the Economic and Financial Crimes Commission (EFCC) when he was under probe for money laundering

offences (http://www.efccnigeria.or, retrieved 29/09/2012).

The same situation is seen in the prosecution of D.S.P Alamieyesiegha, former Governor of Bayelsa State

was arrested by the EFCC on 33-count charge all bordering on money laundering, corruption and

embezzlement of public funds in violation of section 14 (1)(a) and punishable under section 14 (c) of

Money laundering Act, 2004. He opted for plea bargain and had the 33-count charge reduced to six- and

in return, Alamieyesiegha forfeited four properties, £2.29m, N1 Billion worth of shares in a commercial

bank, N105milion and $160,000, pleaded guilty to the amended six- count charge, and received two years

imprisonment. Each of the six charges that Alamieyesiegah was found guilty of carries two years

imprisonment. They were, however to run concurrently from December 9, 2005 when he was arrested

(http://www.efccnigeria.org, retrieved 29/09/2012).

Similarly, in 2008, the former governor of Edo State, Chief Lucky Nosakhare Igbinedion was arraigned

by the Economic and Financial Crimes Commission (EFCC) on a 191-count charge of corruption, money

laundering and embezzlement of N2.9b in violation of section 14 (1) (a) and punishable under section 14

(c) of Money laundering, Act, 2004. In a plea bargain arrangement, the EFCC accepted to reduce the 191-

count charge to one-count charge bordering on neglected to make a declaration of his interest in account

No. 41240113983110 with GTB in the declaration of assets form of the EFCC in violation of section 27

(3) of the EFCC Act 2004. In return, Lucky Igbinedion would refund N500m, 3 properties and plead

guilty to the one-count charge. In line with the plea bargain, Lucky Igbinedion pleaded guilty to the one-

count charge, accepted to refund N500m, forfeit 3 houses, and thereafter received 6months imprisonment

or pay N3.6m as option of fine (http://www.efccnigeria.org, retrieved 29/09/2012).

Moreso, in 2010, the former Chief Executive Officer and Managing Director of Oceanic Bank Plc, Mrs.

Cecilia Ibru was prosecuted by the Economic and Financial Crimes Commission (EFCC) on a 25-count

charge mismanagement of depositors’ funds and money laundering in violation of section 14 (1) (a) and

punishable under section 14 (c) of Money laundering Act, 2004 and section 17 (1) of the 1991 Banks and

Other Financial Institutions Decree. In a plea bargain arrangement, the EFCC accepted and reduced the

25-count charge to three (counts 14, 17 and 23). In return, Mrs. Cecilia Ibru forfeited properties and assets

valued at N191 billion, plead guilty to the amended three-count charge, and thereafter was handed by

Justice Dan Abutu of the Federal High Court in Lagos 6months jail in each of the charges. But the terms

of imprisonment would run concurrently, meaning that she would spend six months in Ikoyi Prison

(http://www.efccnigeria.or, retrieved 29/09/2012).

The non-enforcement of the extant anti-corruption laws in Nigeria by the EFCC, as demonstrated above,

means that justice, realized through the enforcement of the positive law (Singh cited in Johari, 1987), was

undermined. Law functions as an instrument of justice (Singh cited in Johari, 19871), and so, when the

enforcement of positive law is undermined, justice is equally undermined. Justice is either distributive or

corrective or both. Justice is distributive because it entails equal distribution of favour and losses (reward

and punishments). It is corrective because it entails remedying a wrong act or suppressing mischief

(Aristotle cited in Johari, 1987). And as aptly argued by Rawl (cited in Gauba, 2003), departure from


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equal distribution of favour and losses can be justified only when it could be proved to bring greatest

benefit to least advantage because the sufferings of the distressed cannot be compensated by enhancing

the joys of the prosperous.

The implementation of plea bargain by the EFCC in the prosecution of economic and financial crimes and

non-enforcement of anti-corruption laws, economic and financial crimes are deepened and extenuated as

incentives are created for public servants to loot public treasury with the intension of using part of their

loot to secure their freedom. Second, as there are no legislations to adequately accommodate plea,

government, instead of establishing the guilt and sentencing the defendant through an impartial process

with a complete investigation, evade the rigorous standards of due process and proof to bargaining with

the offender and awarding of unreasonable and arbitrary sentences which undermine the integrity of the

criminal justice system.

All these put together clearly indicate that the implementation of plea bargain by the EFCC in the

prosecution of economic and financial crimes undermined the enforcement of the anti-corruption laws in

Nigeria, between 2004 and 2010. The establishment of EFCC by the existing political leadership that

thrives in primitive capital accumulation is not necessary to fight corruption but an attempt to curry the

confidence of foreign capital in their quest for foreign direct investment and debt cancellation. Thus, the

link between the implementation of plea bargain by the EFCC in the prosecution of economic and

financial crimes and non-enforcement of the anti-corruption laws in Nigeria, between 2004 and 2010 is

explained in the light of the Marxist theory of the state.

RESEARCH METHODS

Method of Data Collection

To generate the relevant data for this work, we used qualitative method. As a method of data collection,

qualitative method is used to obtain in-depth information and concept clarification so as to facilitate

instrument designs (Biereenu-Nnabugwu, 2006). We adopted qualitative method because it is useful when

the task is to glean, illuminate, interpret and extract valuable information to draw inference from the

available evidence so as to reach a conclusion. Qualitative method is well-suited for contextual analysis

because it is able to gain access to organizational structure, bureaucratic processes.

In this study, we adopted One Group Pre-test Design. In this type of design, a single group is compared

with itself. A researcher using One Group Pre-test Post-test Design takes a measurement ‘before’ and

‘after’ the occurrence of an independent variable or casual event. The difference between the first (before)

and second (after) observations is attributed to the independent variable. In further applying one group

pre-post-test design to our study, the test of hypothesis involves observing the independent variable

(implementation of plea bargaining by the EFCC in the prosecution of economic and financial crimes),

and dependent variable (enforcement of anti-corruption laws in Nigeria, between 2004 and 2010)

simultaneously and in retrospect because the effects of the independent variable on the dependent variable

had already taken place before the study. Hence, a randomized judgmental selection and observation of

the enforcement of anti-corruption laws in Nigeria, between 2004 and 2010 “before” and “after” the

implementation of plea bargaining by the EFCC in the prosecution of economic and financial crimes was

used to test our hypothesis. In conducting our investigation, therefore, our first observation is on the

enforcement of plea of anti-corruption laws in Nigeria, between 1999 and 2003 before the implementation

of plea bargaining by the EFCC in the prosecution of economic and financial crimes beginning in 2004.

Our second observation is the enforcement of anti-corruption laws in Nigeria between 2005 and 2010. It

was observed that the implementation of plea bargaining by the EFCC in the prosecution of economic and

financial crimes undermine the enforcement of anti-corruption laws in Nigeria.

We analyzed the mass of qualitative data generated in the course of this study using qualitative

descriptive analysis. As articulated by Asika (2006), qualitative descriptive analysis means summarizing

the information generated in the course of research verbally. Qualitative descriptive method is a dynamic

form of analysis of verbal and visual data that is oriented toward summarizing the informational contents

of that data (Morgan, 1993). Qualitative descriptive analysis moves farther into the domain of


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interpretation because effort is made to understand not only the manifest but also the latent content of data

with a view to discovering patterns or regularities in the data (Sandelowski, 2000). Tables were also used

for further illumination and clarification of issues under discussion

Background to the Nature and Character of the Nigerian State and Anti-Corruption Policies

The Nigerian state emerged as a result of colonial intrusion particularly at the stage of extensive growth

of capital (Ibeanu, 1998). The British penetration and the resultant unification of then independent

political units into one administrative entity through conquest and pacification were essentially borne out

of the need to extract raw materials and to locate markets for British finished products. The forceful

intrusion of foreign capital into the Nigeria’ economy through the “imperialism of foreign trade, and the

monetization” (Ifesinachi, 2006: 124) disarticulated and relegated Nigeria’s economy in the international

division of labour. The sojourn of foreign capital equally incubated market imperfections, rent-seeking

behaviour, prebendal politics, compradorial external relations, an interventionist state, among other (Ake,

1981). The arbitrary deployment of state power for capital accumulation without responsibility foisted a

corruption reinforcing structure of socio-economic relations on the Nigerian state.

The post-colonial state of Nigeria appears to manifest the contradictions of the peripheral capitalist state

due to the structural link between the fractions of political leadership and foreign capital established,

before the juridical independence of 1960, through the export of raw materials and import of

manufactures. This foreordained the emergence of an indigenous political leadership on the wheels of

primitive accumulation of capital (Ifesinachi, 2006). The point being made is that the pattern of

integrating the pre-capitalist Nigeria economy into the mainstream western capitalism, the dominance and

rule of foreign capital and the pattern of capital accumulation arising therefrom are factors that render

Nigeria’s economy susceptible to external control. The dialectics of global movement of capital, as

articulated by Ifesinachi (2003), has become an integral part of the structure of primitive capital

accumulation necessary for the survival of the state in Africa in general and Nigeria in particular. The

penetration and dominance of foreign capital, rooted in the unscrupulous search and accumulation of

profit, negate, in the post-colonial Nigerian state, the system of public accountability and transparency

and enthrone corruption not only as an integral part of the nature and character of the Nigerian state but

also as a strategy of primitive capital accumulation necessary for the survival of the political leadership.

Thus, even when confronted with a multitude of hostile forces and widespread dissatisfaction occasioned

by exploitative and authoritarian tendencies of the existing political leadership, those in power, instead of

tackling corruption, are rather pre-occupied with the strategies on how to perpetuate their stay in power.

To this end, Ifesinachi (2003: 34) notes that “since the politics of a society always strives to conserve

existing wealth, power and privileges relations and their extended reproduction, endemic corruption is

institutionalized in countries like Nigeria that rely on primitive capital accumulation”.

The efforts at combating corruption by the existing political leadership as seen in the establishment of the

EFCC and ICPC as well as the re-introduction of the Civil Service Rules, Financial instructions, the Open

Tender System, among others are more of a token gesture geared towards currying the confidence of

foreign capital on which its survival depends than a sincere effort to restore credibility and public

accountability in governance. The reliance on the introduction of new laws and/or administrative

tightening up by the Nigerian government in the fight against corruption in Nigeria is sterile and

unrewarding. This is so because these mechanisms are not new in Nigeria. The extant laws in Nigeria

such as the Criminal Code and Penal Code, Money Laundering Acts 1995 and 2003, Advance Fee Fraud

and Other Related Offences Act 1995, Failed Banks (Recovery of Debt and Financial Mal-Practices in

Banks) Act, Banks and other Financial Institution Act 1991, Miscellaneous Offences Act are quite

comprehensive on the issue of financial and economic crimes and the commensurate penalties. As if these

laws were not enough, a number of commissions of inquiry, tribunals and panels were also set up in the

past to deal with the issue of financial and economic crimes, all to no avail. This clearly demonstrates that

the major issue in the fight against corruption in Nigeria is not inadequate anti-corruption laws, but lack

of political will to enforce the existing anti-corruption laws. The EFCC that is to serve as the co-


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coordinating agency for the enforcement of the provisions of a number of anti-corruption laws in Nigeria

is rendered ineffective because the political leadership which purports to fight corruption, using EFCC,

thrives in primitive capital accumulation. Hence, the drag net of the EFCC, as has been aptly described, is

too weak to catch the strong and too strong to catch the weak. This is so because some alleged corrupt

cases involving high profile individuals have not been investigated by the EFCC. The few cases the

Commission was able to prosecute, those convicted entered into negotiated settlement (plea bargain) with

the Commission thereby undermining the enforcement of the provisions of the anti-corruption laws,

which essentially is the raison d’être of the Commission.

Prosecution of Economic and Financial Crimes and the Enforcement of the Anti-Corruption Laws

in Nigeria, 1999-2003 The escalating incidence of corruption and lack of public accountability in Nigeria are quite evident. The

report of the Political bureau of 1988, for instance, states that the struggle for the control of the centre is

extremely vicious and combative, and as such elections were rigged in the most blatant fashion; census

figures manipulated to give political advantage to the competing regions; violence, corruption and arson

employed in the morbid desire to win and retain power (cited in Ifesinachi, 2003). Similarly, Nigeria’s

low ranking by the Transparency International (TI) in its Corruption Perception Index (CPI equally lend

credence to the increasing incidence of corruption and lack of public accountability in Nigeria. For

example, Nigeria was in 1997 rated the most corrupt country in the world out of 52 countries surveyed by

the TI. In 1998, Nigeria was rated 81st out of 85 countries surveyed (Transparency International, 1997 and

1998). As a result of the escalating incidence of corruption and lack of public accountability in Nigeria, a

number of anti-corruption laws were put in place by the government, between 1960 and 2003 to curb the

menace of corruption in Nigeria. Such measures, according to Akanbi (2003) include the Panel Code

(applicable in the North) and the Criminal Code (applicable in the South). Others include such legislations

as-

1. The Public Officers (Investigation of Assets) Decree No. 5 of 1966.

2. The Corrupt Practices Degree of 1975 under which past public office holders were tried for abuse

of office by a three-man panel headed by Dr. Adegbite that investigated and examined their

assets.

3. The 1979 Constitution which provides for a Code of Conduct for public officers, a code of

Conduct Bureau for the enforcement of such prescribed behaviour and a Code of Conduct

Tribunal.

4. Ethical Revolution initiated by the Shagari Administration. In executing this, a minister of cabinet

rank was put in charge of National guidance to address the state of corruption in Nigeria.

5. War Against indiscipline launched by the Buhari and Idiagbon regime. Fraudulent and corrupt

people were brought to book under this framework.

6. A National Committee on Corruption and other Economic crimes in Nigeria drafted the

Corruption Practices and Economic Crimes Decree in 1990. This draft degree provided for a wide

scope of economic crimes, wide range of public officers who must declare their assets and an

independent commission against corruption.

7. The Indiscipline Corrupt Practices and Economic Crime (Prohibition) Decree of 1994, the Failed

Bank Decree and Tribunal as well as the Advance Fee Fraud and other Related Offences Act

Decree of 1995, the Money Laundering Acts of 1995, the Advance Fee Fraud and Other Related

Offences Act 1995 (Akanbi, 2003: 57-58).

8. Other include Money Laundering Prohibition Act of 2003, Miscellaneous Offences Act of 1984,

among others.

Aside the above-enumerated measures, there were a number of probe panels and commissions set up to

investigate alleged cases of corruption in Nigeria Ikejiani (2001:145) identified these panels/commissions

to include:

1. The Forster-Sutton panel in Eastern Nigeria (1956)

2. Coker Commission of Inquiry in Western Nigeria (1962)


152

3. Joda Commission of Inquiry in Northern Nigeria (1967)

4. Assets Investigation Panel of (1975-1976) under Murtala this panel revealed that ten out of

twelve governors under Gowon’s regime (1966-1975) vastly enriched themselves through

corruption, graft and fraud.

5. The probes into FESTAC 77 Leyland Bus and Cement importation (Armada) scandals that found

Ciroma, Akinloye and others guilty.

6. Panels set up by Buhari to investigate the Shagari Administration.

7. Panels set up by Babangida to investigate Buhari Administration

8. Panels set up by Abacha to investigate the Babangida Administration

Table 2: Provisions of Selected Anti-Corruption laws on Economic and Financial Crimes and their

Penalties S/N Sections Provisions of the Sections Penalties

1 Criminal Code

Act of the

Federation of

Nigeria 1990

98A (1) Any person who-Official corruption: person giving bribes, etc., on account of action

of public Official.

(a) corruptly gives, confers or procures any property or benefit of any kind to, on or for

a public official or to, on or for any other person; or

(b) corruptly promises or offers to give or confer or to procure or attempt to procure

any property or benefit of any kind to, or for a public official or to, on or for any other person, on account of any such act, omission, favour or disfavor on the part of the

public official as is mentioned in section 98(1)(i) or (ii), is guilty of the felony of

official corruption.

Imprisonment for seven years. The court

may, in addition to or in lieu of any penalty

which may be imposed, order the forfeiture

to the state of any property which has

passed in connection with the commission

of the offence or if such property cannot be forfeited or cannot be found of such sum as

the court shall assess as the value of such

property

98B (1) Any person who-

(a) corruptly asks for, receives or obtains any property or benefit of any kind for

himself or any other person or (b) corruptly agrees or attempts to receive or obtain any property or benefit of any kind

for himself or any other person, on account of (i) anything already done or omitted, or

any favour or disfavor already shown to any person, by a public official (as defined in section 98D) in the discharge of his official duties or in relation to any matter

connected with the functions, affairs or business of a Government department, public

body or other organization or institution in which the public official is serving as such; or (ii)anything to be afterwards done or omitted, or any favour or disfavor to be

afterwards shown to any person, by a public official in the discharge of his official

duties or in relation to any such matter as aforesaid, in guilty of the felony of official corruption

Imprisonment for seven years. (The court

may, in addition to or in lieu of any penalty

which may be imposed, order the forfeiture to the state of any property which has

passed in connection with the commission

of the offence or if such property cannot be forfeited or cannot be found or such sum as

the court shall assess as the value of such

peroperty)`

2 Miscellaneous

Offences Act of 1984

Section

2

Any person who—

(a) fraudulently or knowingly utters, forges, procures, alters, accepts or presents to another person any cheque, promissory note or other negotiable instrument knowing it

to be false, forged, stolen or unlawfully procured; or

(b) knowingly and by means of any false representation or with intent to defraud the Federal Government, the Government of any State or any local government, causes the

delivery or payment to himself or any other person of any property or money by virtue

of any forged or false cheque, promissory note or other negotiable instrument whether in Nigeria or elsewhere; or

(c) makes or utters any forged document, cheque promissory note or other negotiable

instrument, knowing it to be false or with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere to the prejudice of any person or with

intent that any person may, in the belief that it is genuine, be induced to do or refrain

from doing any act or thing, whether in Nigeria or elsewhere, shall be guilty of an offence and liable on conviction

Imprisonment for a term not exceeding 21

years without the option of a fine

3 Advance Fee

Fraud and Other Fraud

Related

Offences Decree No. 13

of 1995

Section

7

A person who conducts or attempts a financial transaction which in fact involves the

proceeds of a specified unlawful activity (a) with the intent to promote the carrying on of a specified unlawful activity; or

(b) where the transaction is designed in whole or in part

(i) to conceal or disguise nature, location, the source, the ownership, or the control of the proceeds of a specified unlawful activity or

(ii) to avoid a lawful transaction under Nigeria law, is guilty of an office under

this Act and is liable on conviction.

Fine of N500, 00 or twice the value of the

monetary instrument or funds involved in the transportation, or imprisonment of a

term of not less than 10(ten) years or both

fine and imprisonment.

Sources: Advance Fee Fraud and Other Fraud Related Offences Decree No. 13 of 1995, http://www.nigeria-

law.org/legislation/LFN/LFNmainpage.htm, retrieved 03/01/13; Miscellaneous Offences Act of 1984,

http://www.nigeria-law.org/legislation/LFN/LFNmainpage.htm, retrieved 03/01/13; Criminal Code Act of the

Federation of Nigeria 1990, http://www.nigeria-law.org/legislation/LFN/LFNmainpage.htm, retrieved 03/01/13.


http://www.nigeria-law.org/legislation/LFN/LFNmainpage.htm




153

The provisions of the above-enumerated legislations are, to some extent, very clear on what constitute

economic and financial crimes and the punishment(s) that await anyone or group of persons convicted of

such crimes. In table 2 below, we articulate clearly the provisions of selected anti-corruption laws and

their penalties. At this juncture, let us cite a few criminal cases prosecuted in Nigeria prior to the

establishment of the EFCC with a view to highlighting the enforcement of anti-corruption then. In the

High Court of Cross River State, Calabar on the 25th day of 1998, Mfon Bassey Udoeka was charged in

three counts with the offences of (1) forgery, contrary to section 467 of the Criminal Code, that is, he

forged a Mercantile Bank Cheque No. A918968 of the College Technology, Calabar, for N15, 209.00

purporting it to have been signed by the authorized officials of the College of technology, (2) uttering,

contrary to section 468 of the Criminal Code in the knowing the cheque No. A918968 for N15, 209.00 to

have been forged fraudulently presented it to a cashier in the Mercantile Bank, Calabar for payment on

the 25th day of April, 1990, (3) stealing, contrary to section 390(9) of the Criminal Code in that on the

same the 25th day of April, he stole the N15,209.00 which he took from the Mercantile Bank, Calabar

with the forged cheque No. A918968 for that amount.

On the whole, the accused was found guilty in count 2 and count 3 of the information. He was then

sentenced to two years imprisonment in each of the count without option of fine. The sentences were to

run concurrently (Law Reports of Courts of Nigeria, Vol. 2, December, 2002). Again, Oreoluwa Sylvester

Adedeji Onakoya, while being a director of Savannah Bank of Nigeria Plc, in Lagos between 20th May,

1996 and 28th May, 1996 did commit a felony to wit, approved the granting and granted credit facility of

N14m (Fourteen Million Naira) to one Alhaji Gamjimi Ibrahim, a customer of the Maiduguri Branch of

the Savannah Bank Plc, without lawful authority and in violation of lending rules and regulations in force

at the time in Savannah Bank of Nigeria Plc. During his trial, the failed bank Tribunal held that he

committed an offence contrary to section 19(1) (a) & (c) of the failed Banks Recovery of Debts and

financial Malpractices in Bank Decree No. 18 of 1994 as amended and punishable under section 20(1) (a)

the same decree.

In a considered judgment delivered on the 2nd day of February, 1999, the learned trial judge after a review

of both oral and documentary evidence before the Tribunal found the accused guilty and convicted him as

charged. He was sentenced to three months imprisonment. Aggrieved by the decision of the Tribunal, the

accused appealed to the Court of Appeal holden at Lagos. In a unanimous judgment delivered on the 11th

day of July, 2000, the appeal was dismissed (Law Report of Courts of Nigeria, Vol. 102 October, 2002).

We proceed to present the two cases cited above in tabular form so as to clearly highlight the enforcement

of the anti-corruption laws in Nigeria before the enactment of the EFCC Act and the subsequent

establishment of the Economic and Financial Crimes Commission (EFCC) in 2004. Table 3: Enforcement of the Anti-Corruption Laws in Nigeria before the establishment of the EFCC

S/N Offender Offence Penalty Sentence

1 Mfon Bassey

Udoeka

(a) uttering, contrary to section 468 of

the Criminal Code Act, 1990

Not more than three years (see sections

467 & 468 of the Criminal Code Act,

1990

Two years imprisonment without

option of fine

(b) stealing, contrary to section 390 of

the Criminal Code Act, 1990

Not more than three years (see section

390) of the Criminal Code Act, 1990

Two years imprisonment without

option of fine

2 Oreoluwa Sylvester

Adedeji Onakoya- a director of

Savannah Bank of

Nigeria Plc.

Approval and granting of credit

facility of N14m to a customer without lawful authority and in

violation of lending rules and

regulations in force at the time in Savannah bank of Nigeria Plc contrary

to 18(1) (b) of Banks and Other

Financial Institutions Act, 1991

Three months imprisonment (see section

18(2)) of Banks and Other Financial Institution Act, 1991

Three months imprisonment by the

Failed Bank Tribunal on 2nd February, 1999. Aggrieved by the decision of the

Tribunal, the accused appealed to the

Court of Appeal holden at Lagos. In a unanimous judgment delivered on the

11th July, 2000, the appeal was

dismissed the Court of Appeal

Source: compiled by the writer

In table 3 above, it is quite glaring that the punishments (sentence) for the two cases of financial and

economic crimes were quite consistent with the provisions of the anti-corruption laws. In the case of

Mfon Bassey, he was sentenced to two rather than three years as contained in the Criminal Code Act


154

because the court considered that he was offender. This, however, could not apply in Oreoluwa Sylvester case

because the penalty for the offence he was convicted of as provided by anti-corruption law is precise. In the

next sub-sections, we examine the implementation of plea bargain by the EFCC and its impact on the

enforcement of anti-corruption laws in Nigeria.

The Economic and Financial Crimes Commission (EFCC) and the Adoption of Plea Bargain in Nigeria

Prior to the enthronement of constitutional rule in 1999, the level of corruption in Nigeria, as noted by

President Obasanjo, was such that more than half of funds budgeted for development projects, found their way

into private pockets (FGN, 2000). To effectively tackle the escalating incidence of corruption in Nigeria, a

campaign of National rebirth, supported by an Anti-Corruption Commission to implement the Anti-Corruption

Act was launched by President Obasanjo within the first three years in office. Furthermore, government re-

introduced measures such as Civil service Rules, Financial Instructions as well as the Open Tender System, all

in a bid to reinforce the crusade against corruption and lack of public accountability. Government further

enacted the Corrupt Practices and Other Related Offences Act in June 2000 and subsequently established the

same year. The creation of ICPC marked a turning point in the prosecution of the anti-corruption way in

Nigeria. To further strengthen the campaign against corruption, the Federal Government, in 2004, enacted the

Economic and Financial Crime Commission (Establishment) Act. The Act established the Economic and

Financial Crimes Commission (EFCC). The EFCC is entrusted with a wide range of powers to tackle all forms

of economic and financial crimes. As clearly stated in the section 6 of the EFCC Act, the Commission is

charged with the responsibilities, inter alia-

a. The enforcement and the administration of the provision of the Act which established it.

b. The investigation of all financial crimes including advance Fee Fraud, money scam and so on

c. The co-ordination and enforcement of all economic and financial crimes laws and enforcement

functions conferred on any other person or authority.

d. The adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist

activities, economic and financial crime related offences or the properties of value of which

correspond to such proceeds.

e. The adoption of measures which include co-ordinated, preventive and regulatory actions, introduction

and maintenance of investigative and control techniques on the prevention of economic and financial

related crimes.

f. The examination and investigation of all reported cases of economic and financial crimes with a view

to identifying individuals, corporate bodies or groups involved.

g. The co-ordination of all existing, economic and financial crimes investigating units in Nigeria.

h. Maintaining a liaison with the office of the Attorney General of the Federation, the Nigeria Customs

Service, the Immigration and Prison Services Board, the Central Bank of Nigeria, the Nigeria Deposit

Insurance Corporation, the National Drug Law Enforcement Agency, all government security and law

enforcement agencies and such other financial supervisory institution involved in the eradication of

economic and financial crimes.

In addition to the powers conferred to the EFCC, the Commission, based on section 7(2) of the EFCC Act, is

to serve as the co-coordinating agency for the enforcement of the provisions of the following acts-

i. The Money Laundering Acts 2003, as amended

ii. The Advance Fee Fraud and Other Related Offences Act 1995, as amended.

iii. The Failed Banks (Recovery of Debt and Financial Mal-Practices in Banks) Act.

iv. The Banks and other Financial Institution Act 1991

v. Miscellaneous Offences Act and

vi. Any other law or regulation relating to economic and financial crimes, including the Criminal Code

and Panel Code.

The EFCC, based on the wide range of powers it welds, is expected to pay a decisive role in the fight against

corruption in Nigeria, particularly as regards investigating cases of economic and financial crimes, and

enforcing the extant anti-corruption laws. The provisions of the above-stated legislations are, to some

extent, very clear on what constitute economic and financial crimes and the punishment(s) that await

anyone or group of persons convicted of such crimes. In table 4 below, we articulate clearly a number of


155

provisions of the foregoing anti-corruption laws on economic and financial crimes (as amended) and their

penalties.

Table 4: Provisions of Selected Anti- Corruption laws on Economic and Financial Crimes (as

amended) and their Penalties Anti-Corruption Laws Offences Penalties

Economic and Financial Crime Commission

(Establishment) Act, 2004

Section 13 requires that personnel working in banks and other financial institutions must neither fail nor neglect to secure compliance

with the provisions of the Act. Failure or neglect to comply with the

provisions of Section 13, as articulated in section 14, constitute an offence

Imprisonment for a term not exceeding 5 years or a fine of five hundred thousand naira (N500,000) or both imprisonment and fine.

Section 16, 17 and 18 apply to persons who knowingly acquire and/or

retain control of the proceeds of a criminal conduct

Imprisonment for a term not less than two years and not exceeding

three years

20-(1) A person convicted of an offence under this Act shall forfeit

to the Federal Government (a) all the assets and properties which may or are subject of an interim order of the Court after an

attachment by the Commission as specified in section 26 of this

Act(b) any of the person’s property or instrumentalities used in any

manner to commit or to facilitate the commission of such offence of

already disclosed in the Declaration of Assets Form

Money Laundering

Prohibition Act, 2004

Section 14 sub-section 1 applies to any person who-converts or

transfers resources or property derived directly or indirectly from illicit

traffic in narcotic drugs or any illegal act, with the aim of either concealing or disguising the illicit origin of the resources or property,

or aiding any person involved in the illicit traffic in narcotic drugs:

psychotropic substances or any other crime or illegal act to evade the legal consequences of his action, collaborates in concealing of

disguising the genuine nature, origin, location, disposition, movement

or ownership of the resources, property Commits an offence under this section

Imprisonment for a term of not less than

2years or more than 3 years

Advance Fee Fraud and

Other Fraud Related

Offences Act, 2006

Section 1 sub-section 1 and 2 apply to any person who by any false

pretence, and with intent to defraud obtains, from any other person, in

Nigeria or any other country for himself or any other person; or induces any other person, in Nigeria or in any other country, to deliver

to any person; or obtains any property, whether or not the property is

obtained or its delivery is induced through medium of a contract

induced by the false pretence, commits an offence under this Act.

Imprisonment for a term of not more than 20 years and not less than

seven years without the option of a fine (Section 1(13)

Section 2 applies to any person who, not being the Central Bank of

Nigeria, prints, makes or issues, or represents himself as capable of

printing, making or issuing any currency note, or with intent to defraud, represents himself as capable of producing, from a piece of

paper or from any other material, any currency note by washing,

dipping or otherwise treating the paper or material with or in a chemical substance or any other substance; or with intent to defraud,

represents himself as possessing the power or as capable of doubling

or otherwise increasing any sum of money through scientific or any other medium of invocation or any juju or other invisible entity or of

anything whatsoever commits an offence

Imprisonment for a tern not more than 15 years and not less than 5

years without option of a fine.

Section 3 applies to any person who, being the occupier or is

concerned in the management of any premises, causes or knowingly permits the premises to be used for any purpose which constitutes an

offence under this Act commits an offence

Imprisonment for a term of not more than 15 years and not less than

5 years without the option of a fine

Section 3 applies to any person who by false pretence, and with the

intent to defraud any other person, invites or otherwise induces that

person or any other person to visit Nigeria for any purpose connected

with the commission of an offence under this Act commits an offence

Imprisonment for a term not more than 20 years and not less than

seven years worth the option of a fine

Source: Economic and Financial Crimes Commission (Establishment) Act, 2004,

http://www.efccnigeria.org/efcc homepage-files/establishemtn-act-2004.pdf; Money Laundering

Prohibition Act, 2004, Error! Hyperlink reference not valid., retrieved 03/01/13: Advance Fee

Fraud and Other Fraud Related Offences Act, 2006, http://www.nigeria-

law.org/legislation/LFN/LFNmainpage.htm, retrieved 03/01/13.


http://www.efccnigeria.org/efcc%20homepage-files/establishemtn-act-2004.pdf



156

Based on the enforcement and investigative power bestowed on the EFCC Act, Commission, since

inception, has arrested and prosecuted suspects in the areas of money laundering, illegal charge transfer,

computer credit card fraud, contract scam, Advance Fee Fraud (419) and others. Those arrested and

successfully prosecuted include – Former Governor of Bayelsa State – D.S.P Alamelyeseigha, Former

Inspector General of Police – Tafa Balogun, Former Governor of Edo State – Luck Igbinedion, Former

Chief Executive of Oceanic Bank – Cecelia Ibru and other. However, those successfully prosecuted by

the EFCC, that could be said to be of high political and economic standing had been done through the

adoption and application of plea bargain.

The practice of plea bargain was not part of any Nigeria law until 2004 when the EFCC was established.

The attraction to use plea bargain by the EFCC to fulfill its mandate of checking financial and economic

crimes blatantly derives from the provisions of the Economic and Financial Crimes Commission

(Establishment) Act of 2004 which, in section 14 (2), provides as follows:

Subject to the provisions of section 174 of the Constitution of the Federal

Republic of Nigeria 1999 (which relates to the power of the Attorney-General

of the Federation to institute, continue or discontinue criminal proceedings

against any person in any court of law) the Commission may compound as it

thinks fit, exceeding the maximum amount to which that person would have

been liable if he had been convicted of that offence.

The section cited above evidently empowers the EFCC to enter into plea bargain with the accused and

this is done by compounding the offence before the case is taken to court. The Commission can agree

with the suspect who would be told to return all or part of the loot and the offence compounded. It also

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 (Oguche, 2011).

Section 14(2) of the EFCC Act, as cited above, has been variously invoked by the EFCC in the

prosecution of several cases in Nigeria, particularly high profile economic and financial crimes cases. In

the next sub-section, we examine the impact of the invocation of this section and implementation of plea

bargain by the EFCC on the enforcement of the anti-corruption laws in Nigeria, between 2004 and 2010.

Prosecution of Economic and Financial Crimes and the Enforcement of the Anti-Corruption Laws

in Nigeria, 2004 – 2010 Due to the wide range of enforcement and investigative powers and functions entrusted on the EFCC, the

Commission is expected to pay a decisive role in the fight against corruption in Nigeria and lack of public

accountability in Nigeria. This is so since the EFCC, in addition to the array of powers bestowed on it, is

also to serve as the coordinating agency for the enforcement of the provisions of a number of laws on

economic and financial crimes. Thus, emboldened by the enforcement and investigative powers entrusted

on it by the EFCC Act and determined to give corruption a good fight, the EFCC, since establishment, has

arrested and prosecuted a number of high profile financial and economic criminal crimes. And since it is

empowered by the EFCC Act, Section 14(2) to “compound any offence punishable under this Act by such

sums of money as it thinks fit” (that is, to enter into plea bargain with the accused), the EFCC has adopted

plea bargain as a veritable legal instrument in its efforts to fight corruption in Nigeria. For instance, plea

bargain was adopted in the prosecution of the retired Inspector General of Police, Mr. Tafa Balogun who

was involved in financial and economic crimes. Tafa Balogun, was arraigned before Justice Binta Mrtala-

Nyako of Federal High Court, Abuja, by the EFCC on a 50- count charge of stealing and money

laundering involving over N13 billion in violation of section 14(1)(a) and punishable under section 14(c)

of money laundering Act, 2004 and Section 289 of the Penal Code Cap 532 laws of the federation of

Nigeria, 1990. In course of his trial, Tafa Balogun opted for a plea bargain. The terms of the plea bargain

were that the prosecutor would reduce the 50-count charge to eight-and in return, Tafa Balogun would

refund N500m, forfeit money, stocks, and property worth N17 billion guilty to the eight-count charge. In

line with the negotiated agreement, Justice Binta Murtala-Nyako convicted and sentenced Balogun to six

months imprisonment after pleading guilty to a mitigated eight-count charge of refusal to co-operate with


157

the Economic and Financial Crimes Commission (EFCC) when he was on probe for money laundering

offences (http://www.efccnigeria.org, retrieved 29/09/2012).

Tafa’s case was quickly followed by that of D.S.P Alamieyesiegha, former Governor of Bayelsa State.

The once strongman of Bayelsa politics embezzled so much that he was convicted that his State deserved

a refund. He confessed that he over looted and gentlemanly lured his Prosecutors, the EFCC, to a plea

bargain deal. As a result of the deal, he forfeited some of his properties at V & A waterfront, Cape town,

South Africa, at 32 Amazon Street, Maitama, Abuja, N1bn worth of shares in Former Bond Bank,

$160,000 in account number 005482562491 with an American bank and N105 million in account number

201006285006 with former Bond ban. However, he justified his negotiated sentence or plea bargain by

saying thus: “I am 55 years old. I have lost my wife and children. I have gone through the shadows of

death. I am carrying the matter which I am opposed to. If I am a young man, I would not have pleaded

guilty to these charges because I could have defended myself. If I was (sic) much younger, this cannot be

the case now” With these persuasions, aptly reinforced by his Counsel, Chief Solomon Okpoko, (SAN),

he sealed the plea bargain deal with the EFCC. He pleaded guilty to six out of 33 charges all bordering on

money laundering, corruption and embezzlement of public funds before Justice Mohammed Shuaibu of

the Federal High Court, Lagos. Each of the six charges that Alamieyeseigha was found guilty of carries

two years imprisonment. They are, however, to run concurrently from December 9, 2005 when he was

arrested. In addition, the self-styled Governor General of Ijaw nation forfeited four properties, £2.29m,

N1 Billion worth of shares in a commercial bank, N105 million and $160,000

(http://www.efccnigeria.org,retrieved 29/09/2012) Again, in 2008, the governor of Edo State

between 1999 and 2007, Chief Lucky Nosakhare Igbinedion was arraigned by the Economic and

Financial Crimes Commission (EFCC) before the Federal High Court, Enugu in charge No.

EHC/EN/6C/2008 on a 191-count charge of corruption, money laundering and embezzlement of N2.9

billion. In a plea bargain arrangement, the EFCC, through its counsel Mr. Rotimi Jacob reduced the 191-

count charge to one-count charge. The single charge reads:

That you, Lucky Igbinedion (Former Governor of Edo State) on or about January

21, 2008 within the Jurisdiction of this honourable court neglected to make a

declaration of your interest in account No. 4120113983110 with GTB in the

declaration of assts form of the EFCC and you thereby committed an offence

punishable under the section 27(3) of the EFCC Act 2004 (cited in Oguche,

2011:12).

The terms of the plea bargain were that the prosecutor would reduce the 191-count charge to one-count

charge and in return, Lucky Igbinedion will refund N500m, 3 properties and plead guilty to the one-count

charge. In line with the plea bargain, on the 18th December 2008, the court presided over by Justice A.

Abdul Kafarati convicted Lucky Igbinedion on the one-count charge and ordered him to refund N500m,

forfeit 3 houses and sentenced him to 6months imprisonment or pay N3.6m as option of fine. However,

three years later, that is, on 18th February, 2001 the Commission that had earlier entered into plea bargain

with Lucky Igbinedion filed a fresh 66-count charge of corruption and money laundering against him at

the Federal High Court, Benin City in Charge No. FHC/B/HC/2011. This time around, he was accused of

embezzling 25billion Naira from the coffers of the Edo State people when he was their Governor. But on

31st May, 2011, delivering ruling on a preliminary objection filed by Igbinedion’s Counsel, the presiding

judge, Justice Adamu Hosbon held that it would amount to double jeopardy and abuse of court process to

try the former governor again as he had in 2008 entered into a plea bargain with the commission at the

Federal High Court Enugu. Accordingly, Igbinedion’s name was struck out from the 66-count charge

(http://www.efccnigeria.org, retrieved 29/09/2012).

Still in a bid to stem the rising tide of economic and financial crimes in Nigeria, the EFCC, in 2010

arraigned former Chief Executive Officer and Managing Director of Oceanic Bank Plc, Mrs. Cecilia Ibru

on a 25-count charge of mismanagement of depositors’ funds and money laundering in violation of

section 14(1) (a) and punishable under section 14(c) of Money Laundering Act, 2004 and section 17(1) of

the 1991 Bank and Other Financial Institution Decree. In a plea bargain arrangement, the EFCC accepted



http://www.efccnigeria.org,retrieved/


158

to reduce the 25-count charge to three (counts 14,17 and 23). In return, Mrs. Cecilia Ibru forfeited

properties and assets valued at N191 billion and plead guilty to the amended three-count charge. In line

with the plea bargain, Justice Dan Abutu of a Federal High Court in Lagos, 6 months jail in each of the

charges. But the terms of imprisonment would run concurrently, meaning that she would spend six

months in Ikoyi Prison (http://www.efccnigeria.org, retrieved 29/09/2012). We proceed to present the

afore-mentioned cases in tabular form so as to bring out in bold relief how the adoption of plea bargain by

the EFCC undermined the enforcement of a number of the anti-corruption laws in Nigeria.

Table 5: Enforcement of the Anti-Corruption Laws in Nigeria since the establishment of the ECFF S/N Suspect Accusation Penalty Plea Bargain Sentence

1 Mr. Tafa

Balogun-

retired Inspector-

General of

Police

50-count charge of money

laundering and stealing involving

over N13 billion in violation of section 14(1) (a) and punishable

under section 14(c) of Money

laundering Act, 2004; and Section 383(1) and punishable under section

390 of the Criminal Code, 1990

Money Laundering Prison term of

not less than 2 years or more than 3

years (14) (1) (b) of Money Laundering Act

Stealing Any person who steal anything capable of being stolen is guilty of a

felony, and is liable to imprisonment

for three years (section 390 of the Criminal Code)

a. Reduction the 50-count charge to

eight

b. Refund of N500m and forfeiture money, stocks and property worth of

N17 billion

c. Pleading guilty to the amended eight-count charge (of refusal to co-operate

with the Economic and Financial

Crimes Commission (EFCC) when he was on probe for money laundering

offences).

Six months

imprisonment

2 D.S.P Alamieyesie

gha former

Governor of Bayelsa

State

33 charges all bordering on money

laundering, corruption, and

embezzlement of public funds in

violation of section 14(1) (a) and punishable under section 14(c) of

Money Laundering Act 2004

Money Laundering imprisonment for a term not less than 2 years or

more than 3 years (14(1)(b) of

Money Laundering Act

a. Reduction of the 33-count charge to six

b. Forfeiture of four properties,

£2.29m, N1 billion worth of shares in a commercial bank, N105 million

and $160,000.

c. Pleading guilty to the amended 6-count charge.

Two years imprisonment in each

of the six charges.

But the terms of imprisonment ran

concurrently,

meaning that Alamieyesiegha

spent only two years

in prison

3 Chief Lucky

Nosakhare

Igbinedion-Governor of

Edo State

between 1999 and

2007.


laundering, corruption and

embezzlement of N2.9 billion in violation of section 14(1) (b) of

Money laundering Act, and section

98B of the Criminal Code, 1990.

Money Laundering Imprisonment

for a term of not less than 2years or

more than 3 years 14(1) (b) of money laundering Act

Corruption Imprisonment for seven

years (98B of the Criminal Code)

a. Reduction of the 191-count charge

to one (neglected to make a

declaration of interest to account No. 41240113983110 with GTB in

the declaration of assets form of the

EFCC) b. Refund N500m, 3 properties

Pleading guilty to the amended 1

count charge

6months

imprisonment or pay

N3.6m as option of fine

4 Mr. Cecilia Ibru-Former

Chief

Executive Officer And

Managing

Director of Oceanic

Bank Plc.


laundering, and mismanagement

of depositors’ funds in violation of

section 14(1) (a) and punishable under section 14(1) (b) of Money

laundering Act, 2004 and section 17

(1) of the 1991 Banks and Other Financial Institutions Decree

Money Laundering Imprisonment for a term not less than 2 years or

more than 3 years 14 (1) (b) of

Money laundering Act

Mismanagement

of Depositors’ funds A fine of N100,000.00 or prison term of 3years; as well as forfeiture

of any gains or benefits, accruing to

any person convicted under this section by such contravention, to the

Federal Government.

a. Reduction of the 25-count charge to three

b. Forfeiture properties and assets

valued at N191 bullion c. Pleading guilty to the amended 3-

count charge.

6months jail in each of the charges. But

the term of

imprisonment ran concurrently,

meaning that she

spent only six months in prison

Source: compiled by the writer

Table 5 above clearly articulate the adoption of plea bargain by the EFCC and enforcement of anti-

corruption laws in Nigeria. The enforcement of the anti-corruption laws on the basis of plea bargain the

Commission entered into with the accused in the cases cited above, was evidently at variance with the

provisions of the extant anti-corruption laws, unlike the information in table 3. This is so because in

addition to ‘compounding’ offences in the cases cited in table 5, the punishments for the offences

committed by the accused did not reflect the provisions of the relevant anti-corruption laws. In the cases

of Mr. Tafa Balogun, the retired Inspector General of Police, based on plea bargain with the EFCC, had

his 50-count charge of money laundering and stealing, which, if convicted would have fetched the former

police boss no fewer than five years imprisonment (two years for money laundering and three years for



159

stealing), reduced to eight count charge of refusal to co-operate with the Economic and Financial Crimes

Commission (EFCC) when he was no probe for money laundering offences. Based on this, he was later

sentenced to six months imprisonment. The same ugly development was seen in D.S.P Alamieyesiegha.

The former Governor of Bayelsa State who would have spent nine years imprisonment terms if convicted

of the 33 count charge of money laundering, corruption, and embezzlement of public funds, ended up

having, after plea bargain with the EFCC, his 33 count-charge reduced to six. He pleaded guilty to the six

amended count charges and was then sentenced to six months imprisonment.

The abuse of the provisions of the anti-corruption laws through plea bargain by the EFCC in the

prosecution of economic and financial crimes in Nigeria is much more pronounced in the prosecution of

Chief Lucky Nosakhare Igbinedion. The Governor of Edo State between 1999 and 2007, after plea

bargain with EFCC, had his 191-count charge of money laundering, corruption, and embezzlement, which

if convicted, would have fetched him nine years imprisonment, reduced to one-neglected to make a

declaration of interest in account No. 41240113110 with GTB in the declaration of assets form of the

EFCC. He pleaded guilty the charge and was sentenced to six months imprisonment. The prosecution of

Chief Lucky Nosakhare Igbinedion is peculiar because the charge which he was convicted and sentenced

bore no relation with the offence he committed.

Similarly, the prosecution of Mrs. Cecilia Ibru was also redolent of non-enforcement of the provisions of

anti-corruption laws. The former Chief Executive Officer and Managing Director of Oceanic Bank Plc,

seeing that the proofs against her over 25-count charge of money laundering and mismanagement of

depositors’ funds were overwhelming, opted for plea bargain with the EFCC. She accepted to part with

some of her loot, pleaded guilty to the amended three-count charged and was sentenced to six months

imprisonment instead of two years or more if she was tried and convicted of laundering and

mismanagement of depositors’ funds. Based on the qualitative data presented in the foregoing, it is quite

obvious that the implementation of plea bargain by the EFCC in the prosecution of economic and

financial crimes undermined the enforcement of the anti-corruption laws in Nigeria.

The non-enforcement of the extant anti-corruption laws in Nigeria demonstrated above, means that

justice, realized through the enforcement of the positive law (Singh cited in Johari, 1987), was

undermined. Law functions as an instrument of justice (Singh cited in Johari, 1987), and so, when the

enforcement of positive law is undermined, justice is equally undermined. Justice is either distributive or

corrective or both. Justice is distributive because it entails equal distribution of favour and losses (rewards

and punishments). It is corrective because it entails remedying a wrong act or suppressing mischief

(Aristotle cited in Johari, 1987). And as aptly argued by Rawl (cited in Gauba, 2003), departure from

equal distribution of favour and losses can be justified only when it could be proved to bring greatest

benefit to least advantaged because the sufferings of the distressed cannot be compensated by enhancing

the joys of the prosperous. The implementation of plea bargain of anti-corruption laws clearly

undermined both the distributive and corrective ingredients of justice.

CONCLUSION

This study set out to investigate the link between plea bargain as employed in the fight against corruption

in Nigeria and the enforcement of the anti-corruption laws in Nigeria, focusing specifically on the

Economic and Financial Crime Commission (EFCC), between 2004 and 2010. Utilizing the Marxist

theory of the state, particularly as developed and used by Karl Marx epigones to explain the peculiarity

and dynamics of the neo-colonial state, the study showed that the existing analyses dwell on the need

either to incorporate plea bargain into the country’s criminal justice system as a veritable instrument for

combating corruption, sparing the cost of lengthy trials, disposing of criminal cases, getting defendants to

admit to crimes and still receiving punishment, and decongesting the prisons, or to discard it since it

undermines the integrity of the criminal justice system, escalate the abuse of the fundamental human

rights of the suspects, exacerbate crimes and provide room for unfettered looting of public treasury at all

levels of governance, to the utter neglect of corruption is an integral part of the nature and character of the

Nigerian state and the corresponding structure of primitive capital accumulation necessary for the survival


160

of political leadership. This scenario necessitates the implementation of plea bargain by the EFCC in the

prosecution of economic and financial crimes in Nigeria. The implementation of plea bargain by the

EFCC in the prosecution of economic and financial crimes undermined the enforcement of the anti-

corruption laws in Nigeria

Using four selected cases of economic and financial crimes successfully prosecuted by the EFCC between

2004 and 2010, the study x-rayed the effect of plea bargain implemented by the EFCC in the prosecution

of economic and financial crimes on the enforcement of the anti-corruption laws in Nigeria. The study

ascertained that the implementation of plea bargain by the EFCC in the prosecution of economic and

financial crimes undermined the enforcement of the anti-corruption laws in Nigeria. We, therefore,

maintain that the penetration and dominance of foreign capital, rooted in the unscrupulous search and

accumulation of profit, negate, in the post-colonial Nigerian state, the system of public accountability and

transparency and enthrone corruption not only as an integral part of the nature and character of the

Nigerian state but also as a strategy of primitive capital accumulation necessary for the survival of

political leadership. The efforts at combating corruption by the existing political leadership as seen in the

establishment of the EFCC and ICPC as well as the re-introduction of Civil Service Rules, Financial

instructions, the Open Tender System, among others are more of a token gesture geared towards currying

the confidence of foreign capital in their quest for foreign direct investment and debt cancelation than a

sincere effort to restore credibility and public accountability in governance.

RECOMMENDATIONS

The study ascertained that the implementation of plea bargain by the EFCC in the prosecution of

economic and financial crimes, on the account of the nature and character of the Nigeria state which

foster and sustain structures of primitive capital accumulation as a prerequisite for the survival of political

leadership undermined the enforcement of anti-corruption law in Nigeria, between 2004 and 2010. In

view of the foregoing, we put forward these recommendations for policy implementation:

Rather than undermine the enforcement of the anti-corruptions laws in an attempt to speedily

dispose of criminal cases and/or decongest the prisons, government should set up special courts to

try cases of economic and financial crimes to make for speedy dispensation of such cases.

Federal Government should set up a Criminal Law Reform Committee to embark on holistic

review of the system of administration of criminal justice in Nigeria to the benefit of both the

Nigeria state, the accused person and the society at large.

Finally, the nature, dimension, frequency and depth of corruption and lack of public

accountability in Nigeria at present reflect the nature and character of the Nigeria state,

particularly her corruption-reinforcing structures and institutions and as such, necessitate its

radically restructuring to divest it of these genealogical deformities that have facilitated and

sustained utter abuse of the state power by the members of the ruling class.

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