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And so to bail

By Awa Kalu

The events of the past few weeks or even farther make it compelling to examine the presently confusing ramifications of the question of bail. Particularly worrisome are the ‘conditionalities’ (to borrow a one-time cliché) for granting bail.

Quite frankly this issue was prompted by a friend and colleague who asked me to dilate on the frontiers of bail to erase any cobwebs that may have crept into the field at issue following the warped conditions that now attach to the exercise of discretion to grant bail.

In complete sarcasm, my friend quipped that time has come when courts will begin to impose funny conditions such as: that the accused must find a thousand virgins who are not less than fifty years old to stand as sureties; or five hundred one-eyed men who must not be less than one hundred years of age; or that the surety must be at least ninety years of age and must bring his grandparents alive to court for verification by the Registrar.

To complete his joke my friend thought that we may not be far from a date when only one-legged sureties would be accepted by our courts. This background certainly arose from the rather rampant conditions imposed by our courts before accused persons in high profile cases are released on bail.

These days, it is either that the surety or sureties must own landed property in Abuja, the Federal Capital Territory, or must be Civil Servants not less than the rank of a Director or Permanent Secretary. This species of surety must be resident in Abuja.

Yet another favoured species of surety who need not be resident in Abuja is Traditional Rulers who, nonetheless, must be ‘first class’ grade in their respective states.

What makes the classes of sureties that are now deemed eligible for suretyship in criminal litigation worrisome is that many persons and personalities that may ordinarily be good material are left out of the loop.

For instance, despite their longstanding loud and sustained protestations women are still not easily favoured to stand as sureties for accused persons who are released on either administrative or judicial bail. Nobody has ventured any well-structured and convincing argument for this discrimination other than prejudice or chauvinism.

In addition, nobody has explained in clear terms why Traditional Rulers and Civil Servants are the most suited to stand as sureties for accused persons seeing that from several angles, both classes are liable to be victimised in certain circumstances.

A career Civil Servant for instance, would not readily present himself as surety if the applicant for bail appears to be heavily out of favour, when the press dimensions are taken into account.

Similarly, if a system of Traditional Rulership depends on the whims and caprices of the political apparatchik, as is the case in some states, then no Traditional Ruler would like to have his Certificate of Recognition withdrawn for standing as surety to an enemy of the people.

These are the danger signals that arise from day to day in respect of criminal proceedings because of the rather stringent and preposterous conditions that now follow a successful application for bail.

It is likely that offences such as treason, treasonable felony, robbery with firearms (otherwise known as ‘armed robbery’), murder etc which ordinarily elicit reluctance from the courts in matters of bail, are going out of fashion or our courts are getting frightened or intimidated by the level and pitch of offences connected with corruption.

If a person is alleged to have swallowed or stolen billions of naira or dollars as the case may be, that would be sufficient to raise the red flag, and the would-be applicant would automatically make inquiries about sleeping arrangements and conditions in EFCC custody! Accused persons awaiting trial have been known to prefer sleeping in prison where regular prisoners hail you for touching their lives and weep loudly when you finally secure your bail.

What is fashionable these days is that no court wants to act on an oral application for bail. Judges, who are now wise from a gossip- and suspicion-ridden society, prefer that an application for bail in the so-called high-profile cases must be in writing even though no law says so.

There is indeed no law which prescribes that the bail application must be in writing. What appears necessary is that the Judge ought to make a minute of the application in his record and anything said for or against the grant of bail must be meticulously recorded.

The present experience of criminal law practitioners is that during open arraignment, the Judge refuses to listen to an application for bail unless it is filed in the Registry and served on the Prosecution.

Another conventional wisdom is that no Prosecutor will fail to oppose bail and opposition is always said to be ‘vehement’ and such vehemence may lead to the filing of a very copious ‘Counter Affidavit’ and ‘Further Counter Affidavit’ as the case may be. Reading through some of these processes often leads to the impression that an overt or subtle attempt is made to bias the mind of the Judge even before evidence is led in proof of the weighty accusations levelled against the applicant in the charge.

The opposition to bail is usually mounted in such a debilitating manner that the unwary would not be mindful of the presumption of innocence carefully embedded in our constitution. There are cases in which some judges have suggested that there are circumstances in which this presumption may be less than a protection for the accused/applicant.

The level of what was elsewhere called ‘malicious propaganda’ against persons charged with corruption and financial crimes in particular is fingered as the purveyors of the high-wire intrigues associated with the grant of bail. Thus, before an accused person is arraigned in court, he is first made to spend time in custody, which on occasions runs into several days or weeks.

After the arraignment, he/she is returned to custody to enable an application for bail to be filed an argued. In addition, the Judge would again adjourn for his Ruling even though from the word go, almost all Judges know that a custodial pre-trial disposition would be manifestly unreasonable in non-capital offences.


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