Bail in Nigeria: A Constitutional Right and Its Limitations: by Gontul Kenubeh Timothy. Esq

INTRODUCTION
The right to bail is a constitutionally recognised right. However, the term “Bail is free”, as enshrined in the constitution seems to be difficult to guarantee, especially when it comes to its enforcement in the hands of the authorities in charge.
In some cases, even after the person accused or detained is exonerated from such accusations and deem innocent, the authorities in charge may still require some “tips” or term it “bail requirements”, before the realease of such an individual.
In criminal law, bail is the temporary release of an arrested individual from detention under specific terms. It is a cornerstone of justice that seeks to avoid needless detention of those who are believed innocent until proven guilty, as the main function of bail is to ensure the presence of the accused during trial.  The right to bail in Nigeria is protected by the Constitution and further clarified by the 2015 Administration of Criminal Justice Act (ACJA)

STATUTORY FRAMEWORK FOR BAIL IN NIGERIA
The right to bail in Nigeria finds its roots in Section 35(4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(CFRN), which states:
“Every person who is arrested or detained shall be brought before a court within a reasonable time and shall be entitled to bail, except where charged with a serious criminal offence.”
In addition to recognising the value of individual liberty, this constitutional clause aims to avoid unwarranted protracted incarceration.
The ACJA 2015 further reinforces the right to bail through various provisions, notably Section 158, which states:
“An accused person shall be entitled to bail except in the following circumstances:
a) where there are reasonable grounds for believing that the accused person, if released, would commit additional offences;
b) where there are reasonable grounds for believing that the accused person would attempt to pervert the course of justice;
c) where there are reasonable grounds for believing that the accused person would not stand trial;
d) where the charge against the accused person is for an offence punishable with death.”
These provisions outline the general principle that bail should be granted liberally, while acknowledging certain exceptions where the interests of justice may necessitate detention.

TYPES OF BAIL IN NIGERIA
Generally, an accused person is not meant to be denied bail unless on charges of capital offences, which have its exception. See BOLAKALE v. STATE (2006) 1 NWLR (Pt.962) at 511.
There are basically two types of bail that can be secured in Nigeria, police bail and court bail.
A.Police bail: Also known as administrative bail, is given by the police at the beginning of an investigation, prior to the suspect being formally charged in court. It is frequently given for offences that are not serious or when the authorities do not have enough proof to hold the offender. In general, police bail is less formal and may include requirements like the suspect or accused going to the police station on a regular basis pending investigation of the case.
B.Court Bail: This kind of bail is given by a judge or court, which must be exercised judiciously(see DOKUBO-ASARI V. FRN (2007) LPELR – 958 (SC). Court bail is sub-divided into two types:
I. Bail pending trial: This is given to the accused while they are waiting for their trial. Conditions for the release are specified by the court and may include reporting requirements, travel limitations, financial surety, and surety bonds. See JACK V. C.O.P (2011) LPELR 3855.
II. Bail Pending Appeal: This is granted to a convicted person who has appealed their conviction at the trial court. The court may grant bail while the appeal is being heard, allowing the person to remain free until the appeal is decided. See the case of UCHENNA v. IGP (2023) LPELR-61058 (CA)

BASIC CONDITION CONSIDERATIONS
The grant of bail is not an automatic right. Courts must consider various factors to ensure that the interests of justice are served. These factors  include the following:
a.The nature and seriousness of the offence: Stronger and stringent bail requirements or even the refusal of release may be necessary for more serious offences, such as capital offences. See MAMMAN V. STATE (2012) ALL FWLR (Pt.621) 1542 at 1547
b.The prosecution’s strength of case: In the event that the prosecution makes a compelling case, the court might be more likely to refuse bail in order to keep the accused from escaping.
c.The accused’s background and personality: The court may take into account the accused’s community connections and any criminal history they may have.  Some accused could even get killed outside by the  community or otherwise. Bail could be denied to protect the life of the accused if the tension is high outside based on the circumstances of the offence committed.
d. Accused interference with witnesses or evidence: There are plethora of occasions where the accused, after being granted bail, goes out to either terminate the life of vital witnesses or even tamper with evidence that could be used against them. See OMODARA v. STATE (2004) 1 NWLR (Pt.853) 83.
e.The likelihood that the defendant will escape the jurisdiction: So, in order to evaluate the accused’s financial situation and travel history, the court may assess the risk of flight or accused likelihood to abscond jurisdiction of trial.

COURTS ROLE ON BAIL
The court must act prudently and impartially, balancing the accused constiutional rights with the need to uphold public order and guarantee the proper administration of justice. The enactment of the ACJA 2015 has had a significant impact on Nigerian bail jurisprudence, providing a comprehensive legal framework for the grant and denial of bail. The court is crucial in deciding whether to grant bail and, if so, under what conditions. The conditions attached to grant of bail must not be suffocating, unbearable, unworkable, and unduly burdensome. See ABACHA v. STATE (2002) 5 NWLR (Pt. 761) 638.

BAIL IMPLEMENTATION CHALLENGES
Despite the legal framework in place, the implementation of bail in Nigeria faces several challenges:
a. Judicial Discretion: The broad discretion afforded to judges in bail matters can sometimes lead to inconsistencies and disparities in decisions.
b. Corruption: Corruption within the judiciary and law enforcement agencies can undermine the integrity of the bail process.
c. Lack of Awareness: Many individuals are unaware of their rights to bail and the procedures for obtaining it.
d.Overcrowding in prisons: Overcrowding in Nigerian prisons could enhance the problem of prolonged detention, as many individuals who should be granted bail remain incarcerated due to lack of space.

CONCLUSION
A vital component of guaranteeing the just administration of justice in Nigeria is bail, a fundamental right. The Constitution and the ACJA 2015 provide precise principles for bail, establishing a well-established legal framework. But, issues like court discretion, corruption, and ignorance still make it difficult to apply bail effectively in real-world situations. It is imperative to advance judicial education and training, improve accountability and openness in the legal system, and increase public knowledge of the right to bail in order to address these issues.