The Right To Bail And The Emerging Punitive Conditions: The Case Of Prof. Maurice Iwu By L.G Jamala, Esq.

The right to bail is a direct offshoot of the constitutional right to liberty guaranteed under Section 35(1)(a)[1], the right to freedom of movement, presumption of innocence as well as the right to fair trial all in chapter iv of the Constitution.

Bail is the longstanding concept of presumption of innocence, the very basis for the security given by accused persons for their attendance in court at their trial. It has a Constitutional as well as Statutory foundation. What then is bail? Simply put, it is the process by which an accused person is released temporarily from state custody to sureties or in certain cases, on personal recognizance on conditions given to ensure his attendance in the court whenever he is required, until the determination of the case against him.[2]

Bail usually arises in three instances in the criminal justice system thus:

• A suspect may be granted bail by the police at the police station (administrative).
• An accused may be granted bail by the court pending trail and
• A convict may be granted bail pending the determination of his appeal (bail pending appeal).

The gravamen of this piece however shall be on bail pending trial and the intendment for bail condition vis-à-vis its emerging trends in the Nigerian judicial space. It is apposite to state here however that the right to bail is not automatic and is therefore not granted as a matter of course. While it is well established that bail can be granted in respect of almost all the offences known to law[3], certain conditions must be fulfilled before a person is admitted to bail.

It is important to note however that the imposition of conditions are discretionary powers of the court that must be exercised judicially and judiciously to which is primarily aimed at securing the attendance of the accused in court but not suggestive of a conviction and or declarations of innocence. In Abacha V. State[4], it was held inter alia that the most proper test whether bail should be granted or refused is the probability that the accused will appear to take his trial….”

This criterion is regarded as not only the omnibus one but the most important. As a matter of law and fact, it is the mother of all criteria. All other criteria are parasitic on the omnibus criteria of availability of the accused to stand trial.[5]

Having briefly stated the rather elementary aspect of the concept of bail with specifics on bail pending trial, I shall now examine the case under review and the conditions as given by the court.

The  Economic & Financial Crimes Commission had on the 8^th day of August, 2019 arraigned a former chairman of the Independent National Electoral Commission (INEC) on a four count charge bordering on fraud before a vacation Judge of the Federal high Court sitting in Lagos. Iwu was/is alleged to have between December 2014 and March 27, 2015 aided the concealment of over 1.23billion in the account of Bioresources Institute of Nigeria Limited, an act, the anti-graft agency posit, is contrary to sections 18(a) and 15(2) (a) of the Money Laundering (Prohibition) Act, 2011 and liable upon conviction, to be punished under section 14(3) of the same Act to which the defendant pleaded not guilty on all the counts. Considering the bail application of the Defendant the court admitted the Defendant to bail in the like sum:

• The sum ofN1 billion with two sureties in like sum.
• One of the sureties must own a landed property in Lagos.
• A professor or a civil servant not below grade level 16.
• Both sureties are to furnish the court with the statement of their bank accounts showing a minimum balance of N
• The sureties are also to submit their recent passport photographs and
• The defendant is to deposit his passport (International) with the Deputy Chief Registrar of the court[6].

Section 165(1) of the Administration of Criminal Justice Act 2015 provides that the conditions for bail in any case shall be at the discretion of the court with due regard to the circumstances of the case and shall not be Excessive[7].

Let’s have a closer look on the 4^th condition to wit:

“Both sureties are to furnish the court with the statement of their bank accounts showing a minimum balance of one billion naira”.

The courts have held on what amounts to be “Excessive, punitive or stringent bail conditions to mean conditions that are too harsh and may not be easily met or fulfilled by the defendant and thus defeating the very essence of the bail: see Akila & Ors V. Director General State Security Service & Ors. The Mariam-Webster Dictionary defines “Excessive” as amount or degree too great to be reasonable or acceptable.

As stated earlier in this piece, the very essence for the grant of bail is securing the attendance of the accused person.

On the strength of the above therefore, can it be rightly said and yours truly that a professor and or a civil servant in the Federal Civil Service of the Federal can be reasonably presumed to have in his account a minimum balance of N1 billion Naira, can the legitimate income of a civil servant of grade level 16 have (him) in his account such a humongous sum? In Uduesegbe V. FRN (2014) LPELR- 23191 (CA) the court held.

“Trial courts are enjoined to be liberal in their approach to grant of bail and the conditions thereof in non-capital offences. They are thus to grant bail on favourable and affordable conditions. It has been held that it is against the spirit of the law to impose excessive and stringent conditions for bail as that would amount to a refusal of bail. Where the conditions are stringent, the trial court or an appellate court has a duty to vary the conditions.”

The right of an accused person to be released on bail is germane to the just and efficient dispensation of criminal justice the world over. While it is agreed that such a right is not automatic or absolute, effort must be seen not to refuse bail for punitive reasons but for valid reasons and reasons that will further the cause of justice. Where any bail condition is seen to be excessive or punitive, it loses its purpose, function and goal.

The right to bail is a fundamental human right provision in our Constitution, it is my humble view that the condition to be considered for granting same should not be left to the discretion of any individual, panel or a group.

[1] Constitution of the Federal Republic of Nigeria, 1999 as amended. see also sections 35(4 &5) and section 38

[2]See Onyebuchi v. FRN (2009) All FWLR (Pt. 458) 341

[3]. note that persons accused of an offence punishable with death shall not be released on bail except in special circumstances.

[4]. (2002) FWLR (PT. 98) 863

[5]. The State v Kasimu (2014) LPELR-23468 (CA) per Akeju JCA, (pp.14-15 paras G-D): Asari Dokubo v. FRN (2017) All FWLR (Pt. 375) 588 Per Tobi JSC @ 589 PARAS a-d.

[6]. www.punchnewsonline.com last accessed 9^th August, 2019.

[7]. emphasis are mine

Written by L.G Jamala, Esq.