THE MONETISATION OF BAIL IN NIGERIA
BAIL IS FREE IN NIGERIA, BUT YOU STILL HAVE TO PAY
Under the adversarial criminal justice system presumption of innocence inures in favour of accused persons. Accordingly, every criminal suspect is entitled to bail granted by either the police or the court. But like all civil and political rights which are enjoyed exclusively by rich individuals who have the financial wherewithal indigent criminal suspects are economically disabled from enjoying the right to bail. Thus, out of the country’s small prison population of 51,000 inmates only 12,000 have been convicted. The remaining 39,000 inmates have either been refused bail or granted bail but unable to produce reliable sureties or fulfill other onerous conditions set down by either the law enforcement agencies or the courts. In this presentation we shall examine the monetization of bail which is the raison d’être for denying bail to the majority of indigent accused persons in Nigeria.
The Concept of Bail
According to the Black’s Law Dictionary ‘bail’ is defined as “a security such as cash or bond; especially security required by a court for the release of a prisoner who must appear in court at a further trial”. In Nwude v. Federal Government of Nigeria (2004) 41 WRN 124 at 145 the concept of bail was examined by the Court of appeal when it held that “the whole concept of bail generally is about surety or sureties taken by a person duly authorised for the appearance of an accused person at a certain day and place to answer charges leveled against him and be justified by law”.
According to the Black’s Law Dictionary ‘bail’ is defined as “a security such as cash or bond; especially security required by a court for the release of a prisoner who must appear in court at a further trial”. In Nwude v. Federal Government of Nigeria (2004) 41 WRN 124 at 145 the concept of bail was examined by the Court of appeal when it held that “the whole concept of bail generally is about surety or sureties taken by a person duly authorised for the appearance of an accused person at a certain day and place to answer charges leveled against him and be justified by law”.
The Court also approved the definition of bail in Kenny’s Outline of Criminal Law to the effect that it is a “contract whereby an accused person is delivered to his surety or also the contract of the surety himself. The primary object of it in any event is to ensure that the accused person will attend court to stand his trial.” In Mohammed Abacha v. The State (2002) 5 NWLR (PT 761) 187 the Supreme Court defined bail as the “means to set at liberty a person arrested or imprisoned on security being taken for his appearance on a day and place certain”
It appears from the above definitions that the sole purpose of granting bail to accused persons pending trial is to procure their release by ensuring future attendance in Court and compelling them to remain within the jurisdiction of the court while bail pending appeal is granted in exceptional circumstances to prevent a convict from serving a jail term that is likely to be set aside. See Fawehinmi v. The State (1990) 1 NWLR (PT 127) 486.
No doubt, bail is always tied to the ownership of landed property and money in all capitalist societies. But since the Constitution has placed premium on equality before the law judges should desist from imposing monetary and property related bail conditions on indigent criminal suspects. In a case involving a commercial driver charged with murder for hitting a judge with a bus on Moloney Street in Lagos the driver was denied bail by the trial judge. Even though we succeed in getting bail for him in the Court of Appeal the applicant has not been able to meet the bail terms of two sureties in the sum of N100,000 each of whom must be land owners in Lagos State.
Since the essence of bail is to secure the attendance of accused persons at their trial family members and close friends of criminal suspects should be allowed to stand surety for them. In 1992, the late Fela Anikulapo-Kuti was charged with murder with two of his aides the Lagos High Court. The trial judge admitted the defendant to bail on the condition that the defence counsel or his senior brother who was then a minister was prepared to stand surety for him. The bail condition was met when the defendant’s senior brother stood surety for him. But it took over a month before we could get land owners to take out the other two defendants on bail.
It appears from the above definitions that the sole purpose of granting bail to accused persons pending trial is to procure their release by ensuring future attendance in Court and compelling them to remain within the jurisdiction of the court while bail pending appeal is granted in exceptional circumstances to prevent a convict from serving a jail term that is likely to be set aside. See Fawehinmi v. The State (1990) 1 NWLR (PT 127) 486.
No doubt, bail is always tied to the ownership of landed property and money in all capitalist societies. But since the Constitution has placed premium on equality before the law judges should desist from imposing monetary and property related bail conditions on indigent criminal suspects. In a case involving a commercial driver charged with murder for hitting a judge with a bus on Moloney Street in Lagos the driver was denied bail by the trial judge. Even though we succeed in getting bail for him in the Court of Appeal the applicant has not been able to meet the bail terms of two sureties in the sum of N100,000 each of whom must be land owners in Lagos State.
Since the essence of bail is to secure the attendance of accused persons at their trial family members and close friends of criminal suspects should be allowed to stand surety for them. In 1992, the late Fela Anikulapo-Kuti was charged with murder with two of his aides the Lagos High Court. The trial judge admitted the defendant to bail on the condition that the defence counsel or his senior brother who was then a minister was prepared to stand surety for him. The bail condition was met when the defendant’s senior brother stood surety for him. But it took over a month before we could get land owners to take out the other two defendants on bail.
The right to bail
It is submitted that the fundamental right of an accused person to personal liberty includes the right to bail pending trial. Specifically section 35(4) of the 1999 Constitution provides as follows:
“Any person who is arrested or detained in accordance with subsection (1)(c) shall be brought before a court of law within a reasonable time and if he is not tried within a period of;
a. two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail;
b. three months from the date of his arrest or detention in the case of a person who has been released on bail; he shall be (without prejudice to any further proceedings that may be brought against him) be released to either unconditionally or upon such conditions as are reasonably to ensure the he appears for trial at a later date.”
The presumption of innocence in favour of an accused person is guaranteed by Section 36(5) of Constitution 1999, which states as follows:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he proved guilty …”
The combined effect of both sections 35(4) and 36(5) of the Constitution is that the liberty of an accused is jealously guarded by the Constitution, irrespective of the nature or gravity of the offence charged. In other words a criminal suspect who is presumed innocent by the Constitution should not be unduly incarcerated by the police or a trial court. In Eda v Commissioner of Police, Bendel State (1982) 2 NCLR 219 the Court of Appeal held: ”when a person is arrested or detained by the Police in connection with an allegation on reasonable suspicion of a crime and they are actively pursuing investigation of the matter, the duty of the police is in appropriate case to offer bail to the suspect and for bringing him to court of law within 1 day or 2 days as the case may be no matter under whatever sections of the Criminal Procedure Act or Police Act 1967 the police may purport to be acting”.
It is trite law that there has to be a reasonable suspicion that a person has committed a criminal offence before he can be taken to court. The practice of arraigning suspect in court on the basis of a holding charge was declared illegal in Ogor & Ors v. Kolawole (1983)1 NCR 342. Also in the case of Akokhia v. Commissioner of Police, Lagos State (1984) 5 NCLR 836 the court decried the practice of preferring a holding charge against accused persons by the police.
Under the Criminal Justice (Release from Custody) Special Provisions Act (Cap C40) Laws of the Federation of Nigeria 2004, the Chief Justice and Chief Judges of the states are empowered to order the release of persons whose bail was refused and have been detained for a period longer than the maximum period of imprisonment prescribed for the offence. In Edwin Iloegbunam & Ors v. Richard Iloegbunam & Ors (2001) 47 WRN 72. The Appellants were arraigned on a holding charge of attempted murder before the Magistrate’s Court, Ogidi, Anambra State on 3/7/2000. The trial court refused the application for bail and ordered that the appellants be remanded in prison custody. Before the hearing date the Chief Judge of Anambra State visited the Onitsha Prisons on 27/9/2000 and ordered the release of the Appellants on bail.
Upon the release of the Appellants the Respondents reacted by filing an ex parte application at the Federal High Court, Lagos for the arrest of the Appellants. The application was granted and they were re-arrested and detained in prison custody. Dissatisfied with the order for their re-arrest and detention, the appellants approached the Court of Appeal for redress. In allowing the appeal the Court of Appeal held:
“That there is power in the Chief Justice of the Federation or any of the Chief Judges of the States to order the release of persons detained in prison custody in the exercise of their power under section 1(1) of the Criminal Justice (Release from Custody) (Special Provisions) Act Cap 79 Laws of the Federation of Nigeria 1990 is not in doubt. The exercise of that power by the Anambra Chief Judge would definitely constitute a different cause of action for the present respondents if they feel aggrieved by it. And an action founded on the exercise of that power which action is challenging the authority of the Chief Judge is one that should be brought before the High Court of Anambra State by virtue of Section 272 of the 1999 Constitution.”
Before granting bail to accused persons a trial court is enjoined to consider the (1) gravity of offence (2) the severity of punishment (3) the character of the evidence and (4) the rampancy of the offence. See Rex v. Jammal, 16 NLR 54; Majidadi v. Commissioner of Police (1984) 5 NCLR 847 and Dantata v. Inspector General of Police (1958) NRNLR 3. In Onu Obekpa v. Commissioner of Police (1981) 2 NCLR 420 it was held that a person accused of a criminal offence, other than a capital offence has a right to be released before trial in as much as the trial is going to last for more than two months.
It is submitted that the fundamental right of an accused person to personal liberty includes the right to bail pending trial. Specifically section 35(4) of the 1999 Constitution provides as follows:
“Any person who is arrested or detained in accordance with subsection (1)(c) shall be brought before a court of law within a reasonable time and if he is not tried within a period of;
a. two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail;
b. three months from the date of his arrest or detention in the case of a person who has been released on bail; he shall be (without prejudice to any further proceedings that may be brought against him) be released to either unconditionally or upon such conditions as are reasonably to ensure the he appears for trial at a later date.”
The presumption of innocence in favour of an accused person is guaranteed by Section 36(5) of Constitution 1999, which states as follows:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he proved guilty …”
The combined effect of both sections 35(4) and 36(5) of the Constitution is that the liberty of an accused is jealously guarded by the Constitution, irrespective of the nature or gravity of the offence charged. In other words a criminal suspect who is presumed innocent by the Constitution should not be unduly incarcerated by the police or a trial court. In Eda v Commissioner of Police, Bendel State (1982) 2 NCLR 219 the Court of Appeal held: ”when a person is arrested or detained by the Police in connection with an allegation on reasonable suspicion of a crime and they are actively pursuing investigation of the matter, the duty of the police is in appropriate case to offer bail to the suspect and for bringing him to court of law within 1 day or 2 days as the case may be no matter under whatever sections of the Criminal Procedure Act or Police Act 1967 the police may purport to be acting”.
It is trite law that there has to be a reasonable suspicion that a person has committed a criminal offence before he can be taken to court. The practice of arraigning suspect in court on the basis of a holding charge was declared illegal in Ogor & Ors v. Kolawole (1983)1 NCR 342. Also in the case of Akokhia v. Commissioner of Police, Lagos State (1984) 5 NCLR 836 the court decried the practice of preferring a holding charge against accused persons by the police.
Under the Criminal Justice (Release from Custody) Special Provisions Act (Cap C40) Laws of the Federation of Nigeria 2004, the Chief Justice and Chief Judges of the states are empowered to order the release of persons whose bail was refused and have been detained for a period longer than the maximum period of imprisonment prescribed for the offence. In Edwin Iloegbunam & Ors v. Richard Iloegbunam & Ors (2001) 47 WRN 72. The Appellants were arraigned on a holding charge of attempted murder before the Magistrate’s Court, Ogidi, Anambra State on 3/7/2000. The trial court refused the application for bail and ordered that the appellants be remanded in prison custody. Before the hearing date the Chief Judge of Anambra State visited the Onitsha Prisons on 27/9/2000 and ordered the release of the Appellants on bail.
Upon the release of the Appellants the Respondents reacted by filing an ex parte application at the Federal High Court, Lagos for the arrest of the Appellants. The application was granted and they were re-arrested and detained in prison custody. Dissatisfied with the order for their re-arrest and detention, the appellants approached the Court of Appeal for redress. In allowing the appeal the Court of Appeal held:
“That there is power in the Chief Justice of the Federation or any of the Chief Judges of the States to order the release of persons detained in prison custody in the exercise of their power under section 1(1) of the Criminal Justice (Release from Custody) (Special Provisions) Act Cap 79 Laws of the Federation of Nigeria 1990 is not in doubt. The exercise of that power by the Anambra Chief Judge would definitely constitute a different cause of action for the present respondents if they feel aggrieved by it. And an action founded on the exercise of that power which action is challenging the authority of the Chief Judge is one that should be brought before the High Court of Anambra State by virtue of Section 272 of the 1999 Constitution.”
Before granting bail to accused persons a trial court is enjoined to consider the (1) gravity of offence (2) the severity of punishment (3) the character of the evidence and (4) the rampancy of the offence. See Rex v. Jammal, 16 NLR 54; Majidadi v. Commissioner of Police (1984) 5 NCLR 847 and Dantata v. Inspector General of Police (1958) NRNLR 3. In Onu Obekpa v. Commissioner of Police (1981) 2 NCLR 420 it was held that a person accused of a criminal offence, other than a capital offence has a right to be released before trial in as much as the trial is going to last for more than two months.
Bailable Offences
In criminal proceedings an applicant can seek bail at three different stages i.e bail after arrest by law enforcement agents before arraignment; bail after arraignment but pending trial of the substantive charge and bail after conviction but pending the determination of an appeal filed against the conviction and or sentence before an appellate court. An applicant whose application for bail has been urged down by a High Court has a right of appeal to an appellate court for a reconsideration of the request.
Contrary to the general belief that some offences are not bailable I wish to submit that there is no offence under the criminal and penal codes that is not bailable. It is within the discretion of a trial court to admit an accused person to bail once there is assurance that he/she will attend court for trial. But the discretion must be exercised judicially and judiciously. In M.K.O. Abiola v. Federal Republic of Nigeria (1994)1 NWLR PT 370 Pg 155 it was held that a person charged with a capital offence may be admitted to bail depending on the circumstances of the case. Accordingly, the Appellant who was facing a charge of treason was admitted to bail in liberal terms.
In Ibori v. Federal Republic of Nigeria (2009) 3 NWLR (PT 1127) 94 at 106 it was held by the Court of Appeal that “no matter how seemingly serious, grave, heinous or unconscionable an alleged offence or offences committed by an accused person might look, he is still entitled to that presumption as an article of faith and a matter of right guaranteed by the Constitution.” In Abacha v. The State (2002) All NLR 1 at 10 the Supreme Court held that “it is not unusual to grant bail in capital offences or where the Applicant has been convicted and sentenced and his appeal is pending. This can only be done when exceptional circumstance is shown”.
In criminal proceedings an applicant can seek bail at three different stages i.e bail after arrest by law enforcement agents before arraignment; bail after arraignment but pending trial of the substantive charge and bail after conviction but pending the determination of an appeal filed against the conviction and or sentence before an appellate court. An applicant whose application for bail has been urged down by a High Court has a right of appeal to an appellate court for a reconsideration of the request.
Contrary to the general belief that some offences are not bailable I wish to submit that there is no offence under the criminal and penal codes that is not bailable. It is within the discretion of a trial court to admit an accused person to bail once there is assurance that he/she will attend court for trial. But the discretion must be exercised judicially and judiciously. In M.K.O. Abiola v. Federal Republic of Nigeria (1994)1 NWLR PT 370 Pg 155 it was held that a person charged with a capital offence may be admitted to bail depending on the circumstances of the case. Accordingly, the Appellant who was facing a charge of treason was admitted to bail in liberal terms.
In Ibori v. Federal Republic of Nigeria (2009) 3 NWLR (PT 1127) 94 at 106 it was held by the Court of Appeal that “no matter how seemingly serious, grave, heinous or unconscionable an alleged offence or offences committed by an accused person might look, he is still entitled to that presumption as an article of faith and a matter of right guaranteed by the Constitution.” In Abacha v. The State (2002) All NLR 1 at 10 the Supreme Court held that “it is not unusual to grant bail in capital offences or where the Applicant has been convicted and sentenced and his appeal is pending. This can only be done when exceptional circumstance is shown”.
Commercialization of Bail.
In every police station in Nigeria it is boldly written that “bail is free”. But in actuality bail is sold as suspects are extorted before they are admitted to bail by the police. Although a detained suspect has the constitutional right to consult a legal practitioner police officers are very hostile to lawyers who turn up in police stations. In order not to frustrate the police from collecting bail fees from suspects lawyers are always advised to wait for their clients’ arraignment in court. Police authorities are not unaware of the unwholesome practice as no grant is made available to run any of the over 10,000 police stations in the country. The embarrassing phenomenon was confirmed by several divisional police officers in a recent survey conducted by the Punch newspaper where it was revealed that police stations are run from extortion of suspects and donations from generous members of the public.
Upon arraignment at the magistrates and area courts accused persons are made to pay for bail with the connivance of defence counsel. Whereas bail is granted in the open court it is approved in the chambers of some corrupt magistrates upon the payment of negotiated sums of money. There have been reports of frivolous charges deliberately filed in the courts by the police for the sole purpose of extorting money from “accused persons”. A number of lawyers and magistrates shamelessly participate in the fraudulent commercialization of the liberty of such innocent people.
A writer has acknowledged that we live in an era of the “marketizaton of everything”. Hence the Lagos State government has monetised bail in total disregard of the rising inequality in the society.
Thus, section 116(2) of the Administration of Criminal Justice Law, 2011 provides that, “The Court may require the deposit of money or any other security as specified by the Court from the Applicant and/or his surety before the bail is approved”. (Michael J. Sandel: What Money Can’t Buy Penguin Books, 2012 P. 203: The Moral Limits of Markets.
The application of the law by magistrates has forced many indigent criminal suspects to remain behind bar on account of their inability to provide monetary security.
In every police station in Nigeria it is boldly written that “bail is free”. But in actuality bail is sold as suspects are extorted before they are admitted to bail by the police. Although a detained suspect has the constitutional right to consult a legal practitioner police officers are very hostile to lawyers who turn up in police stations. In order not to frustrate the police from collecting bail fees from suspects lawyers are always advised to wait for their clients’ arraignment in court. Police authorities are not unaware of the unwholesome practice as no grant is made available to run any of the over 10,000 police stations in the country. The embarrassing phenomenon was confirmed by several divisional police officers in a recent survey conducted by the Punch newspaper where it was revealed that police stations are run from extortion of suspects and donations from generous members of the public.
Upon arraignment at the magistrates and area courts accused persons are made to pay for bail with the connivance of defence counsel. Whereas bail is granted in the open court it is approved in the chambers of some corrupt magistrates upon the payment of negotiated sums of money. There have been reports of frivolous charges deliberately filed in the courts by the police for the sole purpose of extorting money from “accused persons”. A number of lawyers and magistrates shamelessly participate in the fraudulent commercialization of the liberty of such innocent people.
A writer has acknowledged that we live in an era of the “marketizaton of everything”. Hence the Lagos State government has monetised bail in total disregard of the rising inequality in the society.
Thus, section 116(2) of the Administration of Criminal Justice Law, 2011 provides that, “The Court may require the deposit of money or any other security as specified by the Court from the Applicant and/or his surety before the bail is approved”. (Michael J. Sandel: What Money Can’t Buy Penguin Books, 2012 P. 203: The Moral Limits of Markets.
The application of the law by magistrates has forced many indigent criminal suspects to remain behind bar on account of their inability to provide monetary security.
In Femi Falana v Attorney-General of Lagos State (Unreported) Suit No: ID/79M/2010 the constitutional validity of the posting of monetary security to entitle a criminal suspect to bail was challenged at the Lagos High Court. Upon hearing the case the learned trial judge upheld the objection of the respondent that the claimant lacked the locus standi to institute the action. It is however doubtful if the court paid due regard to the case of Eyu v. The State (1988) 2 NWLR (PT 78) 602 at 612 where Oguntade JCA (as he then was) held:
“…Since there is a presumption of innocence in favour of an accused, it seems to me odd and oppressive that the Appellant in this case had been called upon to deposit the sum of ¦ 400,000,00k as condition for bail. Is it not possible she may at the end be found not guilty of the offence? Why ask her then to deposit that very sum she was alleged to have received under false pretences? If the sole purpose of granting bail is to enable an accused come back to take his trial. I do not see that it is necessary to introduce a test of pecuniarily to attain that end. For even an accused who is able to deposit ¦ 400,000,00k may still jump bail ….’’
“…Since there is a presumption of innocence in favour of an accused, it seems to me odd and oppressive that the Appellant in this case had been called upon to deposit the sum of ¦ 400,000,00k as condition for bail. Is it not possible she may at the end be found not guilty of the offence? Why ask her then to deposit that very sum she was alleged to have received under false pretences? If the sole purpose of granting bail is to enable an accused come back to take his trial. I do not see that it is necessary to introduce a test of pecuniarily to attain that end. For even an accused who is able to deposit ¦ 400,000,00k may still jump bail ….’’
In Mathas Onuigbo v. Commissioner of Police (1995) NWLR (PT 34) the Court of Appeal declared illegal the demand for deposit of N600 cash attached to the Appellant’s bail. In Oluwole Makinde v. The State (Unreported) Suit No: SC/8/1988 the Supreme Court equally set aside the condition of N1 million deposit in the Central Bank, Kano Branch or a bank guarantee of N1 million imposed by the Court of Appeal for the securing the bail of the Appellant.
In view of the settled position of the law on cash deposit for bail it is submitted that Section 116(2) of the Lagos State Administration of Criminal Justice Law is illegal, unconstitutional, null and void as it is inconsistent with Sections 35(4) and 36(5) of the Constitution. It ought to be expunged from the law by virtue of Section 1(3) of the Constitution. I am in full agreement with Abdu Aboki JCA when he opined that:
“It is improper to impose unnecessary and unfulfillable conditions of bail outside the provisions of the law on an accused person to the point of almost rendering the bail nugatory. Bail applications should not be refused indirectly in case of bailable offences or where bail is automatic in case of simple offences or offences punishable with less than three years imprisonment by imposing conditions such as letters of recommendation from sureties’ place of work or tax certificate, three months pay slips from sureties’ place of work. Grants or original Certificates of Grants or original Certificates of Occupancy by sureties in Court and other harsh requirements.” (Justice Abdu Aboki, JCA, Fair Hearing and Bail in NJI Law Journal, 2009 P. 58).
Bail for Accused Persons in Corruption Cases
In line with their statutory duties the anti-graft agencies have filed criminal charges against former governors, former ministers, serving legislators and other politically exposed persons. But as soon as the suspects are arraigned in court they are remanded in custody for a few days. Once they are granted bail they apply for their passports to enable them to travel abroad either to visit members of their families or to honour medical appointments.
Thereafter, they proceed to challenge the jurisdiction of the court or the competence of the charge or the venue of the trial. If the decisions of the trial courts are not in their favour they promptly file interlocutory appeals and ask for stay of proceedings before the trial court or the Court of Appeal or the Supreme Court pending the final determination of such appeals. By the time the appeals are determined which may take up to 10 years or more, the trial judge may have retired while the witnesses may have lost interest in the case.
In a display of class solidarity the Economic and Financial Crimes Commission is in the habit of charging politically exposed persons and other influential criminal suspects to court with money laundering which attracts a maximum punishment of two years imprisonment or payment of fine. Even though the evidence in support of the charges discloses economic sabotage of monumental proportion such highly placed suspects are ordered by the trial courts to be remanded in the comfortable cells of the Economic and Financial Crimes Commission for a few days pending the hearing and determination of their bail applications. However, ordinary Nigerians who are charged with fraud, stealing, obtaining by false pretences and other economic and financial crimes are hardly granted bail by the courts. Even when bail is granted to them they are not able to meet the conditions which are usually tied to property. In the process such defendants may remain behind bar throughout the duration of the trial.
But when it comes to cases of economic and financial crimes involving grand corruption the courts have always waxed eloquent in defending the fundamental rights of accused persons to personal liberty. Not only have they been admitted to bail in liberal terms the passports of such influential accused persons have been released to enable them to travel abroad to visit their family members or attend business meetings. In Ibori v. F.R.N. (2009) 3 NWLR (PT 1127) 94 at 104-105 the Court of Appeal held:
“The scenario painted by the 1st Respondent is better appreciated if the Applicant was still in prison custody, but he is not; he was admitted to bail on the 11th of February 2008, and has since been treading the Nigerian soil and breathing the Nigerian air as free as any innocent man – See Saidu v. State (1982) 1 NCR 89; (1982) 4 SC 41. If we buy into the 1st Respondent’s argument, it would mean that an accused person, who is on bail and presumed innocent, is still confined to the prison of Nigeria. He would then wear the tag and toga of a criminal, who should never leave the country for fear that he would be arrested in another country. How preposterous; the applicant is already on bail, and merely wants his passports released to him so that he can travel and see to his health and other personal matters, and I do not see why he should be denied.”
Bail in Corruption Cases
Before the Ibori case the Court of Appeal had refused to grant applications for bail in serious cases of economic and financial crimes. For instance, in rejecting the appellant’s application for bail in Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (PT 708) 171 the Court held that “If there is a reasonable suspicion that a person has committed an offence his liberty may be impaired temporarily. In the same vein, a person’s liberty may be tampered with so as to prevent him from committing an offence. In short it is clear that no citizen’s freedom is absolute. The freedom or liberty of a citizen ends where that of the other man starts.”
In that case, while enjoining judges to strive to operate the law for the attainment of social engineering Fabiyi JCA (as he then was) said “Nigerian judges do not operate in utopia. We operate in Nigeria. And no Nigerian judge can rightly claim he has not heard that Transparency International rated our nation as the most corrupt in the whole universe in the year 2000. This is ear-aching. Should judges, in the prevailing circumstances, pat Advance Fee Fraud accused persons on the back under the cloak of human rights? I think not.”
In Nwude v. Federal Republic of Nigeria(supra); Ofulue v. Federal Republic of Nigeria (2006) EFCLR 100; Anajemba v. Federal Republic of Nigeria the Court of Appeal dismissed the bail applications filed by the Appellants. The progressive stand was endorsed by the apex court in Attorney-General, Abia State v. Attorney-General of the Federation (2006) 16 NWLR (PT 1005) 265 at 389 when Tobi JSC warned every potential treasury looter to desist from his nefarious activities as “the Independent Corrupt Practice and Other Offences Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) are watching him very closely and will, without notice, pounce on him for incarceration after due process.”
It is significant to note that the refusal of bail to such influential criminal suspects at the material time forced many of them to plead guilty to the charges pending against them which led to their conviction. But as a result of the dangerously liberal disposition of the Court of Appeal in the Ibori case bail has become automatic for everyone charged with corruption and other economic and financial crimes notwithstanding the gravity of the offence and the implications for the national economy. In view of the fact that corruption has serious negative implications for the national economy and the development of the country the Court of Appeal ought to review its stand on bail with respect to corruption cases.
After all, notwithstanding the liberal judicial attitude to applications for bail filed by politically exposed persons charged with serious corruption cases the courts have not hesitated to deny bail to persons charged with treason on account of their alleged involvement in civil disturbances. See the cases of Faseun v. A.G.F (2007) 11 WRN 87 and Gani Adams v. AGF (2006) 44 WRN 46. In Dokubo Asari v. F.R.N (2007) 30 WRN 1 at 38 the Supreme Court held:
“Where national security is threatened or there is the real likelihood of it being threatened human rights or the individual right of those responsible take second place. Human rights or individual rights must be suspended until national security can be protected or well taken care of. This is not anything new. The corporate existence of Nigeria as a united, harmonious, indivisible and indissoluble sovereign nation, is certainly greater than any citizen’s liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individual’s liberty or right may not even exist”.
The Way Forward
i. As every person in Nigeria is constitutionally entitled to personal liberty it is no longer permissible for law enforcement agencies to detain any criminal suspect without filing a charge against him within 24 or 48 hours. Under the new human rights legal regime in Nigeria the indiscriminate arrest and detention of persons without trial should be taken up by the NBA. Like the human rights bodies the NBA should take advantage of the provisions of the Fundamental Rights Enforcement Procedure Rules, 2009 to institute actions in the appropriate High Courts to secure the enforcement of the fundamental rights of several people who are illegally arrested and detained by the police and other law enforcement agencies.
ii. The NBA should direct each of its 100 branches to be in regular touch with the NGO human rights bodies and the State Chapter of the National Human Rights Commission, the Legal Aid Council and the Office of the Public Defender with a view to having a coalition to challenge illegal arrest and detention of the Nigerian people.
iii. The NBA should lead a campaign for the payment of monetary damages awarded by courts in favour of persons whose fundamental rights are violated by the police and the security forces. In the case of Fukura v Attorney -General of the Federation the sum of N100 million was awarded against the defendant by the Borno State High Court. Similarly, the Lagos high court ordered the Defendants to pay N120 million to the two applicants in Okeke & Anor v Rear Admiral Around and Others. With respect to the illegal military invasion of Odi in Bayelsa State and Zaki Biam in Benue State the Federal High Court has awarded the damages of N137 billion and N42 billion respectively against the Federal Government. It is my belief that if the aforesaid judgment debts have been paid the Federal Government would have been compelled to arrest the incessant abuse of fundamental rights of Nigerians by law enforcement agencies.
iv. The Nigerian Bar Association should also liaise with the Body of Attorneys-General with a view to formulating some guidelines for dealing with the arrest and detention of criminal suspects. For instance, most police stations are always crowded with detainees who arrested for wandering when the Vagrancy Law was abolished in 1986. The police should be restrained from applying a repealed law to violate the fundamental right of poor people to liberty.
v. Lawyers in the federal and state ministries of justice should draw the attention of the police and other law enforcement agencies to the case of Lufadeju v Johnson which requires that suspects whose cases are under investigation be taken to court for remand orders which are subject to regular reviews until the conclusion of investigation and the filing of charges in court.
vi. The NBA should sanction its members who collude with law enforcement agencies to arrest and detain persons who breach contracts. In other words lawyers should be discouraged from turning civil cases to financial and economic crimes so as to enable the EFCC to arrest and detain innocent persons.
vii. The NBA should monitor the office of the Director of Public Prosecution in each to ensure that the writing of legal advice in respect of criminal cases is not delayed to prevent abuse of the rights of suspects to liberty.
viii. The NBA should invite the Chief Justice and Chief Judges to visit the prisons whenever it is established that awaiting trial inmates ought to be released from prison custody. Such visits should be based on information officially sourced and obtained from the prison management.
Conclusion
In concluding this paper, I wish to urge Nigerian lawyers to take more than a passing interest in the political economy of the country’s neo-colonial capitalist system which is firmly rooted in injustice. Nigerian lawyers and judges should appreciate that majority of indigent criminal suspects cannot enjoy the right to bail as long as it tied to money and property. The members of the legal profession should stop promoting the legal shibboleth of equality before the law. In his keynote address at the 1985 Annual Conference of the Nigerian Bar Association held in Port Harcourt, River State the Late Dr. Aguda exposed the myth of equality before the law when he said:
“To the best of my knowledge and experience there is nothing like equality before the law, at least not the way the law is operated today. It is nothing but a myth created by our political rulers and the lawyers to give cold comfort to the ‘common man’, so that they, that is our political rulers and the lawyers, can have a peace of mind. But the earlier we disturb that peace of mind the better…
We cannot say that we are administering law and justice and shut our eyes to social and economic injustice around us. We must struggle to ensure that none of our citizens suffer unnecessary from want of food, adequate housing, and clothing. It is only after we have succeeded in this regard that the common man can hope to receive justice from us and the law we practice.”
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