Section 35 (1) of the 1999 Constitution of Nigeria (as Amended) guarantees the right to personal liberty of all persons in Nigeria.
Where a person is arrested on the suspicion/allegation of having committed a crime, the law provides that such person must not be unduly detained in police custody. Section 62(2) of the Police Act, 2020 provides: "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". Bail is the process/procedure by which a person accused or being charged for the commission of a crime, may be released by the constituted authority who is detaining him upon security being taken and on the condition that he will report or appear at the police station or court whenever his presence is required or ordered (Onyebuchi v. Federal Republic of Nigeria (2009) All FWLR (pt. 458) 341). The Right of bail is a constitutional right and contractual in nature (Suleman & Anor v. C.O.P Plateau State (2008) S.C. (Pt 1) 185).
Part 19 of the Administration of Criminal Justice Act (ACJA) 2015 makes elaborate provisions for bail and it can be summarized into three (3) categories:
- Offences whose punishment is below three years imprisonment: the defendant is entitled to bail unless the court see reasons to the contrary.
- Offences whose punishment are above three years imprisonment: the court shall grant bail on application except in certain limited circumstances.
- Capital offences: the court shall not grant bail except there are compelling circumstances to the contrary.
Bail may be granted either unconditionally or subject to conditions, usually referred to as the terms of bail. Conditions are attached to bail in order to ensure that the accused person does not jump bail, interfere with investigation or commit further crimes. The conditions for bail in any case shall be at the discretion of the Court with due regard to the circumstances of the case and shall not be excessive (Dasuki v. D.G, SSS & ORS (2019) LPELR-49182(CA)). ACJA has expanded the category of sureties to include all adults irrespective of gender (Section 167 (3)).
One of the threats to access and enjoyment of the right to bail is imposition of stringent bail conditions. When the bail condition is excessive, it amounts to a denial of bail. While bail conditions are not expected to be harsh, a Court is not obliged to give conditions of bail which the person seeking bail can comfortably meet. In considering the condition to be given as the terms to release a defendant on bail, a Court will be more concerned with whether the defendant will be available to stand his trial. This is the main purpose of bail (Ebiowei Tobi, JCA in Ajai v. C.O.P (2022) LPELR-57795(CA) Pp 7 – 11). Trial Courts are enjoined to be liberal in their approach to grant of bail conditions in non - capital offences. They are to grant bail on favourable and affordable conditions (Madu v. The State (2011) LPELR 3973). Where the conditions of bail are stringent, the Appellate Court has a duty to vary the conditions (Shuaibu V. FRN (2014) LPELR-22986 (CA)). Inability to meet bail conditions invariably feeds into the problem of overcrowding of correctional facilities.
The failure and/or refusal of defendants to present themselves in court or at the police station when they are needed (jumping bail) is a major challenge to the right to bail in Nigerian criminal justice administration. If the accused absconds or “jumps bail” then the surety becomes liable to forfeit the security provided for the bail. One of the most important duties of a surety is entering into a bond or depositing an amount of money or other form of security to secure release of the defendant and to promise that the defendant shall be available whenever called upon. The security deposited constitutes some form of pressure on the surety to ensure the defendant appears in court or fulfils the terms of the bail agreement. Where the defendant jumps bail or otherwise breaks any of the terms of the recognizance, the surety is obliged to pay the sum agreed and if the surety is unable to do so, proceedings may be instituted against the surety to recover the amount.
The incidents of sureties getting arrested or threatened with arrest are becoming common phenomena in Nigerian criminal administration and paint a horrid picture of the role of a surety in the bail process, in the minds of the average Nigerian. Bail jumping cuts across all cadres of offenders, low and high profile offenders, first timers and serial offenders. The big challenge encountered with respect to low profile offenders is the ease of location of the offenders and fidelity of sureties. The increase in the number of high profile and politically exposed individuals jumping bail is a matter of concern for prosecutors and judges. Indeed, there is the fall-back on sureties and the securities provided but the phenomenon does not augur well for the criminal justice system. From the high profile bail condition violations, it is evident that sureties are incapable of preventing defendants from jumping bail. Securing the attendance of defendants should not be the sole responsibility of the surety.
There is a bail infrastructure embedded in the Administration of Criminal Justice Act and the Administration of Criminal Justice Laws of the States that is largely un-activated. ACJA/ACJLs seek to establish standards, professionalize and institutionalize the bail mechanism by making provisions for registration and licensing of corporate bodies or persons to act as bondspersons (Section 187). The Chief Judges of Ogun and Lagos States have issued regulations to activate this important component of ACJL. The regulations promulgated by the heads of courts will establish the criteria for participation, institute safeguards and provide mechanisms of accountability. This new regime will eliminate the incidents of fake sureties and the need for court registrars to double as fact checkers of bail applications. The bondspersons are professionals that have a direct stake in the appearance of the defendant in court and as such, will ensure proper checks and monitoring systems for defendants under their watch.
Law enforcement agencies should consider themselves as stakeholders in the bail system and should share a joint responsibility through technology for monitoring and tracking. The courts have made it clear that the effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. Within the limits of the law, technologies such as GPS tracking ankle bracelets can be deployed to ensure that defendants, especially in high profile corruption, fraud and money laundering cases comply with the bail conditions.
Giving sureties the comfort of support from law agencies in the tracking and monitoring of defendants will encourage citizen participation in the criminal justice system.