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EFCC’s “rejection” of Out of Court Settlement did not start with Patience Jonathan

Over the years, the Economic and Financial Crimes Commissions (EFCC), has remained consistent in its rejection of ‘Out of Court settlement’ from defendants, preferring a ‘Plea bargain’ in lieu. This is contrary to how media reports framed headlines which make it seem like the alleged rejection was exclusive to the former first lady, Dame Patience Jonathan.

Dame Jonathan is being prosecuted for unexplainable deposits on her domiciliary account ($11,489million). In a statement by her spokesman, Belema Meshack-Hart, she accused the anti-graft agency, EFCC, of victimization for her role in the last Presidential elections.

“We believe that she is being systematically persecuted and punished because of her unflinching support for her husband during the 2015 elections”.

After losing a 2 billion naira suit of Fundamental rights against the EFCC, Dame Jonathan, through her legal Counsel, Chief Ifedayo Adedipe (SAN), sent a proposal for an ‘Out of Court’ settlement to the Prosecutors (EFCC).

However, media houses reported that an anonymous Source from EFCC has expressed the agency’s unwillingness to accept her proposal, as EFCC prefers a ‘plea bargain’ to an ‘out of court’ settlement.

“We are certainly rejecting the offer from the ex-First Lady because the EFCC does not engage in such a deal.

“But we prefer the ex-First Lady approaching a court for plea bargain in line with the relevant laws if she is ready to settle all issues. The terms of the plea bargain will be open to all parties before the court.

“I think she should emulate other high profile suspects who went to the court for plea bargain. We are ready to apply the laws in the interest of justice for all. We won’t oppose plea bargain”.

While some may view EFCC rejection of Dame Jonathan’s Out of Court settlement as a witchhunt, this may be further from the truth as facts on ground show the agency’s consistency in its preference of a plea bargain to an Out of Court’ settlement.

Former Chief of Air Staff, Air Marshal Mohammed Umar

On trial for alleged 9.7billion fraud, Umar Muhammad had sought an ‘out of court’ settlement in 2016, which was rejected by the agency.

Giving clarification for the rejection, an anonymous source in EFCC said; “When you talk of an out-of-court settlement, it is as if there is a civil disagreement between the EFCC and the ex-Chief of Air Staff.

“What we have at hand is a criminal matter. The accused person must first of all admit that he committed the offence. So far, by the court records, the ex-Chief of Staff said he is not guilty of all the allegations against him.

“Let him do the needful and thereafter, he can initiate a plea bargain option which we will consider on merit.

“A key component of the plea bargain which can be acceptable to the EFCC is the readiness of the ex-Chief of Air Staff to refund all the funds credited or traced to him in cash or in terms of assets.

“Even if the plea bargain will carry a lighter sentence to serve as a deterrent to others, we prefer it than an out-of-court settlement”.

Senator Danjuma Goje

The former Governor of Gombe state, along with four others (Alhaji Sabo Mohammed Tumu, Alhaji Aliyu Ubadone El-Nafaty, S. M. Dokoro and a firm, S. M. Dokoro Gombe) were being prosecuted for an 18 count charge, including money laundering of about 25 billion Naira since 2011. Goje and others asked for an out of court settlement.

The proposal was rejected by the EFCC, with its Acting Chairman, Ibrahim Magu, saying “the EFCC will not accept plea bargain without conviction and substantial refund of the mismanaged funds”.

Understanding Alternative Dispute Resolution

With renewed call for the application of Alternative Dispute Resolution (ADR) by the Chief Justice of Nigeria, Justice Walter Onnoghen, it is imperative one gets acquainted with the understanding of ‘plea bargain’ and ‘out of court’ settlement.

Plea Bargain is a negotiated agreement between a prosecutor and a defendant, whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usually, a more lenient sentence, or a dismissal of the other charges.

According to J.A. Agaba, for a Plea bargain to be effective, the following has to be met;

i.   A prosecutor and an accused person/defendant;
ii.  A negotiation between the prosecutor and the accused person/defendant;
iii.  A negotiation which must have ended in an agreement with concessions and compromises from the prosecutor and the accused/defendant;
iv.  A plea, that is, a plea of guilty to the charge or to a lesser charge;
v.   The involvement of the court; and
vi.  An acceptance of the plea by the court.

Out of Court settlement, on its own, means an agreement reached between the parties in a pending lawsuit that resolves the dispute to their mutual satisfaction and occurs without judicial intervention, supervision, or approval.

It also provides that the parties relinquish their rights to pursue judicial remedies.

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