Stephen Ubimago, in this piece, examines the nature and
purport of bail and why from a legal standpoint it makes better
judgment to pursue the conclusion of IPOB leader Nnamdi Kanu’s
trial than revoking his bail…
Introduction
If the provisions of section 169 of the Administration of
Criminal Justice Act, 2015, is any guide, then of course, the
Federal Government is, within the limits of law, right in applying
to court to revoke the bail granted leader of the Indigenous People
of Biafra (IPOB), by a Federal High Court sitting in Abuja on April
25.
The law in that particular section of the ACJA provides: “Where
a defendant has being admitted to bail and circumstances arise
which, in the opinion of the Attorney General of the Federation,
would justify the court in cancelling the bail or requiring a
greater amount, a court may, on application being made by the
Attorney General of the Federation, issue a warrant for the arrest
of the defendant and, after giving the defendant an opportunity of
being heard, may commit him to prison to await trial, or admit him
to bail for the same or an increased amount.”
It has also been argued that the above ACJA provision finds
constitutional reinforcement in section 35 (1)(b) of the 1999
Constitutional, as amended, which stipulates that a citizen’s right
to personal liberty may be lawfully curtailed “by reason of his
failure to comply with the order of a court or in order to secure
the fulfillment of any obligation imposed upon him by law.”
Thus, when the Attorney General of the Federation, Malam
Abubakar Malami (SAN), on August 25 filed an application seeking
the revocation of Kanu’s bail, expressing a determination to see
Kanu return to custody, he had referenced the above provision of
the ACJA plus section 173 of the same law as the basis, saying Kanu
defied orders of the court in terms of the conditions upon which
the court freed him from custody.
The Federal Government maintained that it cannot as a
responsible government watch idly as Kanu brazenly defy the said
conditions without acting to remedy the breach.
It is recalled that on April 25, presiding judge, Justice Binta
Murtala-Nyako, while ruling on Kanu’s bail application, granted the
IPOB leader bail on conditions that: he must not hold rallies; he
must not grant interviews; he must not be in a crowd of more than
10 people; he must provide three sureties in the sum of N100
million each; one of the sureties must be a senior highly placed
person of Igbo extraction such as a senator; and the second surety
must be a highly respected Jewish leader since Mr. Kanu said his
religion is Judaism.
Other conditions were that the third surety must be a highly
respected person who owns landed property and is resident in Abuja;
the IPOB leader must deposit his Nigerian passport; he must also
deposit his British passport with the court; he must provide the
court with reports on the progress of his health and treatment on a
monthly basis; and the order for him to deposit his Nigerian and
British passports also mean he cannot travel out of the country (If
this is considered, it is the thirteenth condition).
Moral, Legal Arguments Against Kanu’s
Re-arrest
However, the decision of the AGF to secure the revocation of
Kanu’s bail has not been met without angst especially from among
persons and groups who seem to have sympathy for what Kanu is said
to have come to represent.
Arguing from a moral point of view to the effect that Kanu’s
agitation constitutes a nudging and an urgent call on the
conscience of the country’s political leadership to commence
immediate restructuring or adjustment of the country’s
constitutional order in radical and fundamental ways, the likes of
the Yoruba socio-cultural group, Afenifere, and their Igbo
counterpart, Ohaneze, say the AGF must exercise self-restraint
since he has lost the moral right to act against Kanu in light of
his double standard.
According to them, given that the AGF was aloof and arms akimbo
in failing to take decisive action against Arewa youths, who
sometime in June issued a quit notice on Igbo residing in the North
to vacate the area before October 1, he had lost the moral right to
pursue the re-arrest of the IPOB leader.
Arguing from a legal point of view, however, Kanu’s lawyers, led
by Ifeanyi Ejiofor, said they have “successfully challenged the
bail conditions referred to by the government.”
But whether or not the bail condition has been “successfully
challenged” by them, as Ejhiofor claims, it is recalled that indeed
on July 1, Kanu through his lawyer, Ejiofor, did file an
application requesting for the variation of his client’s bail
conditions on grounds that the Court could not in one breath grant
him his basic constitutional freedom, while on another seizing
it.
If the court is not permitted by law to approbate and reprobate
on a matter, then the said Kanu’s bail conditions should be varied
to allow him enjoy his fundamental rights, Ejiofor seemed to
argue.
“Remember that Kanu subscribes to Judaism. The court, for
example, cannot say that Kanu should not go to church or to a
supermarket or any such similar places. That condition and a few
others are part of what we are seeking to get the court to
interpret,” Ejiofor explained, while speaking to newsmen soon after
filing the application.
Dated July 1, the Motion (challenging the condition relating to
the number of persons Kanu was allowed to be seen with) sought
reliefs to the effect: “An order of this honourable court varying
the bail conditions given to the first defendant/applicant on April
25, 2017, by vacating paragraph 2(vii) and (viii) in the said
conditions, which stipulates ‘that the first defendant should not
be seen in a crowd exceeding 10 people; and that the defendant
should not grant any interviews, hold or attend any rallies,
respectively.”
The Motion invoked section 36 (5) of the 1999 Constitution,
which provides for the presumption of the innocence of a citizen
charged with criminal offence until his guilt is proven by a court
of competent jurisdiction.
“Paragraph 2(vii) in the order, which stipulates that the first
defendant/applicant cannot be seen in a crowd exceeding 10 people,
contradicts the applicant’s right to freedom of association, and
peaceful assembly granted by Section 40 of the Constitution of the
Federal Republic of Nigeria, 1999, (as amended),” the Motion
posited.
“Section 39 of the 1999 Constitution of the Federal Republic of
Nigeria as (amended) provides for citizens’ rights to freedom of
expression and press.
“The bail conditions granted the first defendant/applicant,
particularly conditions in paragraph 2(vii) and (viii) in the said
order, clearly discriminated against the first defendant/applicant,
and subjected him to certain disabilities and restrictions.”
Nature And Purport Of Bail
It is noteworthy that on the nature and purport of bail, the
Supreme Court in Dokubo-Asari v. Federal Republic of Nigeria held:
“The main function of bail is to ensure the presence of the accused
at the trial. This criterion is regarded as not only the omnibus
one but also the most important. As a matter of fact, it is the
mother of all the criteria enumerated above. As a matter of fact,
all other criteria are parasitic on the omnibus criterion of
availability of the accused to stand trial.”
The point of emphasis is that the essence of the grant of bail
is to secure the availability of the accused person in court for
his trial, simpliciter. It is constitutionally underpinned by
sections 35 (1), 36 (5) and 41 of the 1999 Constitution, as
amended, that guarantee citizens’ rights to personal liberty, fair
hearing and presumption of innocence until proven guilty, as well
as the freedom of movement. This was also the position held by the
court in Obekpe v. State.
Against the backdrop of the foregoing judicial pronouncements,
question have arisen as to how such bail conditions as Kanu “must
not grant interviews;” “he must not be in a crowd of more than 10
people;” or hold or attend rallies,” which the AGF cited as being
the reason for which the government seeks the revocation of his
bail and re-arrest, help to secure his presence in court for his
trial?
It is noteworthy that Kanu’s release on bail was not based on
the said promissory conditions. On the contrary it was based on his
fulfillment of the non-promissory, non-anticipatory or indeed
immediate ones, whose demand the courts traditionally makes in
criminal trials, and fulfillment of which often precede the release
of an accused person on bail.
Bail conditions like sureties in like sum, specific description
or characterization of the sureties by the court, and temporary
seizure of defendant’s passport by the state are immediate,
sufficient and exhaustive, which is why upon their fulfillment by
the accused, the court proceeds to release him; which therefore
makes the promissory conditions superfluous and pointless.
It has therefore been argued that since the anticipatory
conditions, in actual fact, did not form the basis upon which the
defendant secured his bail; why should flouting them constitute the
basis for revoking the bail?
It is recalled that Justice Nyako on April 25 had adjourned
hearing in Kanu’s trial to July 22. Curiously, however, the trial
has yet to commence, strengthening the criticism that all that
Nigeria’s criminal justice system is concerned about is committing
accused persons to custody without trial; and prosecution’s
resistance to grant of bail to the accused person, perhaps because
once bail is granted the accused, the prosecution goes to bed and
the matter hits an abrupt end.
Conclusion
Speaking in this connection, US-based Nigerian lawyer, Emeka
Ugwuonye told our reporter in a chat that one of the biggest
challenges facing criminal justice administration in the country is
that “90 percent of criminal trial in Nigeria dwells on the
pre-trial detention stage.
“Once you get bail there is hardly anything that is done
subsequently. 90 percent of people in Kirikiri prisons are awaiting
trial cases. It is the same across all prisons in the country.
Pretrial detention, which is the period you got detained before
your matter even went to trial, is supposed to be very short.
“In Nigeria that period could turn out to be even longer than
the legitimate jail term for the offence! So the greatest problem
of our criminal justice system is that 90 per cent of the effort
goes towards pre-trial detention.
“And so when the accused eventually comes out of detention, the
prosecutors would stop coming to court for the trial.
“The prosecutors would only go to court just when trial has not
even commenced against the accused person to urge the court to
commit the person to Kirikiri.
“Ordinarily the prisons ought to be reserved for persons who
have been convicted and sentenced to a jail term; not
otherwise.”
He concludes: “The state should rather proceed with Kanu’s trial
and forget about re-arresting him.”
Stephen Ubimago, in this piece, examines the nature and
purport of bail and why from a legal standpoint it makes better
judgment to pursue the conclusion of IPOB leader Nnamdi Kanu’s
trial than revoking his bail…
Introduction
If the provisions of section 169 of the Administration of
Criminal Justice Act, 2015, is any guide, then of course, the
Federal Government is, within the limits of law, right in applying
to court to revoke the bail granted leader of the Indigenous People
of Biafra (IPOB), by a Federal High Court sitting in Abuja on April
25.
The law in that particular section of the ACJA provides: “Where
a defendant has being admitted to bail and circumstances arise
which, in the opinion of the Attorney General of the Federation,
would justify the court in cancelling the bail or requiring a
greater amount, a court may, on application being made by the
Attorney General of the Federation, issue a warrant for the arrest
of the defendant and, after giving the defendant an opportunity of
being heard, may commit him to prison to await trial, or admit him
to bail for the same or an increased amount.”
It has also been argued that the above ACJA provision finds
constitutional reinforcement in section 35 (1)(b) of the 1999
Constitutional, as amended, which stipulates that a citizen’s right
to personal liberty may be lawfully curtailed “by reason of his
failure to comply with the order of a court or in order to secure
the fulfillment of any obligation imposed upon him by law.”
Thus, when the Attorney General of the Federation, Malam
Abubakar Malami (SAN), on August 25 filed an application seeking
the revocation of Kanu’s bail, expressing a determination to see
Kanu return to custody, he had referenced the above provision of
the ACJA plus section 173 of the same law as the basis, saying Kanu
defied orders of the court in terms of the conditions upon which
the court freed him from custody.
The Federal Government maintained that it cannot as a
responsible government watch idly as Kanu brazenly defy the said
conditions without acting to remedy the breach.
It is recalled that on April 25, presiding judge, Justice Binta
Murtala-Nyako, while ruling on Kanu’s bail application, granted the
IPOB leader bail on conditions that: he must not hold rallies; he
must not grant interviews; he must not be in a crowd of more than
10 people; he must provide three sureties in the sum of N100
million each; one of the sureties must be a senior highly placed
person of Igbo extraction such as a senator; and the second surety
must be a highly respected Jewish leader since Mr. Kanu said his
religion is Judaism.
Other conditions were that the third surety must be a highly
respected person who owns landed property and is resident in Abuja;
the IPOB leader must deposit his Nigerian passport; he must also
deposit his British passport with the court; he must provide the
court with reports on the progress of his health and treatment on a
monthly basis; and the order for him to deposit his Nigerian and
British passports also mean he cannot travel out of the country (If
this is considered, it is the thirteenth condition).
Moral, Legal Arguments Against Kanu’s
Re-arrest
However, the decision of the AGF to secure the revocation of
Kanu’s bail has not been met without angst especially from among
persons and groups who seem to have sympathy for what Kanu is said
to have come to represent.
Arguing from a moral point of view to the effect that Kanu’s
agitation constitutes a nudging and an urgent call on the
conscience of the country’s political leadership to commence
immediate restructuring or adjustment of the country’s
constitutional order in radical and fundamental ways, the likes of
the Yoruba socio-cultural group, Afenifere, and their Igbo
counterpart, Ohaneze, say the AGF must exercise self-restraint
since he has lost the moral right to act against Kanu in light of
his double standard.
According to them, given that the AGF was aloof and arms akimbo
in failing to take decisive action against Arewa youths, who
sometime in June issued a quit notice on Igbo residing in the North
to vacate the area before October 1, he had lost the moral right to
pursue the re-arrest of the IPOB leader.
Arguing from a legal point of view, however, Kanu’s lawyers, led
by Ifeanyi Ejiofor, said they have “successfully challenged the
bail conditions referred to by the government.”
But whether or not the bail condition has been “successfully
challenged” by them, as Ejhiofor claims, it is recalled that indeed
on July 1, Kanu through his lawyer, Ejiofor, did file an
application requesting for the variation of his client’s bail
conditions on grounds that the Court could not in one breath grant
him his basic constitutional freedom, while on another seizing
it.
If the court is not permitted by law to approbate and reprobate
on a matter, then the said Kanu’s bail conditions should be varied
to allow him enjoy his fundamental rights, Ejiofor seemed to
argue.
“Remember that Kanu subscribes to Judaism. The court, for
example, cannot say that Kanu should not go to church or to a
supermarket or any such similar places. That condition and a few
others are part of what we are seeking to get the court to
interpret,” Ejiofor explained, while speaking to newsmen soon after
filing the application.
Dated July 1, the Motion (challenging the condition relating to
the number of persons Kanu was allowed to be seen with) sought
reliefs to the effect: “An order of this honourable court varying
the bail conditions given to the first defendant/applicant on April
25, 2017, by vacating paragraph 2(vii) and (viii) in the said
conditions, which stipulates ‘that the first defendant should not
be seen in a crowd exceeding 10 people; and that the defendant
should not grant any interviews, hold or attend any rallies,
respectively.”
The Motion invoked section 36 (5) of the 1999 Constitution,
which provides for the presumption of the innocence of a citizen
charged with criminal offence until his guilt is proven by a court
of competent jurisdiction.
“Paragraph 2(vii) in the order, which stipulates that the first
defendant/applicant cannot be seen in a crowd exceeding 10 people,
contradicts the applicant’s right to freedom of association, and
peaceful assembly granted by Section 40 of the Constitution of the
Federal Republic of Nigeria, 1999, (as amended),” the Motion
posited.
“Section 39 of the 1999 Constitution of the Federal Republic of
Nigeria as (amended) provides for citizens’ rights to freedom of
expression and press.
“The bail conditions granted the first defendant/applicant,
particularly conditions in paragraph 2(vii) and (viii) in the said
order, clearly discriminated against the first defendant/applicant,
and subjected him to certain disabilities and restrictions.”
Nature And Purport Of Bail
It is noteworthy that on the nature and purport of bail, the
Supreme Court in Dokubo-Asari v. Federal Republic of Nigeria held:
“The main function of bail is to ensure the presence of the accused
at the trial. This criterion is regarded as not only the omnibus
one but also the most important. As a matter of fact, it is the
mother of all the criteria enumerated above. As a matter of fact,
all other criteria are parasitic on the omnibus criterion of
availability of the accused to stand trial.”
The point of emphasis is that the essence of the grant of bail
is to secure the availability of the accused person in court for
his trial, simpliciter. It is constitutionally underpinned by
sections 35 (1), 36 (5) and 41 of the 1999 Constitution, as
amended, that guarantee citizens’ rights to personal liberty, fair
hearing and presumption of innocence until proven guilty, as well
as the freedom of movement. This was also the position held by the
court in Obekpe v. State.
Against the backdrop of the foregoing judicial pronouncements,
question have arisen as to how such bail conditions as Kanu “must
not grant interviews;” “he must not be in a crowd of more than 10
people;” or hold or attend rallies,” which the AGF cited as being
the reason for which the government seeks the revocation of his
bail and re-arrest, help to secure his presence in court for his
trial?
It is noteworthy that Kanu’s release on bail was not based on
the said promissory conditions. On the contrary it was based on his
fulfillment of the non-promissory, non-anticipatory or indeed
immediate ones, whose demand the courts traditionally makes in
criminal trials, and fulfillment of which often precede the release
of an accused person on bail.
Bail conditions like sureties in like sum, specific description
or characterization of the sureties by the court, and temporary
seizure of defendant’s passport by the state are immediate,
sufficient and exhaustive, which is why upon their fulfillment by
the accused, the court proceeds to release him; which therefore
makes the promissory conditions superfluous and pointless.
It has therefore been argued that since the anticipatory
conditions, in actual fact, did not form the basis upon which the
defendant secured his bail; why should flouting them constitute the
basis for revoking the bail?
It is recalled that Justice Nyako on April 25 had adjourned
hearing in Kanu’s trial to July 22. Curiously, however, the trial
has yet to commence, strengthening the criticism that all that
Nigeria’s criminal justice system is concerned about is committing
accused persons to custody without trial; and prosecution’s
resistance to grant of bail to the accused person, perhaps because
once bail is granted the accused, the prosecution goes to bed and
the matter hits an abrupt end.
Conclusion
Speaking in this connection, US-based Nigerian lawyer, Emeka
Ugwuonye told our reporter in a chat that one of the biggest
challenges facing criminal justice administration in the country is
that “90 percent of criminal trial in Nigeria dwells on the
pre-trial detention stage.
“Once you get bail there is hardly anything that is done
subsequently. 90 percent of people in Kirikiri prisons are awaiting
trial cases. It is the same across all prisons in the country.
Pretrial detention, which is the period you got detained before
your matter even went to trial, is supposed to be very short.
“In Nigeria that period could turn out to be even longer than
the legitimate jail term for the offence! So the greatest problem
of our criminal justice system is that 90 per cent of the effort
goes towards pre-trial detention.
“And so when the accused eventually comes out of detention, the
prosecutors would stop coming to court for the trial.
“The prosecutors would only go to court just when trial has not
even commenced against the accused person to urge the court to
commit the person to Kirikiri.
“Ordinarily the prisons ought to be reserved for persons who
have been convicted and sentenced to a jail term; not
otherwise.”
He concludes: “The state should rather proceed with Kanu’s trial
and forget about re-arresting him.”
Read more https://nairalaw.com/why-govt-should-proceed-with-kanus-trial-than-re-arrest-him-by-stephen-ubimago/