By Oyetunji Teslim
Bail is the constitutional right of an accused person. It is an indispensable attribute of our accusatorial criminal justice system. This is because under Nigerian law, an accused person is presumed innocent until proven guilty. Bail is never to be used as a punishment nor a reward for extracting confession from a suspect.
The purpose of bail is to guarantee the production of the accused in court and ensure that he does not temper with evidence or interfere with witnesses during the pendency of their trial. Bail is granted for almost all offences except capital punishment or offences punishable with more than 21 years imprisonment. When bail is granted with conditions attached to it, such as the provision of reliable sureties or upon proof of evidence of landed property etc., it is known as conditional bail. On the other hand, bail granted only on requirements to appear in court on expected days or upon mere self recognizance is known as unconditional bail.
There are three categories of bail in all criminal trials: Bail granted upon arrest, also known as administrative bail; bail granted upon arraignment, also known as court bail; and bail pending appeal. In all three cases, what should be of paramount importance in considering whether bail ought to be granted is securing the presence of an accused in court to face trial. If a suspect has previously demonstrated the tendency to jump bail or if the offence for which they are arrested involves a huge sum of money, the conditions for bail may be varied to meet the seriousness of the investigation or case.
These are the legal principles that should guide every consideration for bail. However, these principles violated in Nigeria and the trend is both disturbing and unfortunate.
In a country where undue reliance is placed on confessional statements, the temptation to use the prospect of bail as a dangling carrot for eliciting incriminating statements against the accused is profound. Upon arrest, a suspect ought to be immediately informed of his constitutional right to silence and bail. This is rarely the case. The tactic of government agents with prosecutorial powers, especially the police and the Economic and Financial Crimes Commission (EFCC), has always been to extract as much incriminating evidence as possible from the suspect immediately after arrest. Perhaps, the method was passed on to the EFCC by the police.
Even more disturbing are instances of cases on which there are hanging undischarged administrative bails. Sometimes, these undischarged administrative bails over unclosed files are called up after years of inactivity.
Furthermore, the do-or-die attitude of the enforcement agencies to matters of bail can be seen in their unnecessary objections to procedural bail applications in court, which often end up in unnecessary distractions and delayed justice. In recent times, the desperation in objection to bail has been taken to hysterical dimensions, even to the point that the EFCC, for instance, compares corruption cases to crime against humanity.
In the case of the immediate-past governor of Anambra State, Willie Obiano, after spending four nights in EFCC custody, the commission reluctantly agreed to grant him bail. The EFCC chairman, Abdulrasheed Bawa, referring to Obiano, told newsmen that, “So far, he has been cooperating with us, everything is going well.”
That kind of statement can be read in many quarters to indicate serious suspicion of the use of coercive tactics on suspects to extract favourable, albeit self-incriminating, statements.
The constitution provides that any person arrested must be taken to court within 24 hours and where there is no court within the radius of 40km, then the person should be arraigned within 48 hours. If the person is not taken to court within the constitutionally stipulated time, then he or she should be released on police or administrative bail. What this means is that a suspect’s statement must be taken within 24 hours of their arrest if they choose to offer one. The practice of keeping a suspect in custody for days before obtaining their statement is characterised as systematic torture often done to elicit confessional statement. There is no justification for that kind of practice in law.
This is usually the resultant effect of precipitous arrests carried out without proper foundational forensic investigation. The scramble to build a case against the arrested person against whom they have nothing but mere “petition” necessitates the result to such appalling practice. Our courts must, therefore, step up to protect the right of an individual from abuse. Human dignity and liberty must not be sacrificed in the name of prosecution. The provisions of our laws, if effectively implemented, have proven that both the pursuit of justice and the preservation of human dignity can co-exist. This dual function of law is what is known as due process.