Abstract

In criminal Justice jurisprudence ,the right to bail forms part of the due Process of law and requires the application of principles of rationality by the Courts in order to temper the rigours of positivism.

The right To bail has oftentimes been discussed in the context of the Presumption of innocence and the right to liberty. Also, between the context of Presumption Of Innocence and the right to liberty of the accused person as provided for in section S 36 and section 35 of the 1999 constitution respectively, is the tension arising From the need To protect The community’s interest Against crime And criminals.

Indeed, the issue Of presumption Of innocence of the accused person vis-à-vis the right to personal Liberty Are The cornerstones of the debates on bail and as well the flash points of measuring The efficiency or otherwise Of Any criminal justice system.

1.0 Introduction

The Nigerian 1999 Constitution provides that an accused person who has been arrested on the allegation of having committed an offence must be charged to court within 24 hours where a court of competent jurisdiction is located within a radius of forty kilometers from the police station; and where a court is located within a radius above forty kilometers from the police station, the accused person must be charged to court within 48 hours or such longer period as a court might consider reasonable.

Bail can be defined as the process whereby a person accused or being charged for the commission of an offence is released by the constituted authority who is detaining him, on the condition that he will appear or report to a police station or court or other identified location in future whenever his presence is required or so ordered.

JUSTICE NIKI TOBI defined bail to mean temporal freedom given to an accused person to enable him prepare fully for his trial. Bail was also defined in the case of Caleb ojo v FRN (2016) 9 NWLR (pt.984) 103 thus; Bail as freeing or settling at liberty one arrested or imprisoned, upon others becoming sureties by recognizing for his appearance at a day and place certainly assigned.

2.0 TYPES OF BAIL

There are 2 broad types of bail in Nigeria, they are:

2.1 Police or Court/ Administrative Bail.

This is the type that is obtained by someone who is suspected of the commission of a crime. At this point in time the police or the government agency investigating the matter has not yet obtained enough evidence to charge the suspect to court.

The Nigerian 1999 Constitution provides that an accused person who has been arrested on the allegation of having committed an offence must be charged to court within 24 hours where a court of competent jurisdiction is located within a radius of forty kilometers from the police station; and where a court is located within a radius above forty kilometers from the police station, the accused person must be charged to court within 48 hours or such longer period as a court might consider reasonable.

Therefore it is illegal and unconstitutional for a suspect to be detained for more than 48 hours by the police (or government agency) without bail or without charging the individual to court. Government agencies include agencies such as the Economic and Financial Crimes Commission (EFCC), Independent Corrupt Practices Commission (ICPC), National Drug Law Enforcement Agency (NDLEA) etc.

Also, POLICE BAIL is FREE, wait a minute, is that applicable in Nigeria?

unfortunately unscrupulous officers still extort suspects and make them pay for ‘bail’ before they are released.

2.2 Court Bail

Court bail, as the name implies, is granted by a court of law. Court bail can be granted in 2 scenarios –which are;

Bail pending trial of the accused person
bail pending the appeal of the accused.
Bail pending trial is when the case against the accused person is still on-going, but the accused person is allowed to leave detention, until the end of the trial. This is founded on the principle of ‘presumption of innocence’. This is because an individual is presumed innocent until proven guilty by a court of law. In deciding whether or not to grant bail, the court looks at things like whether the proper investigation of the offence would be prejudiced if the accused person is granted bail, or whether the accused person is a flight risk, the health of the accused and whether he/she can get adequate medical treatment in custody etc.

Bail pending appeal is where the person has been found guilty and he/she intends to appeal the conviction ,though right to appeal is also enshrined in the constitution but not a fundamental right. This can be found in the provision of S 241 CFRN 1999.

However, This type is generally more difficult to obtain, this is because the presumption of innocence does not exist here again, as the person has been found guilty. Though it is arguable that the Presumption of innocence is still present pending the determination of the Appeal.

3.0 BAIL CONDITIONS

When it comes to the issue of whether to grant or refuse bail pending trial of an accused by the trial court, the law has set out some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. These criteria have been well articulated in several decisions of this court. Such criteria include, among others, the following:

(i) the nature of the charge;

(ii) the strength of the evidence which supports the charge;

(iii) the gravity of the punishment in the event of conviction;

(iv) the previous criminal record of the accused if any;

(v) the probability that the accused may not surrender Himself for

trial;

(vi) the likelihood of the accused interfering with witnesses or may

suppress any evidence that may incriminate him.

(vii) the likelihood of further charge being brought against the

accused;

(viii) the probability of guilt;

(ix) detention for the protection of the accused.

(x) the necessity to procure medical or social report pending final

disposal of the case.

The aforementioned conditions are received judicial blessings in plethoral of authorities, to mention but few;

See: Bamaiyi v. State (2001) 8 N.W.L.R. (Pt. 761) 670; Abacha v. State(2002) 5 N.W.L.R. (Pt. 761) 638; Ani v. State (2002) 1 N.W.L.R. (Pt. 747)217; Ekwenugo Federal Republic of Nigeria (2001) 6HW.L.R. (Pt 708) 9;Evu v. State (1988) 2 N.W.L.R. (Pt. 78) 607.

It is worthy of note as well, that on a question of exercise of discretion authorities are not of much value. No two cases are exactly similar and even if they are, the court cannot be bound by a previous decision to exercise its way because that would be putting an end to discretion. No

discretion in one case can be a precedent to another.

See: the holding of Kay, L.J. in the case of Jenkins v. Bushby (1891) 1 Ch. 484, at page

485; see also Kudoro v. Alaka (1956) 1 FSC 82 at page 383: Solanke v.Ajibola (1968)AllN.L.R. 46 at page 51.

3.1 Bail conditions are the conditions, which are set to ensure that the accused person presents himself/herself to the authorities when his/her presence is requested.

When a person is granted bail, some of the conditions for the grant of the bail may include:

1.To appear in court at a certain date

Living at a particular address
Not contacting certain people
Giving his/her passport to the Police or other law enforcement agency
Reporting to a police station at agreed times, e.g. once a week
Getting a surety (in Nigeria the courts prefer sureties with landed property in certain locations and who may or may not be civil servants on a certain level).
That the surety undertakes to forfeit a certain amount of money in the event that the accused does not attend Court as required (recognizance)
However, If the accused person for some reasons breaks the conditions, he/she may be arrested and have the bail revoked. If he/she jumps bail and there is a surety, then the surety would forfeit the recognizance, and the courts have the power to arrest a surety who refuses to pay the recognizance, unless the surety can show cause provide satisfactory evidence to the court that he is not to be blamed for the accused person jumping bail, and did everything in his/her power to prevent this from happening.

4.0 In most legal systems distinction is often made between offences That are bailable and those that are not. Offences classified as minor or misdemeanor Are Often Bailable Whilst serious offences like felony are not. In any case, bail as a due process of Law would Seem To temper the need to balance between the right of the accused person to his personal liberty and

that of the society to protect others from the effects of criminal conduct of the accused

person, by keeping him away in some legal custody. The right To bail has oftentimes been discussed in the context of the Presumption of innocence and the right to liberty. Also, between the context of Presumption Of Innocence and the right to liberty of the accused person is the tension arising From the need To protect The community’s interest Against crime And criminals. Indeed, the issue Of presumption Of innocence of the accused person vis-à-vis the right to personal Liberty Are The cornerstones of the debates on bail and as well the flash points of measuring The efficiency or otherwise Of Any criminal justice system. In other words, the practice of criminal justice By The State Is largely a useful indicator of how the state has been able to dispense justice to its people. In Nigeria, the Constitution as well as plethora of judicial authorities where The Provisions Of the Constitution and other relevant laws on bail have been Interpreted, have All provided in very clear terms, safeguards for the due observance of and Clear Adherence To The laid-down principles and standards in the administration of criminal justice. In practice, however, there appears to be sharp contrast to what the Constitution and other relevant laws Guarantee as safeguards against the infringement of the rights of persons alleged of having committed Crimes. It is therefore not uncommon to see people accused of Having committed crime Arbitrarily held in detention without trial for years; others are arrested, detained and tortured for such offences as loitering, wandering and vagabond.

4.1 Under the administration of criminal justice system in Nigeria, bail Arises at threepoints, to wit:

(I) A suspect may be granted bail by the police;

(ii) The accused may Be granted bail by the court;

(III) And a convict may be granted bail while awaiting his Appeal.

Note however that the abuses arising from bail processes permeate these three medium. In the case of a pre-trial police bail, for example, many accused persons are kept in Custody without bail By The Police, and in many instances they are not brought before a court within the constitutionally prescribed limit Of 24 or 48hours. In The Case of Other variants of bail – bail by the court for an accused person pending trial and for a convict awaiting his or her appeal-cases of want on denial of bail by courts even in the so called bail able offences are replete in the case law. The excuse or explanation the courts often give For the cases of Outright refusal of bail is that bail is generally at the discretion of the courts. In all of this, the Constant Issue of contention has been the need to balance between the conflicting interests of the state to bring offenders to trial and to dispense justice and, the protection Of The Rights Of Citizens and the presumption of innocence which dictates that no one, without justification, should be deprived of personal liberty.

Conclusion/Recommendations

The right of an accused person to be released on bail is germane to the just and efficient dispensation of criminal justice the world over. While it is agreed that such a right is not automatic or absolute, effort must be seen not to refuse bail for punitive reasons but for valid reasons and reasons that will further the cause of justice.

The Act should however be amended to make clear and specific provisions for the conditions to be met before bail is granted. It is has become a practice for judges to prescribed stringent conditions of bail which defeats the essence of bail. The right to bail is a fundamental human right provision in our constitution, it is in our humble opinion that the condition to be considered for granting same should not be left to the discretion of any individual, panel or a group. It will also promote certainty in our criminal justice law and procedure.

Written By M. O Zubair
Address: FACULTY OF LAW, AHMADU BELLO UNIVERSITY ZARIA
GMAIL: [email protected].
CONTACT: 08169287393

REFRENCES

CFRN 1999 AS AMENDED
Bamaiyi v. State (2001) 8 N.W.L.R. (Pt. 761) 670;
Abacha v. State(2002) 5 N.W.L.R. (Pt. 761) 638;
Ani v. State (2002) 1 N.W.L.R. (Pt. 747)217;
Ekwenugo Federal Republic of Nigeria (2001) 6HW.L.R. (Pt 708) 9;

6.Evu v. State (1988) 2 N.W.L.R. (Pt. 78) 607.

CALEB OJO V FRN (2016) 9 NWLR (pt.948) 103.