LAW & U: Concept Of Bail

First of all, what is bail? This is a procedure by which a person, arrested or detained in connection with a crime may be released, upon a security being taken for his appearance on a day and place as may be determined by the person or authority effecting the release. In order to secure the release of a suspect who has been arrested from a law enforcement agent’s custody or jail with the understanding that the suspect will return for trial and court appearances, a bail can be requested. Bail can also be said to be a mechanism or money or some form of property that is deposited or that which stands as a pledge to a court.

The concept of bail is an enforcement of fundamental human right in Nigeria has recently taken a centre stage of discussion among jurist and people. In a nutshell, bail is a security of attendance in court from commencement of proceedings to judgment. In determining whether to grant or refuse bail, the determinant factors appear to depend upon the peculiar facts of every case. This takes us to the CONCEPT OF BAIL and its enforcement in Nigeria.

The concept of bail which is the right of a person to have or be granted a bail. This is an adjunct or direct offshoot of the constitutional right to liberty, guaranteed under Section 35 (1) and the right to freedom of movement under Section 38 of the Nigerian Constitution. It is also not unconnected with right to presumption of innocence as well as the fair trial granted by the same Nigerian constitution. Though, the power of court to grant bail is not inherent as such, it has constitutional, as well as statutory foundation. It can be buttressed in, Ikotun Vs FRN & Anor (2015).    Bail generally is of right to a person accused of committing a crime. This is informed by the presumption of innocence that the accused enjoys under the constitution of the Federal Republic of Nigeria.

Over a period of years, most suspects who might not have committed any offence or whose relation had been suspected of committing a crime have found themselves incarcerated in police detention. Sometimes, they can’t press or hold charge, and sometimes this incarceration could take a longer period of time or many years before the actual trial (if any) would be instituted.

The objectives of this topic, is to enlighten Nigerians on their constitutional right to bail, and why every suspected criminals is in compelling right other than bail. Its objective is to expose the unconstitutional practice of holding charge with a view to detaining a suspect.

Bail arises at three (3) stages of the criminal justice which are:

  • The police may release suspect on bail pending further investigation.
  • The court may release an accused person on bail pending the determination of the case against him.
  • The court may release a convicted person on bail pending the determination of his appeal against his conviction.

Bail by police can be buttressed in the Police Act of Nigerian in Section 129 and 27 (b) which provides that bail can be granted by the police pending the investigation of the allegation against the person arrested. When a person is arrested to the police station, the law enjoins the officer in charge of the station to release the suspect on bail pending further investigation into the case or before a charge is preferred against the person in court.  It’s very annoying when some officers of the Nigerian police force insist on collection of money, whereas policing law in Nigeria states that “BAIL IS FREE”. Rather than bail is free, it has been turned to “BAIL FEE”.

Bail by the court can be emphasised in Section 161(1) of the Administration of Criminal Justice Act provides for an instance which states:  “a suspect arrested, detained or charged with offence punishable with death shall only be admitted to bail by a judge of the high court, under exceptional circumstances”.