Bailable and Non-Bailable Offenses Under the Nigerian Law
Introduction
Nigeria’s criminal justice system is built on a careful balance – the fundamental right to personal liberty, against the state’s mandate to preserve public order and ensure accused persons stand trial. To manage this balance, is the existence of bail. It protects people from unfair treatment and from being placed in custody before they are found guilty of an alleged offence.
Under the Nigerian law, offenses are segmented into bailable and non-bailable categories to guide law enforcement agencies and judicial officers on when release is guaranteed as of right and when it becomes a matter of judicial discretion.
1. Bailable Offenses – Bail as of Right
A bailable offense refers to a criminal charge of a less severe nature where the granting of bail is an absolute right. When an individual is arrested or charged with a bailable offense, both the police and the courts are under a statutory compulsion to grant bail. This is granted, provided the suspect fulfills reasonable recognizance conditions.
Examples of Bailable Offenses
Simple Assault: Unlawful physical contact or threats without aggravation.
Affray: Fighting in a public place that disturbs the public peace.
Simple Larceny/Theft: Minor theft offenses without the use of deadly weapons or violence.
Mischief or Minor Property Damage: Intentional destruction of property falling under misdemeanor thresholds.
Traffic Offenses & Minor Public Nuisances: Statutory infractions punishable by fines or short custodial sentences.
Legal Basis for Grant of Bail
The Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended)
Section 35(1) of the CFRN 1999: Guarantees the fundamental right to personal liberty.
Section 35(4) & (5) of the CFRN 1999: Provides that any person arrested or detained upon reasonable suspicion of having committed an offense must be brought before a court within a reasonable time. Reasonable time is defined as 24 hours where a court of competent jurisdiction is within a 40km radius, or 48 hours in other cases. If the individual is not tried within two months (or three months if not in custody), they must be released on bail unconditionally or upon conditions necessary to ensure their presence at trial.
Section 36(5) of the CFRN 1999: Establishes the constitutional presumption of innocence until proven guilty.
The Administration of Criminal Justice Act (ACJA), 2015
Section 30(1) of ACJA: Directs police officers to release a suspect on bail (with or without sureties). If it is impracticable to bring them before a magistrate within 24 hours, provided the offense is not punishable by death.
Section 162 of ACJA: Outlines the core framework by creating a strong presumption in favor of bail for offenses carrying custodial sentences. Stating that a defendant charged with an offense punishable with imprisonment for a term exceeding three years shall be released on bail unless specific disqualifying circumstances apply.
Section 163 of ACJA: Explicitly states that, where a defendant is charged with an offense carrying a maximum penalty of three years or less (or a fine), the court shall admit the defendant to bail, making it an imperative duty.
2. Non-Bailable Offenses – Bail within the Discretion of the Court
A non-bailable offense does not mean an offense where bail can never be granted. Rather, it signifies that bail is not an automatic right. For non-bailable offenses, the power to grant bail shifts entirely to judicial discretion. It requires the applicant to place sufficient facts before the court to warrant temporary release.
Examples of Non-Bailable Offenses
Capital Offenses: Murder, treason, culpable homicide punishable with death, and armed robbery.
Grave Felonies: Kidnapping, terrorism-related offenses, and rape.
Severe Financial & Economic Crimes: Large-scale public corruption or economic sabotage carrying lengthy custodial terms where flight risk or evidencetampering is high.
Legal Basis for Refusal of Bail
The Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended)
Section 35(1)(c) of the CFRN: Recognizes permissible derogations from the right to personal liberty. It allows detention upon reasonable suspicion of having committed a criminal offense or to prevent the commission of an offense. This is subject to judicial scrutiny.
The Administration of Criminal Justice Act (ACJA), 2015
Section 161(1) of ACJA: Provides that a defendant charged with an offense punishable by death shall only be admitted to bail by a High Court Judge under exceptional circumstances.
Section 161(2) of ACJA: Defines “exceptional circumstances” to include:
i. severe ill-health of the applicant (verified by a medical officer of the correctional center or a certified government medical practitioner).
ii. Extraordinary delay in investigation, arraignment, or prosecution exceeding reasonable limits.
iii. Any other condition the judge deems exceptional.
Section 162 of ACJA: Sets out the explicit legal grounds upon which a court may exercise its discretion to refuse bail in non-capital offenses carrying terms above three years:
a. Reasonable grounds to believe the defendant will commit another offense.
b. Attempt or threat to evade trial / flight risk.
c. Likelihood of interfering with witnesses, suppressing evidence, or obstructing investigation.
d. Threat to public order or national security.
Conclusion
The distinction between bailable and non-bailable offenses serves as a vital safeguard against arbitrary state power. While the state possesses a legitimate interest in prosecuting crime, pre-trial detention must never become a form of premature punishment. By keeping bailable offenses strictly grounded in right and framing non-bailable offenses under clear judicial parameters, the legal system protects individual freedom while maintaining public confidence in the administration of justice.
By Thomas Oreoluwa.
For more insights on bail in Nigeria, read our previous post.