Let me begin on the simple premise that bail is a right and not a privilege. This right is fully ensconced and embedded in the 1999 constitution, and this right is available to every person who has been accused or suspected to have committed a crime. Bail simply put, is a procedure by which a person arrested or detained in connection with a crime may be released upon security been taken for his appearance on a day and place as maybe determined by the person or authority affecting the release. It is a process by which a person is released temporarily from state custody on conditions given to ensure his attendance in the court whenever he is required, until the determination of the case against him.
The right to bail is an adjunct or direct offshoot of the constitutional right to liberty guaranteed under Section 35(1), and the right of freedom of movement under section 38 of the constitution. It is also not unconnected with right to presumption of innocence under section 36(5) of the constitution. Section 35 of the constitution is the omnibus section upon which the right to bail is founded.
Section 35(1) provides; that every person shall be entitled to his personal liberty and no person shall be denied of such liberty. Mindful of the fact that the law enforcement officers or agencies who exercise the power of detention as aforesaid may abuse such powers by keeping an accused or suspect longer than necessary, subsection 4 of section 35 of the constitution provides that; Any person who is arrested or detained in accordance with the provision of subsection (1)(c) of this section shall be brought before a Court of Law within a reasonable time.
To avoid any controversy as to what a reasonable time means, Subsection (5) provides the answer, thus:
In subsection (A) of this section, the expression a reasonable time means; (a) In the case of an arrest or detention in a place where there is a court of competent jurisdiction within a radius of forty kilometers, a period of one day; and (b) In any other case, a period of two days or such longer period as in the circumstance may be considered by the court to be reasonable.
From the above, it is pertinent to state that the minimum amount of time a suspect is allowed to be in detention without bail is a period of 48 hours (2 days). However, there are several exceptions to these constitutional provisions.
STAGES OF BAIL
In criminal proceedings, the question of bail usually arises at three (3) different stages:
(1) Bail by the Police or any Law Enforcement Agencies
(2) Bail by the court pending trial
(3) Bail by the court pending Appeal
With respect to bail by the police or any other Law enforcement agencies, Whenever the Police or the Law enforcement agent carries out an arrest without a warrant, the officer in charge of the station or the Law enforcement agency that authorized such arrest, may release such a suspect upon security being taken for his attendance in court or at such station whenever required. The constitutional provision of not keeping a suspect or an accused person for more than 48 hours (2 days) applies strictly in this type of bail, as the court has severally warn against keeping an accused beyond the constitutional provisions without first charging the suspect to court or releasing the suspect on bail. In Eda vs commissioner of police (1982) 2NCLR219. The court held that the provision of section 27 of the Police Act which state that an accused should be charged to court as soon as practicable after he is taken into custody is unconstitutional as it runs contrary to section 35(4) and (5) of the constitution which provides for a maximum period of 48 hours before a suspect is been charged to court.
The next stage in the application for bail is;
BAIL PENDING TRIAL: This is where the police or the relevant Law enforcement agencies charge the suspect to court.
Here, the suspect through his counsel may apply for bail of the suspect or the court may suo moto admit the defendant on bail. It is also important to draw a distinction between the power of the magistrate court to grant bail and the power of the high court to grant bail. It is submitted that the power of the magistrate court to grant bail is limited to minor offence as the magistrate court cannot grant bail in serious offence, since the court does not Ipso facto has jurisdiction over capital offences, hence they cannot grant bail in capital offence- see section 115 of the administration of criminal justice law of Lagos state 2011. The practice where magistrate court grant bail in capital offence under the guise of Holden charge has been declared unconstitutional by Plethora of Supreme Court cases, see Ogor Y. Kolawole (1985) 6NCLR 534 at 539; EYA VS THE STATE (1988) 2NWLR (pt 200) 333. The high court has power to grant bail in all criminal cases that comes before it whether in the exercise of its original, supervisory or appellate jurisdiction. In the exercise of the powers of the court to grant bail, the court has discretion to either or not grant bail. See ONAGORUWA VS THE STATE (1992) 2NWHR (PT221) 33 AT 54.
In exercising this discretion the court will take into consideration a number of factors before deciding whether or not to grant bail. The considerations are as follows
i. The nature of the charge;
ii. The strength of evidence which support the charge;
iii. The gravity of the punishment in the event of conviction;
iv. The previous criminal record of the accused, if any;
v. The probability that the accused may not surrender himself for trial;
vi. The likelihood of the accused interfering with witness or may suppress any evidence that may incriminate him;
vii. The likelihood of further charge being brought against the accused; and
viii. The necessity to procure medical or social report pending final disposal of the case- BAMAIYI VS THE FEDERAL REPUBLIC OF NIGERIA (2007) ALL FWLR (PT 375) 558; -once the court has consider this factors favorably, the court is enjoined to grant bail. Also it must be borne in mind that the proper test the court will consider whether or not to grant bail is to consider the probability that the accused will appear to take his trial and that he will do nothing to frustrate the same-in fact, all other factors revolve around this all important factor.
BAIL PENDING APPEAL: This is the last stage where an applicant can apply for bail. An application for bail at the appellate level may arise in the following circumstances; (a) where the applicant/appellant has been tried and convicted but he has appealed against his conviction and he is bringing his application for bail, pending the determination of the appeal (b) where the accused has made an application for bail at the trial court pending trial but same was refused and the trial is still pending before the court. Thus where any of the aforementioned scenarios occurs, the accused/convict can apply for bail pending trial. In granting bail to an accused under this stage, the court will consider a number of factors like;
(a) The nature of the appeal (2b) the physical or mental well-being of the appellant (c) where the trial, conviction and/ or sentence is/are manifestly contestable (d) the length of sentence passed on the applicant (e) where the applicant is a first-time offender (f) where the appellant was granted bail in the course of trial and he/she did not jump bail.
Once the court is satisfied with the aforementioned factors, the court will grant bail.
TERMS OF BAIL:
This refers to the condition or conditions upon which bail is granted. It is usually spelt out by the judge when he is granting bail. Bail maybe granted on the following terms and/or conditions
SELF RECOGNIZANCE: Bail is usually granted on this condition when the accused person is a known personality whom the court is of the opinion is not likely to jump bail. The late Chief Gani Fawehinmi was a huge beneficiary of these terms of bail
AN ACCUSED EXECUTING A BOND: A person may be granted bail on condition that he executes a bond for a fixed sum. Where the accused fails to appear before a court on a day he is required to be so present. He may be made to pay the amount contained in the bond. This is otherwise called forfeiture of bond.
PROVIDING SURETY OR SURETIES; here the accused will be directed to provide sureties who will stand for him, and if he fails to appear before the court, the sureties will be made to a pay the sum stated in the bond or be committed to prison.
PAYMENT OF DEPOSIT: under this term, the court will ask an accused person to pay a specific amount of money into an interest yielding account provided by the court, the rationale for this is that, if an accused fails to appear before the court, the accused will have to forfeit the amount deposited to the government.
REVOCATION OF BAIL
There are situations where the court can revoke the bail granted to the accused; an example is where an accused jump bail, an accused is said to have jump bail where he fails to appear in court on a date the case is coming up, without giving a or justifiable reason for his inability to attend court. Another instance is where the sureties who stood for an accused, applies to be discharged, or surrender the accused to the court before the date assigned-see the case of CALEB AND ANOR VS FRN (2006) 4 NWLR (PT 984) 103 AT 115.
Finally, it should be pointed out that though accused has a right to bail, such right is not absolute but qualified; and the right of an accused can be dispensed with, in the interest of justice and when national interest is involve. In DOKUBO-ASARI VS FEDERAL REPUBLIC OF NIGERIA (2007) ALL FWLR (PT 375) 558 the Supreme Court held thus; the pronouncement by the court below is that where national security is threatened or there is the likelihood of its being threatened, human right or the individual right of those responsible takes second place. Human right or individual right must be suspended until the national security can be protected or taken care of. This is not anything new. The corporate existence of Nigeria as united, harmonies, indivisible and indissoluble sovereign nation is certainly greater than any citizen liberty or right. Once the security of this nation is in jeopardy and it survives in pieces rather than in peace, the individuals liberty or right may not even exist.
Samuel Okolie is a Lagos-based legal practitioner. 08066756987, [email protected]