By Innocent Anaba, Henry Ojelu & Onozure Dania
Justice Ijeoma Ojukwu of a Federal High Court sitting in Abuja, had on October 4, 2019 handed down what has now turned out to be known as iron bail on Omoyele Sowore, convener of #RevolutionNow and Sahara Reporter Publisher and his colleague, Olawale Bakare.
Sowore was granted a N100million bail with two sureties, who must be resident in Abuja and also have landed property in the city.
The preferred against Sowore include conspiracy to commit treasonable felony, contrary to section 516 of the criminal Code Act Cap C38 Laws of the Federation of Nigeria, 2004, and punishable under the same section of the Act.
In this edition of Law and Human Rights, lawyers react to the bail conditions.Excerpt:
Seyi Sowemimo SAN
Treason is grave offence which could result in a death sentence and for this reason it is legitimate for the Court to impose stringent bail conditions. The stringency of the conditions will depend on the strength of the evidence which appears to be available to establish the offence.
Ebun-Olu Adegboruwa, SAN
Bail is always a matter of discretion for the judge handling the case based on certain established legal principles. However, section 165 of the Administration of Criminal Justice Act prescribes that the terms of bail to be granted should be liberal and not excessive. Once the terms of bail are too stringent or excessive, then it amounts to a denial of bail. In Sowore’s case, it all depends on the facts presented before the court during the argument of his bail. Generally however, bail conditions should not be commercialized or made or be too onerous as that in itself may become a punishment.
“We need to understand the purpose or the purport of bail in criminal proceedings. It is to ensure the attendance of the Accused Person in the subsequent criminal proceedings. If we agree on that, it then means that giving onerous bail conditions by any judge is prejudicial. By imposing burdensome bail conditions, the judge is assumed to have discarded the presumption of innocence that the constitution guarantees to an accused person.
“We agree that bail to a person accused of heinous crimes like treason and treasonable offences is at the discretion of the judge but it must be emphasized that the bail conditions should not amount to denial of bail. In my view the bail condition imposed by the judge in Sowore’s trial, is pure denial of bail for it appears impossible to be complied with. It is disproportionate and amounts to a denial. The legal team is advised to seek for a variation of the onerous bail condition as imposed. Two reliable sureties with means of livelihood who are within jurisdiction should suffice if you ask me.”
“Generally conditions imposed on bail are designed to achieve only one purpose- guarantee the attendance of the defendant in court to face his trial. Bail is not expected to be punitive. The conditions attached to the bail appear punitive and counsel is entitled to apply for a review of the bail conditions. I am reluctant commenting on the merits of the case since same is subjudice.”
“As far as criminal jurisprudence is concerned, granting or refusal of bail is solely at the discretion of the court having considered the facts and
circumstances of the case before the court. Every judge is in control of its court. What a court may refuse another may grant it depending on the angle it is viewed. There is no hard and fast rule to conditions of bail since the constitution of Nigeria presumes every defendant to be innocent until otherwise proved. This principle is always considered by our judges.
“On the aproportionate of the bail granted to Sowore and the charges he faces before the court, it is an issue before the court which in the interest of justice, is subjudice. Whatever is before a competent court will be resolved by either the lower or higher courts. There are various options available to the defendant which his legal team will follow. There are differences between filing of a charge against defendant and proving of the charges beyond reasonable doubt. That must have prompted presumption of innocence in our ground norm.”
“This is not a bail conditions but severe punishment. The jurisprudential basis behind conditions attach to bail by the court is to secure the attendance of the accused person in court for his criminal trial. When a court begin to include in its bail ruling conditions such depositing N100m in a designated account such as it was witnessed in Sowore’s case, it has defeated the intention behind attaching conditions to bail. The courts in Nigeria should be above board and stop dancing to the whims and caprices of the executive in the discharge of their constitutional duties. I am of the view that the counsel to Sowore should approach the court for a review of the conditions attach to his bail.”
“The gravity of the offence charged is just one out of other conditions a court takes into cognisance in granting bail. Even though treasonable felony is a capital offence, at this stage, it is a mere allegation as there is a presumption of innocence of the defendant as enshrined in the constitution. The essence of Bail is to ensure the attendance of the defendant in court to stand his trial. Clearly Justice Ojukwu is being careful not to be seen as having refused bail to Sowore. But that was exactly what she did. Recall the stories that justice Taiwo who had earlier granted Sowore bail was to appear before the NJC. A bail term of N100 million deposit is very stringent and aimed at refusing Sowore bail. His legal team is set to apply for a variation of the bail term. The judge clearly refused bail but does not want to do so clearly because she wants to be pro government.”
“Certainly, while I am not of the subscription to the perception, in the legal community, of Justice Ijeoma Ojukwu’s bail conditions given to Omoyele Sowore as being draconian, same cannot be said of their being stringent, bearing in mind community appraisal of the principles guiding bail grants and the high standard of proof beyond all reasonable doubts, among others, as required in criminal trials of this nature.
“Such guiding principles, as captured and encapsulated in the long and unbroken chain of Supreme Court decisions, most of which are mentioned hereunder, principally include: (i) The nature of the charge; (iI) The strength of the evidence which supports the charge; (iii) The previous criminal record of the defendant, if any; (iv) The possibility that the defendant may not submit himself for trial; (v) The likelehood of the defendant’s interference with witnesses, or may suppress any evidence that may incriminate him; and (vi) The likelihood of further charge(s) being brought against the defendant.
“Due marriage of the above guiding principles to the overall facts and circumstances of Sowore’s case gives birth to fair and reasonable conclusion that the bail conditions, particularly in the area of requirement of cash deposit of N100 million, slightly fail legal proportionality test, and went beyond prevalent constitutional thresholds, unlike Justice Taiwo’s earlier liberal bail conditions, which provided perfect response to the charge, which is clearly unworthy of the papers upon which it was drafted, for being, in law, mere sham, simulacrum and stratagem.
“I do not subscribe to the further speculation within legal circles, that the Federal Government’s flagrant disobedience of Justice Taiwo’s said bail orders, and it’s added petition, against His Lordship, to the National Judicial Council, NJC, forced Justice Ojukwu’s hands and tail between it’s legs, in the grant of the apparently stringent bail conditions under reference.”
It is outrageous to say the least. The quality of evidence in the proof of evidence filed by the prosecution is a factor for the court to consider before granting or refuse. So, it is not enough to labe the offence Treason, Armed Robbery or Murder. If the proof of evidence does not show anything near the crime alleged, the court must give light or liberal terms. You can even release him to his lawyers or one or two reliable sureties. Sowore, given the facts of the case cannot even sustain a revolution against a local government in Lagos State. Where are the revolutionaries. He and few journalists. Is this the way they plan revolution. It is unfortunate. Judiciary in this case did on t uphold the tenet of constitutionalism. They can apply for variation of the terms before the sane court or at the court of appeal.
The bail is highly unreasonable. Our superior courts have held times without number that granting bail to an accused person on onerous terms is like serving a delicious meal on dining table to a hungry man and then hold his hands from eating it. The condition of submitting his passport to d court is enough but adding deposit of fifty million Naira is out of it, more so that d offence committed is not a financial or economic crime. This act is a bastardisation of the concept of bail itself because bail is granted to enable the accused attend his trial.
Generally speaking also, conditions of bail should not be difficult for the purpose of punishing the accused.