Bail: The Right Of The Accused

According to the Black’s law dictionary “bail” is defined
as “a security such as cash or bond; especially security required by a court for the release of a prisoner who must appear in court at a further trial”.  In Mohammed Abacha V The State: (2002) 5 NW.LR (PT 761) 187 the Supreme Court defined bail as the “means to set at liberty a person arrested or imprisoned on security being taken for his appearance on a day and place certain”.
Bail simply put is a way by which a person arrested for committing a crime is released based on the condition that he will appear whenever his presence is required.  The grant of bail is on the presumption of innocence.  To guarantee and protect this presumption of innocence in favour of a person charged with an offence, the 1999 Constitution provides for the right to personal liberty.  In Onyirioha V. Inspector General of Police (2009) 3NWLR (Pr 1128) 342 at 375 the court stated thus:
It is now settled beyond peradventure that a Nigerian citizen is entitled to his God given natural rights free from incarceration save in accordance with all fundamental laws of the Land….”
Bail is a conditional right guaranteed by section 35 of the 1999 Constitution.  It is an important component of the right to personal liberty as enshrined in Section 35 of the 1999 Constitution which provides thus:
Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following…………….”
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 an order of court.
2.Upon reasonable suspicion of his having committed a criminal offence and
3.In order to preventing 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 (one day) in the case of an arrest or detention in any police station 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 circumstance of the case, the court considers reasonable.
Note that in denial of one’s personal liberty, the court must consider the following  factors:  the seriousness of the charge, the strength of the evidence, the accused persons background and community ties, any previous convictions particularly for  failing  to attend court in the past, whether on police or court bail for other matters and if the accused is still subject to any court sentence.
It is not enough to say that based on Section 35 of the 1999 Constitution, there is a constitutional right to bail. This is because for the grant of bail, there are certain conditions that must be fulfilled.  But who grants the bail?  Under the Nigerian Criminal Procedure Code (C.P.C) applicable in the North and the Criminal Procedure Act (C.P.A), applicable in the South, both the police and the court have the power to release a suspect or an accused person on bail.  This can be done by the police pending further investigation or by the cour pending the determination of the accused persons appeal against this conviction.
Section 17 of the CPA, 129 of the CPC 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.  Where bail is refused the accused person must be charged to court within 48 hours.
For the purpose of bail by court, offences are classified into (a) Capital offences (b) Felonies other than capital offences and (c) Misdemeanor and other simple offences.
Section 118 (1) CPA and 34 (1) CPC 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 Section 118 (1) CPA, 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, as illustrated in Oladele V. The state (1993) I 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.  For Felonies other than capital offences.  Both the Magistrate and High Courts may admit to bail a person charged with a felony other than a felony punishable with death at the discretion of the court.  For misdemeanor 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.

Nkechi Bright Ewere