Treading the Murky Waters of the Bail System in Nigeria

By Nsikak Effiong

The topic of bail remains contentious, sparking debates touching on the procedural aspect of the rights of individuals contained in the Constitution and other enabling laws regulating component states. Legal experts, including esteemed members of the bar and learned judges from various case precedents, have contributed their perspectives. Ordinary Nigerians have also actively participated, sharing their opinions whenever the subject arises. Personal liberty is one of the rights imbued in all persons as human beings, which has also been codified in the statutes, and any derogation must undergo scrutiny to make sure it is in conformity with existing statutes. Nonetheless, the provisions of these statutes are subject to interpretation, which begs the question of the true intent of the legislation.

WHAT DOES THE STATUTE SAY?

The Constitution of the Federal Republic of Nigeria (as amended) guarantees the right to personal liberty, though with certain limitations.¹ Section 35(4) of the 1999 Constitution provides provisions regarding the duration for which a suspect can be detained or the period within which they must be charged. This constitutional framework guides the handling of individuals’ liberties within the legal system. By sub-section (5), “reasonable time” has been interpreted to mean a period of one day from the date of arrest or detention where there is a court of competent jurisdiction within a radius of 40 km and, in any other case, two days or a reasonable amount considered by the Court to be reasonable. The only infraction that shuts out an individual from bail is the commission of a capital offence.²

The Administration of Criminal Justice Act (ACJA) of 2015 also echoed the provisions of the Constitution. Sections 30 and 31 of the ACJA provide for the release of a person of a person on bail when a person is arrested without a warrant, and the power of an officer in charge to release a suspect before a charge is preferred. This can be done through self-recognisance or a surety on reasonable terms. This is generally known as administrative bail, which is within the purview of the Nigerian Police.³ Section 158 of the ACJA cloaks the Court with the power to grant bail pending trial. According to the provisions of Section 161 of the ACJA, a suspect charged with a capital offence can be admitted to bail only under the authority of a high court judge under exceptional circumstances.

DO YOU HAVE A RIGHT TO BAIL?

According to the statutory provisions cited above, a citizen arrested or charged with an offence, except where the offence is a capital offence, e.g., murder, armed robbery, etc., is entitled to bail. A bail could either be an administrative bail or a court bail; the former is granted by law enforcement agencies pending further investigation of a crime, while the latter is the exclusive preserve of the court. However, it should be noted that the right or entitlement to bail is not to be equated with the automatic release of a suspect pending when investigations are concluded, except in rare instances of self-recognisance reserved for persons with repute or high standing in society. In the case of administrative bail, a suspect must meet the terms of bail set by the agency, which must be reasonable, whereas in the case of court bail, the applicant is merely entitled to be heard as he or she is asking the court to exercise her discretion in the applicant’s favour.⁴ Administrative bail seizes automatically when a suspect is charged with a crime. The circumstances considered by the court in granting bail include, amongst others, the gravity of the offence and severity of the penalty, the likelihood of the accused interfering with the trial, the prevalence of the offence, the health of the accused, etc.⁵ The accused person must disabuse the court’s mind by showing why he or she should be admitted to bail.

WHAT IS “REASONABLE” OR “EXCESSIVE” WHEN GRANTING BAIL

The provisions of the statutory laws providing for bail have enunciated that the conditions must be reasonable and not excessive. What then is the yardstick for the reasonableness of a bail condition?  The terms upon which the Police or the court grants bail are usually determined by the circumstances of each case. However, whatever the circumstances of a particular case, the terms upon which bail is granted must not be impossible or onerous to meet.⁶ This gives the enforcement agencies and the courts a wide ambit in setting the terms of bail. The only recourse of the Applicant is to ask for a review of the terms and in addition, in the case of an administrative bail, an application to the court under the Fundamental Rights Enforcement Procedure Rules 2009.⁷  It was held in the case of Onyirioha v IGP⁸ it was held that such onerous terms raise the presumption that the accused person is guilty of the offence charged.

MATTERS ARISING

What happens when a suspect is refused bail or cannot meet the terms of the bail? The prevalence of prolonged detention in Nigeria is a norm rather than an outlier. Most of these suspects are hapless due to their inability to grease the palms of these enforcement agencies to secure their release. The validation of remand order in S.293 of ACJA, which bestows on a magistrate the right to entertain an application where it ordinarily cannot sit over, to keep a suspect in prison pending further investigation, has led to serious abuse and exploitation by enforcement agencies. The decision of the Court of Appeal in EFCC v Emem Israel Uboh⁹ questioning the constitutionality of administrative bail is concerning. Should a suspect be held pending when an application is made to the court considering the delay inherent in our judicial system? This is not the intention of the provisions of Section 35 of the CFRN. Additionally, what happens when a suspect is admitted to bail but cannot meet the requirements?  Can their continued detention be justified on the grounds that there is compliance with the statute and that the suspect is still in detention of his volition?

CONCLUSION

The issues affecting the bail system in Nigeria are deeply troubling. Liberty is an inalienable right, and any violation or threat to this right should be met with serious concern. Discretionary powers must be exercised judiciously and with caution. While there is a need to protect society and ensure the safety and security of its citizens, a suspect or accused person is presumed innocent until proven guilty. Statutory provisions must be strictly adhered to. Ambiguities in these laws should be clarified through consistent judicial interpretation. Administrative bail should be regulated with proper oversight to ensure compliance and minimise arbitrariness.

Reference:
1 See S.35(1)(a)-(f)
2 S.35(7) of the CFRN
3 See also S.62 of the Police Act 2020
4 Bail pending appeal is not as of right as the accused person is a convict and no longer presumed innocent.
5 Section 162 ACJA
6 Section 165 ACJA
7 Order IV Rule 4 FREP Rules
8 [2009] 3 NWLR (pt. 1128) 366.
9 (2022) LPELR-57968 (CA)