Is bail is a right?

During his maiden media chat last Wednesday, President Muhammadu Buhari justified the continued detention of former National Security Adviser (NSA) Sambo Dasuki and Indigenous People of Biafra (IPOB) leader Nnamdi Kanu, who were granted bail by the court. Is the President right? JOSEPH JIBUEZE sought lawyers’ views.

In law, a suspect granted bail by the court is expected to be released once he fulfils the conditions attached thereto. But in some instances, some suspects have not been allowed to go home after fulfilling their bail conditions. In the past few weeks, we have seen the cases of some high flying suspects. Former National Security Adviser (NSA) Col. Sambo Dasuki and Indigenous People of Biafra (IPOB) leader Nnamdi Kanu are still being held despite fulfilling their bail conditions.

Last Wednesday during his maiden “media chat”, President Muhammadu Buhari said they were still in custody because they committed “serious” crimes. His remark has provoked reactions, with many wondering if it is the executive’s duty to comment on a case in which it is a party. Is the government right to have kept them in detention despite being granted bail?

Dasuki

Fresh charges of alleged money laundering were filed against Dasuki, who was arraigned on September 1 for alleged illegal possession of firearms. Before the fresh charges, Justice Adeniyi Ademola had granted him bail on self-recognition.

Soon after, Dasuki obtained the court’s leave to travel abroad for medical treatment, but he was prevented from doing so by the Department of State Services (DSS), who laid siege to his residence in the Asokoro District of Abuja where he was kept under house arrest. The service had claimed at the time that the former NSA was under investigation for another offence.

Dasuki approached the court praying for the enforcement of the November 3 order so he could travel for three weeks on health ground. Justice Ademola insisted that Dasuki must be allowed to travel without delay. “Court order must be obeyed…My own orders will not be flouted,” the judge said.

Another court had also granted Dasuki bail after he was arraigned on a 22-count charge of alleged diversion of funds, misappropriation and breach of trust to the tune of N19.4 billion.

The former NSA and others were granted bail on December 21 by the Federal Capital Territory High Court in the sum of N250 million each and two sureties in like sum.

But after fulfilling the conditions for his bail by Justice Peter Affen , Dasuki’s lawyer Ahmed Raji (SAN) said the DSS has refused to allow him go home but was detained in Kuje Prisons. Dasuki’s wife said her husband’s health is bad, pleading for his freedom.

“He is ill, he needs medical attention, he is not pretending. I implore the DSS not to allow him to die in custody,” Mrs Dasuki was quoted as saying.

Kanu

Justice Ademola granted Kanu bail unconditionally while ruling in an application filed and argued by his lawyer Vincent Obeta. The judge set aside an earlier order permitting the DSS to detain Kanu for 90 days. According to the judge, Kanu’s continued detention after two months without trial violates Section 158 of the Administration of Criminal Justice Act 2015 and Section 35 of the 1999 Constitution. The court ordered the DSS to release him unconditionally

Rather than release him, fresh charges were filed against him. On December 23, Kanu frustrated plans to arraign him and two of his associates by expressing doubts about Justice Ahmed Mohammed’s ability to adjudicate the treasonable charge against them fairly. The judge withdrew from the case.

Akpobolokemi

Despite being granted bail by two courts, security agents on December 14 re-arrested a former Director-General of the Nigerian Maritime Administration and Safety Agency (NIMASA) Patrick Akpobolokemi, outside the Federal High Court premises in Lagos moments after his trial for allegedly defrauding the Federal Government was adjourned.

Policemen and plain clothes operatives swooped on Akpobolokemi and bundled him into a waiting bus soon after Justice Ibrahim Buba adjourned trial to January 18. Akpobolokemi’s re-arrest is linked to fresh allegations of fraud of about N12,905,485.000 meant for a maritime university.

EFCC arraigned the ex-NIMASA DG and three others on charges of converting N2.6 billion as well as defrauding the Federal Government to the tune of N795.2 million. They were granted bail.

Akpobolokemi and nine others, including two companies, were earlier arraigned before Justice Saliu Saidu of the same court on a separate charge of conspiring among themselves to convert N3.4 billion belonging to NIMASA. They also pleaded not guilty to the charge. They were also granted bail.

It was learnt that Akpobolokemi was released from prison custody the weekend before he was re-arrested after perfecting the bail conditions imposed on him by Justice Buba.

Buhari’s reaction

President Buhari had justified Dasuki and Kanu’s detention, saying those who committed serious crimes against the country cannot be granted temporary freedom because they could jump bail.

“Technically, if you see the type of atrocities these people have committed against the republic, against the country, when you think about it, you can’t allow them to jump bail,” he said.

On the IPOB leader, he said:’’And the one you are calling Kanu, do you know he had two passports, one Nigerian, one British, and he came into the country without any. Do you know he brought an equipment into this country and was broadcasting, Radio Biafra; which kind of government do you think should harbour that kind of person?”

When can bail be denied

According to lawyers, bail, although a right, is discretionary. According to a lawyer, Ijeoma Okoronkwo, right to bail enables a person to stay out of jail until a trial has found him or her guilty in line with constitutional provision of an accused being innocent until proven guilty.

Presumption of innocence is provided in section 36(5) of the 1999 Constitution as one of the constitutional safeguards for fair hearing. However, a person may be denied of his right to personal liberty in the following circumstances as provided in section 35(1) (c): For the purpose of bringing him before a court in execution of the order of a court; upon reasonable suspicion of his having committed a criminal offence, and in order to prevent his committing a criminal offence.

Section 35(4) however demands that any person denied of his personal liberty in this regard shall be brought before a court of law within a reasonable time otherwise the person should be released on bail. Reasonable time is further defined in section 35(5) as: 24 hours (a day) in the case of an arrest or detention in any place where there is a court of competent jurisdiction within a radius of 40kms. In any other case , 48 hours (two days) or any longer period, which given the circumstances of the case, the court considers reasonable.

In case a person is accused of a non-bailable offence, such as a capital crime, it is a matter of discretion of the court to grant or refuse bail. In Nigeria, murder, treason, treachery, directing and controlling or presiding at an unlawful trial by ordeal, are considered non-bailable offences.

Some have argued that the Federal Government has done no wrong so far. A lawyer, Tonye Barcanista, argued that the DSS did not contravene any law or disobeyed the court by re-arresting Dasuki.

“Though Dasuki and others were released from prison after meeting bail condition, he was re-arrested after stepping out of prison. We have to note that the bail was respected by the DSS but unfortunately for him, the judgment of the court didn’t grant him any immunity from further arrest. Hence, the government committed no offence in re-arresting him,” he said.

On Kanu, the lawyer said: “At no time did any court ‘free or clear’ Kanu of any charge against him. What Justice Ademola did was to vacate the order it first granted to DSS to detain Kanu for three months.

“What the DSS simply did was to detain Kanu and file case in court on charges that borders on treason. What constitute treason in Nigeria? The offence of treason can be found in sections 37 to 49 of the Nigeria criminal code. It says: Any person who levies war against the State, in order to intimidate or overawe the President or the Governor of a State, is guilty of treason.

“Through Radio Biafra, Kanu preached inciting messages and even went as far as soliciting for arms with intent to wage war against the State. This was captured in a video that has gone viral. I think that breached section 37(2) of Nigeria Criminal Code (in my opinion),” he said.

Some analysts, however, argue that the President was still trapped in the past, having recalled that during the military era, people were presumed guilty and detained until they prove their innocence. To such observers, the president must realise that a democracy is different from a military regime.

However, A Senior Advocate of Nigeria (SAN), Mr George M. Oguntade, believes Buhari has started very well, given the rotten state of things which he met on ground when he assumed office.

According to him, some degree of stability and cohesion has been achieved. Oguntade believes Buhari would build on it in furtherance of his “change mantra”

“On the issue of bail, I think the President ought to have declined comments on these issues, given the fact that it is a legal issue. I would have expected him to say that the Attorney-General of the Federation is in a better position to respond to the allegations. By expressing his opinion as he did, the President unwittingly appeared to have given the impression that he was privy to or in some way complicit in the accused persons not being granted “temporary freedom” even if this is not the case.

“The law on Bail is quite clear as to the categories of offences that are bailable and those that are not. Once the courts, in the exercise of their discretion and upon a consideration of the case law, elect to grant bail to an accused person, then this decision should be respected.

“If the prosecution believes that the judge’s discretion has been wrongly exercised, they have a constitutional right of appeal against that decision. It must always be remembered that the essence of granting bail on terms is to ensure that the accused is available to stand trial.

“Our constitution recognises that an accused person remains innocent until he is proved guilty and nothing should be done by anyone, including the government to undermine this fundamental constitutional provision.”

A former Commonwealth Lawyers Association president Mrs Boma Ozobia does not think the rule of law has been violated.

“The former NSA was released on bail and indeed reportedly resisted arrest initially when he was under the impression that he was being re-arrested for the same charges.

“However, it subsequently became clear that he was being arrested for entirely new allegations and his counsel has since not pursued that line of argument but rather appropriately, applied for bail once more.

“In a nutshell, it appears to be an ongoing investigation and the authorities are bringing matters to the court as their investigations proceed. This is entirely in keeping with the principles and in accordance with the rule of law.”

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