‘Stiff bail conditions by courts make accused attend their trial’

Daramola(SAN)

‘Courts have a duty to enforce liberty of citizens’
In continuation of the discussion on bail conditions, a senior advocate of Nigeria (SAN), and principal partner, Afe Babalola Chambers, Olu Daramola, believes the law is served when courts impose stringent bail conditions to ensure that the accused persons come to court to attend their trials. But a Lagos lawyer and human rights activist, Ebun-Olu Adegboruwa, disagrees insisting that courts have a duty to ensure citizens’ liberty as provided in Section 35 of the 1999 Constitution as amended. Here are their different views.

Contributing, senior advocate of Nigeria and principal partner, Afe Babalola Chambers, Olu Daramola, explained that the imposition of bail on suspects is in line with the constitution to ensure suspects are available for trial. He stated: “It is absolutely lawful to impose bail conditions on suspects accused of committing felony offences. Even though an accused is presumed innocent until his guilt is pronounced by the court after the trial, the court has a duty to impose conditions that will ensure that the accused when released on bail would be available for the trial”.

He also added that, the courts still reserve the right to refused bail, where suspects are likely to evade trial. “The court can even refuse bail where there is reasonable ground that the accused will, when released on bail, commit another offence or attempt to evade trial. Therefore, the court has a discretion to grant or refuse bail” he stated.

“It is absolutely lawful to impose bail conditions on suspects accused of committing felony offences. Even though an accused is presumed innocent until his guilt is pronounced by the court after the trial, the court has a duty to impose conditions that will ensure that the accused when released on bail would be available for the trial”. 

Daramola also described the issue of corruption as a great threat to the country and can lead to the country becoming a failed state like Somalia. And to impose conditions for bail, the court will consider the following:

. The nature and quality of evidence against the accused person,
. The possibility of the accused interfering with further investigation of the offence,
. The nature of the offence and the prescribed punishment under the law, and the prevalence of the offence.

He also pointed out that nobody is in doubt today that corruption is the greatest menace plaguing Nigeria. Even the Boko Haram insurgency is a bye product of government’s neglect and corruption in the country.

As a result of this, there is nothing wrong in the courts imposing stiff bail conditions on people alleged to have stolen the common wealth because the possibility of their jumping bail or frustrating their trial must not be undermined.

For example, many of these people have dual or multiple citizenship. If they have the opportunity of leaving Nigeria they may not comeback for their trial. This brings to mind the case of a particular 419 kingpin who was granted bail on health ground but absconded from trial for more than six years.

When he was subsequently arrested and detained in prison, he committed another offence involving millions of dollars within the prison wall.

Daramola also described the intention of the government in prosecuting the corruption cases as noble and should be commended.

To him, if the war against corruption is intensified and extended to all sectors of the economy, the Government can recover enough money to fund three years budget. The Government should monitor the banks closely so that they do not collude with government agencies to frustrate the TSA, he added.

“ Every application for foreign exchange should be scrupulously scrutinized to prevent round tripping and diversion. Any account that is not linked to a BVN number should be confiscated. No state or local government or any agency of government should be allowed to operate any account outside the TSA system”.

The intention of the government is laudable and all Nigerians must encourage and support the government in our own interest to prevent the country from falling into chaos and anarchy, he concluded.

Human rights lawyer, Ebun Olu Adegboruwa, considered the issue of how courts give bail conditions as wrong attitude of the courts towards the liberty of the citizens and described it as worrisome.

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

“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 set back for our democratic experience.

He however called on the judges to decide in favour of the liberty of the citizens by adhering to the rule of law. He also urged the Nigerian Bar Association (NBA), to enforce the motto of the great association which is ‘to promote the rule of law’.

“NBA should speak and protect the judges who are being intimidated and threatened by the Executive. 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 are upheld”, Adegboruwa implored.

He continued: “It has become imperative to analyze and dissect recent decisions of courts in relation to cases of suspects facing trial for alleged corruption and those agitating for self determination.

In the case of the former National Security Adviser, Col Sambo Dasuki, (rtd.), the order of court to release him on bail was frustrated by his subsequent arrest right in front of the prisons.

In the case of Nnamdi Kanu, leader of the Pro-Biafra group, the order of court for his unconditional release was flatly disregarded by the Buhari administration.

In the case of Chief Olisa Metuh, the court granted him bail with very stringent conditions, almost equal to the very amount with which he was charged. It got so tough to meet the conditions for his bail that he had to apply to the court for a variation of the very draconian bail terms.

“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 set back for our democratic experience.

We had gotten to a state in Nigeria, before the advent of the Buhari regime, when it had become acceptable to grant bail in ALL CASES, subject to such conditions as would ensure the attendance of the suspect in court. It should be as simple as that.

“As if responding to the motley choruses of anti-Liberty apologists, the courts have now started churning out very onerous conditions, for citizens to enjoy their liberty while facing trial, even in noncapital offenses. And it got to its peak on Friday January 29, 2016, when the court in Abuja denied bail to Nnamdi Kanu and his pro-Biafra agitators, on the ground that there is no assurance that they will not commit similar offense if released on bail.

“It is totally amazing that a court is indirectly requesting a citizen to prove his innocence. Second, by the open declaration of the court, it follows logically that the court has accepted the case of the prosecution, even before trial has commenced, that an offense has indeed been committed. This raises the question of likelihood of bias, against the court, which now seemed to have taken a position, against the constitutionally guaranteed presumption of innocence, of a suspect.

“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. It would seem that the EFCC in particular has so intimidated and cowed the judiciary into abandoning its duty to enforce the liberty of the citizen.

When one recalls that the federal government never for once obeyed the order of the federal high court to release Nnamdi Kanu, it baffles the mind that the same government had now secured an order of remand from the very court that it has humiliated and defied, with such wanton disregard and blatant impunity.

Expressing his disappointment further, Adegboruwa said: “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.

“Whereas we all support and encourage a genuine crusade to rid our nation of corruption, such must be pursued within the ambit of the rule of law”, he admonished.