KNOW YOUR RIGHT.IN NIGERIA: THE ACCUSED PERSON’S RIGHTS To BAIL

KNOW YOUR RIGHT.
 IN NIGERIA: THE ACCUSED PERSON’S RIGHTS To BAIL

In general, an individual accused of a crime must be held in the custody of the court until his or her guilt or innocence is determined. However, the court has the option of releasing the individual before that determination is made and this option is called bail. The right to bail is intrinsically affiliated of the accusatorial system which favours a bail system that ordinarily enables a person to stay out of jail until a trial has found him or her guilty.
The position bail occupies to an accused person awaiting or standing trial is of great importance. An accused person who is released on bail would not only see it as an opportunity to breath the air of freedom but also as a stepping stone to his eventual discharge and acquittal. The grant of bail is based on the presumption of innocence. This simply means that an accused is presumed innocent until the contrary is proved. It is not for the accused to prove his innocence rather the burden of proof is on the prosecution to establish the accused person’s guilt to the satisfaction of the court.
Bail is a conditional right guaranteed by Section 35 of the 1999 Constitution of the Federal Republic of Nigeria. To grant bail is to set at liberty a person arrested, charged to court or imprisoned on security being taken for his appearance on a day and place certain for his trial. When bail is granted a suspect, an accused or convicted person, he is granted temporary release from custody pending the conclusion of investigation, the determination of the case against him, or determination of his appeal against conviction.
RIGHT TO BAIL
The question is whether bail is a right or not? Bail is an important component of the right to personal liberty under Section 35 of the Constitution. Therefore, bail is a right. The legal basis for the right to bail is the presumption of innocence of the accused or suspect. Presumption of innocence is provided in section 36(5) of the 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):
1.For the purpose of bringing him before a court in execution of the order of a court.
2.Upon reasonable suspicion of his having committed a criminal offence, and
3.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:
1.24 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.
2.In any other case , 48 hours (two days) or any longer period, which given the circumstances of the case, the court considers reasonable.
Bail therefore arises at three stages of the criminal justice process:
1.The Police may release a suspect on bail pending further investigation.
2.The court may release an accused on bail pending the determination of the case against him
3.The court may release a convicted person on bail pending the determination of his appeal against his conviction.
WHO MAY GRANT BAIL
Under the Nigerian Criminal Procedure Code (C.P.C) applicable in the North and Criminal Procedure Act (CPA) applicable in the South, both the Police and the Court have the power to release a suspect or an accused person on bail.
BAIL BY THE POLICE: Sections 17 of the C.P.A, 129 of the C.P.C, and 27 of the Police Act authorize the grant of bail by the police pending the trial of the accused person except in respect of capital offences. It must be noted that the police only grant bail where the offence is bailable. Where bail is refused, the accused person must be charged to court within 48 hours.
BAIL BY THE COURT: For the purpose of bail by the court, offences are classified into: (a) Capital offences (b) Felonies other than capital offences; and (c) Misdemeanor and other simple offences.
Capital offences: Section 118(1) of the C.P.A and 34(1) of the C.P.C both provide that a Magistrate Court in Nigeria cannot grant bail to a person charged with the commission of an offence punishable with death. By Sec.118 (1) of the C.P.A, the High Court in the South may grant bail for capital offences. However, in practice, bail is rarely granted except where there exist cogent and compelling reasons. This was illustrated in the case of Oladele .v. The State (1993) 1 N.W.L.R.(PT 269) 308 where the court observed that murder being a very serious offence, it is not in the interest of the public that a person charged with murder be released on bail.
Under Sec 341(1) of the C.P.C, the High Court in the Northern States appear to be out rightly prohibited from admitting a person charged with a capital offence to bail except where it appears to the court that there are no reasonable grounds for believing that a person accused has committed the offence – section 341(3).
Felonies other than capital offences: These are offences punishable with imprisonment for a term exceeding 3 years. Both the Magistrate Court and the High Court may admit to bail a person charged with a felony other than a felony punishable with death at the discretion of the court.
Misdemeanour and other simple offences: Any person charged with an offence punishable by imprisonment with or without fine, not exceeding three years must be admitted to bail.
APPLICATION FOR BAIL
The application for bail is generally made in writing. However, it could be made orally in the Magistrate Court, but it is mandatory that in the Police station and the High Court, it must be in writing. In court, the application is made upon arraignment, after the plea of the accused person has been taken. Although the Court has the discretion to grant or refuse bail, the discretion must be exercised not only judicially but judiciously as well. In granting bail, the following factors must be considered: (a) the likelihood of the accused person attending his or her trial. (b) The likelihood of the accused person interfering with the proper investigation of the offence. (c) The nature of the offence and the severity of the penalty. (d) The likelihood of the accused person committing another offence while on bail. (e) The criminal antecedents of the accused person. (f) The prevalence of the offence. (g) The health condition of the accused person.
TERMS AND CONDITIONS UPON WHICH BAIL CAN BE GRANTED The terms or conditions upon which bail is granted must not be impossible or onerous to meet. The following are the terms or conditions upon which the police or court may grant bail:
1.Bail on self-recognizance: In this case, the accused or suspect is not required to enter a bond or provide sureties but only on the condition that he will ordinarily appear in court or the police station on a specified date to answer to the allegation made against him. However, in practice bail is rarely granted on this term except the alleged offender is a reputable and a responsible member of the society and the alleged offence is a minor one.
2.Bail on a bond for a fixed amount: A bail bond is a written undertaken executed by the accused person that he will appear when needed but with a fixed amount of money. Where he fails to appear to the court or police station when his attendance is needed, he is liable to pay the amount of money stated in the bond.
3.Bail on bond with surety(s): It is a three-party undertaking which involves the State, the accused, and a surety. The state releases the accused person on bail on the guarantee given by the surety that the accused person will attend his trial.
4.Deposit of money instead of a bond.
In addition, the courts often demand for additional security that the accused will attend his trial. Consequently, a court may demand that the surety must be resident within the jurisdiction, own landed property, or swear to an affidavit of means, or that the accused person shall deposit his international passport with the court.
REVOCATION OF BAIL Bail may be revoked if an accused person jumps bail. He is said to have jumped bail when he fails or refused to attend the court on the day fixed by the bail bond without good cause. The implication of jumping bail is that the court will issue a bench warrant that the accused be re-arrested and then the bail will be revoked.
Under the Nigerian judicial system, an accused person is presumed innocent until proven guilty. The issue of bail is not meant to free the accused but to protect his fundamental rights as guaranteed by the Constitution until his guilt is established. In other words, bail does not amount to an acquittal or discharge, but a temporary release pending the determination of his or her case.