OPINION

Nigeria: Is monetisation of bail  right?

By Odimegwu Onwumere

The Publicity Secretary of the Peoples Democratic Party (PDP), Barrister Olisa Metuh was arrested by the operatives of the Economic and Financial Crimes Commission (EFCC) on matters relating to corruption and was later granted bail, oppressively, early this year, to the tone of N400m and N600m, on separate arrests and charges.

The same was the fate of the Chairman of DAAR Communication Plc, High Chief Raymond Dokpesi. He was arrested and was latter granted N200 million bail and was, re-arrested.

“In some very bizarre cases, courts are now requiring suspects facing corruption charges to produce medical certificates as evidence of some ailment, to be entitled to bail,” said Human Rights Lawyer, Ebun Olu Adegboruwa, to newsmen.

These persons and many others who went and are going through stringent bail applications to gain their liberty have become an essential factor to dissect and analyze on what the views of lawyers are on the stance of the Constitution about the bail issue.

Is the monetisation of bail worth doing? Is it right?

It is believed in the Nigerian Constitution that an accused person is presumed innocent until proven guilty. Human rights lawyer Adegboruwa, had kicked against the stringent practice and posited it in the trash bin of unlawfulness.

“In law, an application for bail is a demand for the enforcement of the right of the citizen to his Liberty, under section 35 of the 1999 Constitution as amended. And when the court is to grant bail, it is to be done on very liberal terms, without any pecuniary consideration at all. Thus, the new theory of “special” bail conditions for suspects facing corruption charges and pro-Biafra agitations, is a setback for our democratic experience,” Adegboruwa had said.

In 2015, the Chief Justice of Nigeria CJN, Justice Mohammed had asked magistrates to stop commanding rigorous bail conditions on accused persons involved in inconsequential offences.

The directive was said to have been made by the CJN at a national executive of the Magistrates Association of Nigeria, led by its acting National President then, Chief Magistrate Victoria Isiguzo, when they paid the CJN and 15 other Justices of the Supreme Court, a courtesy visit.

“A corollary to this is the imposition of such bail terms, which an accused has no real hope of meeting. I wish to use this medium to counsel magistrates to judiciously and carefully exercise their discretion to remand and consider alternatives to detention where possible, and to set reasonable bail terms as appropriate,” the CJN had said.

Lawyers Continue To Frown At Stringent Bail?

For lawyers, the stringent bail application has not augured well with them as they see it as defiance to the constituted order. Lagos lawyer, Mr. Femi Falana, SAN, was one of those, who had raised voice against such practice.

In an article, titled “Monetisation of Bail in Nigeria” dated September 24, 2013, published in The Nation,  Falana wrote, “Upon arraignment at the magistrates and area courts, accused persons are made to pay for bail with the connivance of defence counsel. Whereas bail is granted in the open court, it is approved in the chambers of some corrupt magistrates on the payment of negotiated sums of money.

“There have been reports of frivolous charges deliberately filed in the courts by the police for the sole purpose of extorting money from “accused persons”. A number of lawyers and magistrates shamelessly participate in the fraudulent commercialisation of the liberty of such innocent people.’’

Giving instance towards his contention, Falana added, “The Lagos State Government has monetised bail in total disregard of the rising inequality in the society. Thus, section 116(2) of the Administration of Criminal Justice Law, 2007 provides that, “The Court may require the deposit of money or any other security as specified by the Court from the Applicant and/or his surety before the bail is approved”.

Prof. Akin Ibidapo-Obe, the Dean, Faculty of Law, University of Lagos, UNILAG, in his book – Bail Process and Human Rights in Nigeria – wrote, “In Nigeria, access to bail implies the ability to pay for the services of a lawyer, to hire a surety, and invariably to “grease the palms” of court registrar and security personnel having custody of the suspect. If what is needed to ease his bail is not available to a suspect, then he is sent back to prison to await the day when he can afford it.”

Is the Reputation Of The Judiciary Smeared?

Nnamdi Kanu who is the leader of the Independent Peoples Of Biafra (IPOB), has been in custody for months upon a court order having given a nod to release him. The straightforward certainty is that the government has refused to obey the federal high court that gave the order.

Lawyer Adegboruwa had added, “I cannot see any reason to justify the denial of bail to Mr Kanu in particular, or why the courts have now suddenly become scared to admit suspects to bail on very liberal terms, as enjoined by the Constitution, which the courts have a duty to enforce.

“The judiciary is not under the influence of the executive and our courts are well encouraged to liberate themselves from self-timidity and intimidation of government agencies, especially the EFCC. The enforcement of the right of the citizen, cannot be compromised or defeated, on the altar of fighting some nebulous anti-corruption war.

“We cannot because of fighting corruption and change the goal post of the law. All offences are bail-able and the conditions should not be oppressive as it is happening now.”

Did Mr. President Say The Judiciary Is Corrupt?

In January, 2016, while in Addis Ababa, Ethiopia, Major General Muhammadu Buhari, in a statement issued in Abuja on Sunday, January 27 2016, by his Special Adviser on Media and Publicity, Mr Femi Adesina, relayed his town hall meeting with Nigerians living in Ethiopia, on the Judiciary as follows:

1.      “On the fight against corruption vis-à-vis the judiciary, Nigerians will be right to say that is my main headache for now.

2.      “If you reflect on what I went through for twelve years when I wanted to be the president, I attempted three times.

3.      “At the fourth attempt, through God and the use of technology, it was possible for Nigerians to elect an APC candidate as president.

4.      “In my first attempt in 2003, I ended up at the Supreme Court and for 13 months I was in court.

5.      “The second attempt in 2007, I was in court close to 20 months, and in 2011, my third attempt, I was also in court for nine months.

6.       “All these cases went up to the Supreme Court until the fourth time in 2015, when God agreed that I will be President of Nigeria.”

Conclusion: Is The Judiciary Adhering To The Rule Of Law On Liberty Of Citizens?

The former National Security Adviser, Col Sambo Dasuki, (rtd.), the order of court to release him on bail was perturbed by his succeeding arrest right in the frontage of the prisons. The moves were widely fingered to have been masterminded by the Presidency.

Nnamdi Kanu, the leader of the Pro-Biafra group; the order of court for his unreserved discharge was absolutely overlooked by the Buhari administration. Adegboruwa had said that the Nigerian Bar Association (NBA) should stand on its foot to let the Executive understand its bounds to duty.

“The Executive should have no say in the Judiciary as long as the Administration of Criminal Justice Act, 2015 is concerned, so that the liberty of the citizens is upheld.

“In law, an application for bail is a demand for the enforcement of the right of the citizen to his Liberty, under section 35 of the 1999 Constitution as amended. And when the court is to grant bail, it is to be done on very liberal terms, without any pecuniary consideration at all. Thus, the new theory of “special” bail conditions for suspects facing corruption charges and pro-Biafra agitations, is a setback for our democratic experience.”

Odimegwu Onwumere writes from Rivers State, Nigeria.