The burden of proof as a determinant to plea bargain

The recent decision by the federal high court convicting chief [mrs.] cecelia ibru of the oceanic bank, by the economic and financial crimes commission [EFCC] using the plea bargain option, has elicited so much consternation and odium from the nigerian public, because of the beliefs and feeling of generality of nigerians, that the sentencing did not evidently fit the magnitude of the crime as the term given against chief [mrs.] ibru seems to be light, compared to the amount of money involved in the instant case. My post mortem exercise here is not to question the competence, finality or morality of the court that unveiled the decision, rather it is an attempt to reason on the likely factors the made the court to arrive at the conclusion it achieved.

The concept of a plea bargain which is the negotiation of the willingness of the defendant to accept culpability to an offence is the premises upon which the system is built, thus the defendant who is under interdiction must feel comfortable about the deal to protect an assured interest, in the first instance both the plaintiff and the defendant must weight the balance of available evidence supporting their causes and arguments in the context of the case, thus the parties reach an agreement on the pleadings offered by the defendant on the professional advice of a counsel and the determination by the prosecutor whether it would serve the best interest of justice to accept such a pleading, the primal assumption here is that the best interest of justice converges with the personal interest of the prosecution.

The mode of prosecutorial system practiced in the federal republic of nigeria, is based upon the legal wisdom that the burden of proof always lays at the instance of the prosecution, thus the principal and applicable dictum been that he who asserts must prove, while the defendant litigant has the burden of demanding that the claim against him or her interest must be proven beyond reasonable doubt, thus the burden of proof lies with the prosecution to seek and stribe to establish evidence that state the extant and extent of wrong committed by a prospective defendant, while the defendant makes every available effort to create a condition of doubt on the argument subscribed to by the plaintiff.

The primal cardinal basis for conviction in our courts of law is the availing and unveilng of evidence, validly obtained and presented to the court for assesment and review to determine the weight of presented fact and confirmation of the level of each of the parties entitlement. However themost challenging aspect of prosecuting a white collar crime, indeed any other crime is the way and manner the evidence is gathered and presented to the courts for perusal, corporations and global industrial conglamerations are built upon waves and chains of loyalty that is almost fidicuary in nature, with the staff feeling they are merely agents of a principal who in these instant case happens to be the owners on executive holding positions.

The bond of loyalty ascribed to positions and relationships in global corporation poses a real problem to any deligent prosecutor, how to obtain necessary evidence in an environment that is hostile and unco-operative, with a staff structure that sees itself as breaching the code of loyalty and gratefulness in any association and assistance given to the prosecutor, the resulting effect and circumstance is the evident inability of the prosecutor to gather the necessary evidence needed for prosecution, thus creating a scenerio and situation that could result in non prosecution of a likely offender, these problem and challenge causes the adoption of the option of a plea bargain.

The precept of a law of evidence is easily equated to the concept the law itself, where every prosecution, conviction and indeed adjucation is achieved through the rate of evidence involved, thus for such a vital determinant to the work of conferment of justice its placement at the grace of a disadvantaged prosecutor, creates a desire and necessity to seek the option of a trial that satisfies the needed conviction of an offender eventhough the width and latitude of the sentence obtained is not consummerate with the alleged offence.

The evident reality of the position of a prosecutor in achieving the cause of justice and the factual reference of available evidence as the fulcrum of the determinant position of the courts, makes it necessary for prosecutory authorities from the office of attorney general of the federation, economic and financial crimes commission [EFCC], independent corrupt and other related practices commission [ICPC] and indeed the nigerian police force, should seek to proclaim the mechanism of a judicial review that narrows the confines of the burden of proof in cases involving financial crimes, where rather than the plaintiff needing to prove the allegation of infraction against the defendant, the honour would now lie on the defendant to prove that the offence was not committed.