By Afe Babalola
he implication of the grant of bail on heinous conditions is that the right of an accused person to presumption of innocence is very much whittled down
LAST week, I discussed the entitlement of Nigerian citizens to liberty, and particularly when charged with the commission of an offence, the right of the person to presumption of innocence and bail. This week, I intend to discuss the rather unfortunate trend in the prescription of very harsh, near impossible conditions imposed by judges in our courts for the grant of bail. I will equally give a brief highlight of what operates in other jurisdictions in terms of bail and conditions for its grant.
Grant of Bail on onerous conditions
Beyond the requirement of a written application before the grant of bail and its seeming impropriety, another saddening occurrence is the grant of bail on conditions which are rather difficult or near-impossible to fulfil. In discussing this, I intend to put the case of Mr. Omoyele Sowore in proper perspective.
On Friday, October 4, 2019, the Federal High Court granted bail in the sum of N100m bail to Sowore with two sureties, who must be resident in Abuja and also have landed properties in the city. As part of the bail conditions, the court further ruled that the sureties must deposit the original copies of their properties document with the court registry, adding that one of the sureties must also deposit N50 million with the court pending the determination of the case.
Besides this, the judge further barred Sowore from travelling outside Abuja and asked him to deposit his passport with the court. Unsurprisingly, it was reported that counsel to Sowore noted that: “Those conditions are not conditions that can be fulfilled. We have made contacts and explored all channels, clearly, nobody is willing to be a surety for that amount. That amount of money is not available, it is not realistic under the current economic situation.”
Without a doubt, the bail conditions stipulated by the Court for the release of Sowore are not only unrealistic but are not borne out of the proper consideration of the economic realities of the country. Luckily, there is provision for variation of bail conditions under our laws and, therefore, Sowore’s lead counsel, Femi Falana, SAN applied for variation of the conditions.
In applying for variation, counsel cited the Court of Appeal decision in Col. Sambo Dasuki’s case where the trial court imposed similar stringent conditions which were later upturned by the Court of Appeal which described such bail conditions as excessive. Based on this, the Federal High Court set aside the earlier order directing one of Sowore’s sureties to make a security deposit of N50 million.
Another case that readily comes to mind is Maina’s case, the former chairman of the defunct Pension Reform Task Team, who was admitted to bail in the sum of one billion naira. The court, in granting him bail, further ruled that the defendant must produce two sureties who must be serving senators and those senators must not be standing any criminal trial in any court in the country.
The court equally ruled that the two senator-sureties must give a bond of N500 million each and must always be in court with the defendant at each adjourned date. Needless to say, such conditions are, to say the least, rather punitive in nature.
The implication of the grant of bail on heinous conditions is that the right of an accused person to presumption of innocence is very much whittled down. This is particularly so because a defendant who, though granted bail, cannot perfect the condition of the grant of the bail and continues to languish in prison custody in perpetuity without a conviction of the offences charged – a pyrrhic victory. A writer once noted that bail conditions should not cost an arm and a leg and should not be punitive: the purpose of bail conditions is simply to ensure that an accused person is available to answer the case brought against him every time he is needed in court.
The grant of bail on harsh conditions cannot be within the spirit and intendment of the Constitution which safeguards the right to liberty and freedom of movement of Nigerians, and the provisions of the Administration of Criminal Justice Act, 2015 which Section 165 (1) provides that: “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.”
In fact, the overcrowding of the Nigeria prisons can be attributed to harsh bail conditions handed out by our jurists. The court may request that only senior officers in the civil service must be provided to stand as surety. This presumption that everybody can get somebody in the civil service to stand as surety is clearly an unfair one. Clearly, not everyone can find persons who meet these criteria to stand as surety for them.
The consequence, therefore, is that the prisons are filled with inmates awaiting trial and those whose bail conditions are yet to be perfected. Unfortunately, many of these inmates end up serving the entire duration of the prescribed imprisonment term without having actually been found guilty of the crimes for which they are standing trial.
As far back as the 2007 Conference of Nigeria Judges, the then Chief Justice of Nigeria, Idris Legbo Kutigi berated Nigerian judges for what he called “extravagant and ridiculous” bail conditions. Also, in 2009, at the All Nigerian Judges Conference in Abuja, Chief Justice Kutigi revisited his condemnation in even harsher tones, describing high bail conditions as “scandalous and absurd”. Regardless, this unfortunate trend is yet to be reversed.
Sometimes, the court may grant bail on the condition that one or more of the sureties must be a director in the Federal Civil Service and to enter recognizance in several millions of naira. In this regard, a writer once noted: “Does this not raise a question where the director is supposed to get that amount of money and property from, looking at his take home pay?”
As noted, the entire idea of bail is such that a person standing trial, presumed innocent by law, does not lose his right to liberty in the absence of any verdict pronouncing him guilty of the offence(s) charged. It is, therefore, desirable to create a major reform in our criminal justice system to ensure that the liberty of citizens is not sacrificed on the altar of onerous bail conditions. In so doing, one may have due regard to what operates in other climes.
Bail system in other jurisdictions
In the United States, in New York, criminal defendants ordinarily would see a judge within 24 hours after their arrest. A judge may release a defendant with a promise to return for his trial, or take the severest option, which is to detain a defendant in jail, if deemed a flight risk until a trial verdict or plea deal.
New York judges can choose from nine different types of bail, some of which require no upfront payment. Typically, however, judges favour cash bail, which calls for immediate payment to the court. If the court’s requirements are met, the bail money is returned to whoever put it up.
In setting bail conditions, Judges weigh a variety of factors, including the financial resources of the accused and the recommendation of prosecutors – and those who cannot afford bail must choose between jail and reliance on a commercial bail bondsman. The import of the United States laws – the Eighth Amendment to the U.S. Constitution – is that bail should not be used primarily to raise money for the government, and it is also not to be used to punish a person for being suspected of committing a crime.
It is instructive to have due regard to the American bail system which considers the recommendation of stakeholders – prosecutors, defence, et al – as well as the financial capacity of the defendant, in the determination of bail conditions, principally to avoid setting punitive, unrealistic bail terms impossible for defendants to fulfil. This will, no doubt, give an assurance that the Courts lend credence to the right of right of the citizenry to right of freedom.