By Awa Kalu

VEry recent developments in our criminal justice system have led quite a handful of stake holders to believe that there is a subtle shift in the policy aspect of allowing persons charged with an offence to remain free until their cases are judicially determined. The first point to make is that the predominance of a particular crime has always elicited a response from the legislature- whether civilian or military.

Accordingly, when the aftermath of the civil war brought in its wake an intolerable and escalated level of armed robbery, the military hierarchy responded with pieces of legislation which prescribed the death penalty as punishment for convicts. In addition, execution was by firing squad and trial was by a special tribunal.

There is no need to emphasize that bail was not an option and remand was an inevitable consequence. Armed robbers were so dreaded that even in the ordinary social relationships, persons whose means of livelihood was uncertifiable were often put away on flimsy allegations of armed robbery. Some commercial disputes and land matters were maliciously but temporarily resolved by one side branding the opponent(s) as armed robbers.

Treasonable felony

Armed robbery and treason or treasonable felony were allegations which held sway during the military era. Of course, let us not lose sight of a heightened level of obtaining by false pretences (OBT) alias ‘419’. The offence became so widespread and prevalent that public outcry against its deleterious effect reached a crescendo.

Traffic in narcotic drugs and psychotropic substances led to the establishment of the National Drug Law Enforcement Agency (NDLEA) and the establishment of several miscellaneous offences tribunals for the hearing and determination of such offences. Military tradition would not tolerate anything less draconian for dealing with any offence that was considered heinous.

Shift in range of offences: The return to civil rule, without any shed of doubt, led to the shift in the range of offences that need the sledge hammer- Corruption and allied offences, comprising a heavy dose of financial crimes. Kidnapping and terrorism, including several frames insurgency have since joined the fray. The response by the Obasanjo administration was quite swift.

The promulgation of the Independent Corrupt Practice and Allied Offences Act which established the ICPC as a commission was followed by the enactment of the Economic and Financial Crimes Commission Act and the attendant establishment of another commission. In wrestling, there is a tag team-a combination of two or more wrestlers on either side to fight for a prize.

Perhaps the EFCC and ICPC were established as a tag team to wrestle corruption and allied offences but the effectiveness of both agencies will soon be gauged by the administration President Buhari which was voted into power on account of a firm belief by the public that the menace of corruption must be met head-on.

By the way, the legislative response by some states is to prescribe capital punishment for kidnapping. Terrorism has also been met with very stiff penalties. Corruption and allied offences attract a range of non-capital stipulations as punishment. Having made a brief introduction of the offences which have threatened our public peace since the end of the civil war, it is beyond dispute that from a legislative point of view, the framework has always been available for dismantling any regime of crippling offences.

The inevitable question: The inevitable question at this juncture is whether there is any reason why a person tainted with an allegation of crime concerning or arising from corruption, financial crimes and allied offences, must first be incarcerated before being released on bail, often on unfriendly terms? If anyone should cast their minds back to the arrests that followed the recent reforms in the banking sector, it would become doubtful whether any bankeras allowed to go home without a remand soon after arraignment.

Recourse to our extant laws and constitution

Even a feeble research would reveal that most of our former Governors and high profile political office holders, who were recently arraigned on allegation of corruption did not sleep in their houses (or mansions as the case may be) on the date of arraignment. The EFCC has often been amenable to granting administrative bail to its high profile alleged offenders, even though its “trademark” seems to require a cacophony of print and electronic press coverage of its major arrests and arraignment.

To cut the long story short, does the Constitution of the Federal Republic of Nigeria, 1999, as amended (The Constitution) or any statute for that matter for the time being in force, contemplate either in its letters or spirit, a two-tier approach to the administration of the bail requirement of our criminal justice system? I think not, but to enable our discerning readers to reach their legitimate and individual conclusions, a recourse to our extant laws and the Constitution, would seem inevitable.

Section 35(1) of the constitution provides for the fundamental right to personal liberty to the extent that: “Every person shall be entitled to his personal liberty and no personal shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law.” The Constitution in itself points in the direction of what it means “by a procedure permitted by law.”

Accordingly, subsection (4) of Section 35 to which reference has been made provides that: “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 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 proceeding that may be brought against him) be  released either unconditionally or upon  such conditions as are reasonable to ensure he appears for trial at a later date.”

Presumption of  innocence

Several sections of the Constitution indicate unequivocally that the liberty of the individual is not a matter to be trifled with and significantly Section 36(5) of the Constitution proclaims boldly that, “Any person who is charged with a criminal offense shall be presumed innocent until he is proven guilty …”

It is our very humbly held view that the presumption of innocence is one of the most important or fundamental provisions of the Constitution designed to protect a person against whom a crime is alleged from being pulverized by the might of the State. One is aware that in certain quarters there are very stringent calls for this presumption to be repudiated in matters concerning corruption, economic crimes and unjust enrichment.

However, as long as this presumption remains extant, it is to be borne in mind, that, in a long line of cases, the Supreme Court has preached that the approach to the interpretation of the Constitution should be, “one of liberalism” (See NafiuRabiuv. The State (1981) 2 NCLR 293 at 317).

The purveyor of the now hallowed approach of liberalism did “not conceive it to be the duty of this Court to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends”.

The view which can be canvassed generously is that the Constitution does not contemplate that a person who is presumed innocent should be put away capriciously. In that regard, statutory inclination is to clothe a Trial Judge or any other judicial officer for that matter, with the discretion to grant bail to an accused subject to well-known guidelines.

Thus, the brand new Administration of Criminal Justice Act, 2015, (following the Statutes which it repeals, i.ethe Criminal Procedural Act and The Criminal Procedure Code)makes provision for bail.

By Section 158 thereof, it stipulates that, “when a person is suspected to have committed an offence or is accused of an offence,  is arrested or detained, or appears or is brought before a Court, he shall subject to the provision of this part, be entitled to bail.” This recent enactment which came into force in the twilight of the Jonathan administration makes provision for bail even in cases where the accused is charged with a capital offense.

Capital offence

By virtue of Section 161 of the Act, only a Judge of the High Court can admit to bail, “a suspect arrested, detained or charged with an offence punishable with death … under exceptional circumstances”. Although the law reports are littered with well decided cases concerning bail, it appears that Bamiyi v.

The State (2001) 8 NWLR  (Pt. 715) 270 is in the frontline of advocacy for liberalizing the grant of bail.in Bamiyi, the Apex reasoned that, “The Trial Court has in most cases discretion to admit the accused person to bail pending trial. In the exercise of the discretion, the following are the most important ingredients which will guide the court,i.e:(a) the nature of the charge; the evidence by which it is supported; the sentence which by law may be passed in the event of a conviction; the probability that the accused will appear to take his trial”.

On the peculiar facts of Bamiyi, he was not granted bail but nonetheless, the case constructed an indestructible template for reviewing applications for bail. Many other cases bear out this position.

In M.K.O Abiola v. Federal Republic of Nigeria (1994) 1 NWLR (Pt. 370) 155, the Court of Appeal postulated much earlier, that, “since the court presumes in favour of the liberty of the subject and his innocence until found guilty, the onus is on the prosecution to show, in a given case, that an accused or applicant for bail is one that should be refused” (See alsoEyu v.The State (1988) 3 NWLR (Pt. 78) 602 at 610). Can all those engaged in the administration of criminal justice heed this advice?

Even in the bail application of one of the most vilified high profile accused (at the time) the Court of Appeal did not hesitate to lay down the principle that, “indeed in a criminal trial as long as an accused person has not previously jumped bail and subsequently delayed prosecution of the charges laid against him, he is entitled to protection under the Constitutional provisions which includes freedom of movement and presumption of innocence.

Thus, 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 matter of rights guaranteed by the Constitution”.

Criminal proceedings

Contrary toIbori, the events surrounding the recent criminal proceedings commenced by the Economic and Financial Crimes Commission (EFCC) against certain Ex-Governors of some states put the criminal justice system under public scrutiny. Ex-Governors MurtalaNyako of Adamawa State, IkediOhakim of Imo State, SuleLamido of Jigawa State and Timpre Sylva of Bayelsa state were brought before the Federal High Court within the same week.

While they are all on bail, it seems that Honourable JusticesAdemola and Kolawole did very well in epitomizing the spirit of liberalism which this brief article recommends. Honourable Justice Ademola granted bail to GovernorIkediOhakim the same day the bail application was granted and only a day after his arraignment.

By the same token, Honourable Justice Kolawole released on bail, Governor SuleLamido, whose bail application was not heard by His Learned  Judicial Brother (or Sister) sitting in the Kano Division. There are innumerable cases in which the grant of bail has either been delayed or realized on conditions which can cause alarm.

Traditional rulers are presently preferred as sureties just like persons who are public servants, landed gentry or money bags. It ought to be remembered that a surety who executes a bond in a given sum must be willing to extreat the bond when the accused person absconds or jumps bail. Should our public servants still in active service be placed in jeopardy of losing their career just to make bail conditions stringent? There questions and there are questions.

Irrespective of the intensity of public opinion, the tendentious posture of the prosecution (which makes a habit of opposing bail applications irrespective of the merits), the individual preference of the judicial personnel and the deleterious effect to fair hearing of trial by or in the press, bail should be available to those who can meet the conditions as set by the court – which of course ought to be liberal too. Let corruption be fought without hesitation but without destroying the foundation of liberty afforded by the Constitution.