By Victor Adegbite

Have you ever walked into a Nigeria police station, and see the pasted note, “BAIL IS FREE”? Yes, bail Is free.

The police in Nigeria habitually, proceed to make arrests based on complainant’s statements before commencing their investigation, Under Nigerian law, bail is a right of an accused person, which should not denied except where the offence is a capital offence and special circumstances genuinely exist.

By virtue of section 35 of the 1999 Constitution, every person is entitled to his personal liberty. However, this right is curtailed by the imperatives of crime prevention; participation and perhaps punishment if found guilty. This right is restricted inter alia, for the purpose of bringing an accused person before a court in execution of the court order or upon reasonable suspicion of his having committed a criminal offence, or to such extent that is reasonably necessary to prevent his committing a criminal offence.

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

The common factor in granting bail is the availability of the accused person or convict to stand his trial. The basic constitutional provision as enshrined in the section 35 (4) of the 1999 Constitution on dealing with arrested persons requires that once a person is arrested by the police or by citizen arrest is to be handed over to the police, on suspicion of having committed a crime, the police is obligated to take the person to court within 24 hours if there is a court of competent jurisdiction within 40 kilometres of the place where the alleged offence was committed or within 48 hours or such longer period as is considered reasonable where there is no court within 40 kilometres of the place of the alleged commission of the offence. It is therefore illegal for a suspect to be detained for more than 48 hours, by the police or enforcement agencies without charging the suspect to court.

The right to bail of a suspect was validly upheld in the Section 62(2) of the Police Act, 2020 that “The Police officer in charge of a Police station shall release the suspect on bail on his entering into a recognizance with or without sureties for a reasonable amount of money to appear before the court or at the police station at the time and place named in the recognizance”. The issue of bail can arise at three stages in the criminal process, at the police known as Administrative bail, at the trial stage and at the appeal stage.

The effect of granting bail at common law is not to set the defendant free, but the presumption of innocence, however to release him from the custody of the law and entrust him to the custody of his sureties, who are accountable and are bound to produce him to appear at his trial when required. The surety undertakes to forfeit a certain amount of money in the event, their principal(Suspect) breaks the bail conditions. The bail conditions are subjected to the discretion of the particular Judge or Magistrate, with due regard to the circumstances of the case and shall not be excessive.

The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of the law and he will be imprisoned, unless he obtains fresh bail. A surety who believes that the principal is likely to break the condition as to his appearance may have him arrested.

A recent undercover investigation on Nigeria’s Criminal Justice System by Fisayo Soyombo unravels the darkness and corruption, like cankerworm which has totally devoured the very fabric of the condition of suspects in Nigerian prisons and police stations. While bail is required to be free, in practice it is usually granted on the condition of payment of given sums of money. In most cities in Nigeria, the rate of police bail varies from Division to Division and it ranges from N5, 000 to N1, 000,000. 00 depending on the gravity of the alleged offence and the willingness of the suspect or his relations to pay for same. These illegal practices take place even where there are notices at the police charge room boldly stating that “bail is free”. Indeed, it is imperative to warn never to honour a police invitation on a Friday, as such a person runs the risk of spending more time than is necessary as the police would apply one delay tactics or the other, resulting in the suspect spending more days in detention.

A criminal justice system that is inefficient, inadequate, corrupt, infrastructural deficient, under-financed, undermanned and prone to abuse such as the present Nigerian Criminal Justice System is a threat to the Rule of law and all other indices of democracy and good governance. Regrettably, the Judicial arm -both the bar and bench- has been caught-up in this quagmire. It is our hope that Nigerians stop the lament to high heavens about the absence of laws that provide severe punishment for corrupt public official and the Nigeria prisons be urgently looked into and necessary measures taken to allow for equity and fairness in the dispensing of justice in the country for conscience of the society and the hope of the common man.

Victor Adegbite is a Lawyer-In-Equity. He tweets via @IamVictorErnest and can be reached via [email protected].

REFERENCES

REMAND ORDERS, BAIL AND THE CRIMINAL JUSTICE SYSTEM( https://legalpediaonline.com/the-criminal-justice-system/)