Nigerian Courts and their Punitive Bail Conditions | Seun Lari-Williams

Benjamin Franklin is reputed to have said: “Justice will not be served until those who are unaffected are as outraged as those who are.” I find that every time I read those words, I wonder if anyone can actually describe themselves as “unaffected”. Clearly, we are all in one boat, if there are holes in my side of the boat, you should be concerned because sooner or later, we will all sink. Many agree that this is the story of humanity indeed.

It is in light of the above, that I deem it important that we discuss and find a solution to the problem of the ever-increasing number of those awaiting trial in our prisons.

Nigerian prisons are overcrowded but that is not the only problem with our criminal justice system. Another serious problem is that our prisons are filled mostly with persons who have not been found guilty of any offence: persons awaiting trial. As in, we are literally punishing many people who have been wrongly accused and are innocent.

This is worrisome, especially because it is no longer news that there is a lot of corruption in the land, and this includes corruption in the Nigeria Police Force. Indeed, the implication of corruption in the NPF is that an unimaginable number of people in prison are there because they are victims of corrupt practices.

One would probably not feel too bad about being arrested for no just cause if when the matter is brought to court, the judge will upon seeing the lack of any reasonable case against you, immediately dismiss the charge.

Unfortunately, this is not how our criminal justice system works. What happens in reality is this:

  1. After you have been arrested, you are brought to court where you are put in a dock and charges are read to you;
  2. Your plea is taken as to whether you are guilty or not guilty;
  3. If you plead “not guilty”, you are granted bail (if the offence you are charged with is bailable);
  4. But you cannot enjoy this bail except you meet certain conditions which the Judge or Magistrate has set down.
  5. If you meet the bail conditions, you will be allowed to go home from where you’d be coming to court to answer the case against you;
  6. If you do not or cannot meet the bail conditions, you will be taken to prison and you will remain there until the matter comes to an end and this can take many months or even years.

Thus, naturally, our prisons are filled with mostly persons who are awaiting trial and cannot afford to meet their bail conditions.

Why this is very disturbing is that every day, corrupt police officers arrest persons for no just cause and very often, these persons cannot afford to meet the bail conditions set down by the Judge. Therefore, these unfortunate persons have no choice than to remain in prison until their matter comes to an end where it will be discovered that the charges against them was bogus.

Just imagine for a second, that some corrupt police officer arrests an Okada man for no other reason than that the Okada man did not give him N100 like all the others have. And then the officer makes up a bogus charge claiming that the Okada man stole a motor cycle. And then this our Okada man is granted bail so that he can come from home to answer this bogus case. The problem our Okada man will face will be meeting the bail conditions. If he cannot provide everything the Judge imposes as conditions, this innocent man will be left in Kirikiri prison until the case is over. And there have been instances like this where cases take 4 or even more years.

The above illustration actually happens every single day. And it appears to me that the reason why bail conditions are stringent is because often times, Judges tend to limit themselves to the nature of the charges before them in order to determine what bail conditions to impose. This should not be, especially because, the charges may very well be baseless.

Also, I believe another reason why bail conditions are stringent, at least in Lagos State, is that the Government now use the criminal justice system as a means to generate revenue. This shouldn’t be. They do this by insisting that sureties must have paid their taxes and this must be evidenced by a tax clearance. The view that tax collection should be distinct and separated from our criminal justice system is in my opinion much better than the current situation. As it is, indigent accused persons are the ones who suffer this type of hardship the most as they often cannot find friends or family who can afford to pay the amount required as taxes required for bail.

The foregoing is why our prisons are filled with indigent accused persons; the bail conditions are simply unaffordable. Sometimes, the court requests that only persons high up in the civil service must be provided to stand as surety. This presumption that everybody can get somebody up in the civil service to stand as surety is clearly an unfair one. Clearly, not everyone can find persons who meet these criteria to stand as surety for them.

Bail conditions should not cost an arm and a leg. Bail conditions should not be punitive. The purpose of these conditions is simply to ensure that an accused person is available to answer the case brought against him every time he is needed in court. The Supreme Court of Nigeria has said this time and time again.

It is surprising that in spite of provisions of the Supreme Court’s pronouncements on the issue and our Constitution which seeks to protect the fundamental rights of an accused person, our criminal courts still impose such punitive terms and conditions. The Constitution provides that anyone who is accused of committing an offence must be presumed innocent until it is proven that such a person is guilty [see Section 36 (5) of the 1999 Constitution].

The wahala here is how to reconcile what the Constitution says in 36(5) with the fact that most people in prison have actually not been found guilty of any offence? This alone should serve as basis for giving humane bail conditions. It simply does not make sense that persons who are “presumed innocent” are spending months and even years in prison just because they cannot meet bail conditions.

A fundamental principle popular in many criminal justice systems around the world is this: “it is better that ten guilty persons escape than one innocent person suffer”. It appears the reverse is the case in Nigeria. Therefore, this practice of stipulating harsh and unfair bail conditions that are often too difficult to meet by the accused person is not only unjustifiable under the law but inherently evil.

This poor state of affairs in our criminal justice system is another example of how poorly we treat the weakest amongst us. Our criminal courts must stop making bail conditions so unfair and difficult for the common man to meet.

Many lawyers and Non-Governmental bodies have been providing pro bono services for indigent accused persons in an attempt to reduce the hardship caused by our criminal justice system. Unfortunately, this has had only a minimal impact. More needs to be done. And it must come from a change in the attitude of the courts. Perhaps what will help better will be sensitising our Judges about the purport of a bail and the presumption of innocence.

Meanwhile, we should continue to encourage (and thank) lawyers who give help to those victims whose cases have come their way. They are doing a wonderful job. And also, we must be grateful for the few judges who don’t impose arduous conditions on persons presumed innocent. It is just unfortunate that the guilty party in all this is the “last hope for the common man” — the court.


Originally published at www.seunlw.com on February 15, 2017.