Bail in Nigeria

Introduction

Bail in Nigeria is a constitutionally recognised right.  However, the term “Bail is free”, as enshrined in the constitution, often faces challenges in practical enforcement,  particularly concerning the actions of the authorities responsible for its enforcement.  In some instances, even after an accused person detained is exonerated from such accusations and deemed innocent, authorities in may still demand “tips” or impose so-called “bail requirements” before releasing the individual.

In criminal law, bail refers to the temporary release of an arrested individual from detention under specific terms. It serves as a cornerstone of justice,  that seeks to prevent unnecessary detention of those presumed innocent until proven guilty.  The primary function of bail is to ensure the accused presence during trial. In Nigeria the right to bail is protected by the Constitution and further clarified by the Administration of Criminal Justice Act (ACJA) of 2015.

Statutory Framework for Bail in Nigeria

The right to bail in Nigeria is rooted in Section 35(4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(CFRN), which states:

“Every person who is arrested or detained shall be brought before a court within a reasonable time and shall be entitled to bail, except where charged with a serious criminal offence.”

This constitutional provision underscores the value of individual liberty and aims to prevent unwarranted prolonged incarceration.

The ACJA 2015 further reinforces the right to bail through various provisions, notably Section 158, which states:

“An accused person shall be entitled to bail except in the following circumstances:

1. a) where there are reasonable grounds for believing that the accused person, if released, would commit additional offences;
2. b) where there are reasonable grounds for believing that the accused person would attempt to pervert the course of justice;
3. c) where there are reasonable grounds for believing that the accused person would not stand trial;
4. d) where the charge against the accused person is for an offence punishable with death.”

These provisions outline the general principle that bail should be granted liberally, while acknowledging certain exceptions where the interests of justice may necessitate detention.

Types of Bail in Nigeria

Generally, an accused person is not meant to be denied bail unless charged with capital offences, which have its exception. See Bolakale v. State (2006) 1 NWLR (Pt.962) at 511.

There are two primary types of bail in Nigeria: police bail and court bail.

1. Police bail: Also known as administrative bail, this is granted by the police at the onset of an investigation, prior to the suspect being formally charged in court. It is often given for offences that are not serious or when the authorities do not have enough proof to hold the offender. In general, police bail is less formal and may include requirements like the suspect or accused going to the police station on a regular basis pending the investigation’s outcome.
2. Court Bail: This type of bail is granted by a judge or court, which must be exercised judiciously(see Dokubo-Asari V. FRN (2007) LPELR – 958 (SC). Court bail is sub-divided into two types:
   1. Bail pending trial: Granted to the accused while waiting trial. The court specifies conditions for release, which may include reporting requirements, travel limitations, financial surety, and surety bonds. See Jack V. C.O.P (2011) LPELR 3855.
   2. Bail Pending Appeal: Granted to a convicted person who has appealed their conviction.  The court may grant bail while the appeal is being heard, allowing the individual  to remain free until the appeal is decided. See the case of Uchenna v. IGP (2023) LPELR-61058 (CA).

Basic Considerations for Granting Bail

The grant of bail is not an automatic right. Courts must consider various factors to ensure that the interests of justice are served, including:

1. Nature and Seriousness of the Offence: More serious offenses, such as capital offences, more warrant stricter bail conditions or even refusal of bail. See Mamman V. STATE (2012) ALL FWLR (Pt.621) 1542 at 1547
2. Strength of the Prosecution’s Case: In the event that the prosecution makes a compelling case, the court might be more inclined to refuse bail to prevent the accused from fleeing.
3. Accused’s Background and Personality: The court may consider the accused’s community connections and any criminal history.  In some cases, bail could be denied to protect the accused if there is a high risk of harm from the community based on the circumstances of the offence committed.
4. Risk of Interference with Witnesses or Evidence: There are plethora of occasions where the accused, after being granted bail, goes out to either terminate the life of vital witnesses or even tamper with evidence that could be used against them. See Omodara v. STATE (2004) 1 NWLR (Pt.853) 83.
5. Likelihood that the defendant will escape the jurisdiction (Absconding): The court may assess the risk of flight by evaluating the accused’s financial situation and travel history.

Role of the Courts in Bail Decisions

The court must act prudently and impartially, balancing the accused constitutional rights with the need to uphold public order and ensure the proper administration of justice. The enactment of the ACJA 2015 has significantly impacted Nigerian bail jurisprudence, providing a comprehensive legal framework for the grant and denial of bail. The court is crucial in deciding whether to grant bail and, if so, under what conditions. The conditions attached to the grant of bail must not be suffocating, unbearable, unworkable, or unduly burdensome. See Abacha v. STATE (2002) 5 NWLR (Pt. 761) 638.

Challenges in Bail Implementation

Despite the legal framework in place, the implementation of bail in Nigeria faces several challenges:

1. Judicial Discretion: The broad discretion afforded to judges in bail matters can sometimes lead to inconsistencies and disparities in decisions.
2. Corruption: Corruption within the judiciary and law enforcement agencies can undermine the integrity of the bail process.
3. Lack of Awareness: Many individuals are unaware of their rights to bail and the procedures for obtaining it.
4. Overcrowding in prisons: Overcrowding in Nigerian prisons exacerbates the problem of prolonged detention, as many individuals who should be granted bail remain incarcerated due to systemic inefficiences.

Conclusion
Bail is a fundamental right in Nigeria, essential for the just administration of justice.  The Constitution and the Administration of Criminal Justice Act (ACJA) of 2015 provide a robust legal framework supporting this right. However, challenges such as judicial discretion, corruption, lack of public awareness and systemic issues like prison overcrowding hinder its effective implementation.  Addressing these challenges require comprehensive reforms, including judicial education, enhanced accountability and public enlightenment on bail rights.  Such measures are crucial for upholding the integrity of Nigeria’s criminal justice system and ensuring that the right to bail is accessible to all citizens.

By Gontul Kenubeh Timothy, Esq.