Reforming bail system through bondsmen

The Lagos State Judiciary has held a stakeholders’
summit on ‘bondsman and recovery of recognisance’, reports ADEBISI
ONANUGA.

Where are the bond persons?’ asked Chief Judge of Lagos
State,  Justice Opeyemi Oke, as stakeholders gathered for a
summit.

It was organised to discuss the operation of bondspersons,
sureties and bonds companies as part of the efforts to enhance
criminal justice administration in the state.

The event was the The stakeholders’ summit actualising
the law on the bondsman and recovery of recognisance in Lagos 
State.

At the event were judges, magistrates, experts in bonds posting
and the civil society, among others.

The Practice Direction for Bondsmen and Bonds companies was
inaugurated at the event.

The Administration of Criminal Justice Law (ACJL) of Lagos State
2011 makes provision for bondmen. Lagos State judiciary is
pioneering the system.

What the law says

Section 138 of the ACJL 2011 authorises the licensing and
registration of Bondspersons by the Chief Judge of the State.

Section 138 (1) of the Law provides: “The Chief Judge may by
regulation, register and license individuals or corporate bodies or
persons to act as Bondspersons within the jurisdiction of the Court
in which they are registered.”

The law was followed with the setting up of a “Committee on
Creation of Bondsmen and Recovery of Recognisance” set up on
November 30, 2012. It was a matter of regret that to date, not one
individual or corporate organisation has been registered for the
scheme.

Justice Oke lamented the absence of licensed bondsmen to bail
defendants. She wondered why no individual or corporate body has
applied to be licensed bondsman and bonds company over eight years
after the Bondsmen Regulation of 2011 came into force in line with
Section 138 of the  ACJL 2011.

It was in line with her desire to see the scheme in operation
that she also set up another committee last February 27 with a
mandate to find ways to actualise the recommendations  of an
earlier Committee on Creation of Bondsmen and Recovery of
Recognisance set up November 30, 2012.

The 10-man committee was chaired by Justice Grace Onyeabo, with
Justices Mojisola Dada, Hakeem Oshodi, Sybil Nwaka, Abidemi,
Okikiolu-Ighile, Lateef  Lawal-Akapo,  Kudirat Jose,
Sedoten Ogunsanya,  Adedayo Akintoye  and Idowu Alakija
as members.

The Chief Registrar, Mrs. Taiwo Olatokun and Deputy Chief
Registrar (Admin.) Lagos, Mrs. Adebisi Femi-Segun were
Secretaries.

The Committee held its inaugural meeting last April 11 and
deliberated extensively at its various meetings on its terms of
reference.

In spite of the work done by the committee, no individual or
corporate body registered to participate in the bail bonds
scheme.

“I have been greatly concerned that in spite of the hard work
and deliberations of the Committee, nobody has signified interest
in registering as a Bondsman,” Justice Oke said.

She was, however, gladdened by the committee’s findings that
“the major hindrance to the commencement of Bondsman scheme in
Lagos State Judiciary is the lack of understanding of how it works
and lack of publicity by stakeholders on the forfeiture of
recognisance and registration of Bondsperson.

“Hence the Summit to create necessary awareness and bring to
fore creative ways of actualising the law on bondsperson in the
state”.

The Chief Judge, therefore, encouraged individuals and corporate
bodies to partner the Judiciary on actualising the bondsman scheme
in order to make bail more accessible to defendants standing trial
in courts.

She urged them to make necessary applications to join the
scheme, emphasising that it has been proven in other jurisdictions
that the professional bail bondsman brings important benefits to
the society in which it works.

She said the introduction of the bondmen was to make bail more
accessible to anyone charged with a criminal offence and prevent
touting by unlicensed persons and  defendants from absconding
from trials.

In the meantime, Justice Oke disclosed that the Bondsperson
scheme would be implemented with a pilot scheme that will operate
for six months in four courts, that is, two high courts and two
magistrates courts in Lagos and Ikeja Divisions

Justice Oke described the bondsmen scheme as very laudable,
pointing out that it would assist defendants to obtain bail and
ensure that such persons can be produced seamlessly as and when
needed in court.

She expressed confidence that the bondsperson scheme will
significantly reduce prison congestion and other problems
associated with same, while also ensuring that recognisance can be
recovered in full where persons on bail abscond.

How it works

On how it would work, Justice Oke explained that  Section
138 (8) of the ACJL confers on the bondsperson the power of arrest
should a defendant attempt to abscond.

She said: ”Every bondsperson shall have the powers to arrest any
defendant or suspect, who is absconding or who he believes is
trying to evade or avoid appearances in court: if he cannot bring
the person arrested within 12 hours of the arrest before a court,
he shall hand the person arrested over to the Police which shall
produce such person before the appropriate court.

“In the United States, bail bondsmen play an important role in
maintaining social control over bailed defendants.

“The bondsman and the defendant form a contract in which the
bail bondsman agrees, for a fee, to act as the defendant’s surety.
In addition to paying the fee, the defendant agrees to appear in
court for all scheduled appearances,” she said.

Making the system effective

In his lecture titled: A Practical approach to the
Bondmen procedure in the Justice system in Lagos State, a bail
bond expert, Dr Seyi Adetayo, noted that bondsmen practice has not
only helped defendants to access bail, but also assisted low income
group  to access justice.

Dr Adetayo said the introduction of the bondsmen would eliminate
the activities of touts masquerading as professional bondsmen and
other malpractices, adding that it would generate employment.

He described bail as the amount of money that acts as insurance
between the court and the person in court or jail, otherwise, the
defendant could escape from justice.

He said defendants, particularly in criminal matters, have the
option to pay for their bail in cash, adding that many found it
difficult to do this as bail is often set at a high amount.

He said this explained why most defendants are financially
unable to post bail by themselves. He said this is why they seek
help from a bail agent or bail bondsman, who will post a bail bond
for them to forestall them from being in prison custody while trial
lasted.

Adetayo  explained that there are two types of bail bond.
According to him, the criminal bail bond is used in criminal cases
and guarantees that a defendant appears for trial when called upon
by the court.

The civil bail bond, on the other hand, is used in civil cases
and guarantees the payment of a debt, plus interest and costs,
assessed against the defendant.

According to him, the name given to a firm whose business it is
to assume the responsibility and payment guarantee for the
obligations of another person is ‘surety bonds company’.

Such a company, he said,  is licensed to post bail
guarantee for a person brought before the court.

On the other hand, he described bondman or bonds agent as a
professional agent for an insurance company who specialises in
providing bail bonds for people charged with crimes and awaiting
trial.

While the scheme might appear alien in Nigeria, Adetayo said the
system of bondsman and surety bond company has been in practice in
the United States for many years and some other developed
countries.

Benefits of bonds system

Apart from checking the activities of ‘court touts’, Adetayo
explained that  licensed bondsmen are not useful to the
defendants, but  makes it possible for low income earners to
access justice.

He stated further that in addition to its being an avenue for
employment generation, it has the capacity for decongesting the
prisons.

It ensures that a defendant does not abscond from trial, he
said.

According to him, the scheme works perfectly in the US because
its social security system has a data bank that enables the people
to be captured and documented.

He said because of the country’s peculiarity, we must develop
our own approach to fit our system.

The requirements

For the process to be practicable in the country, Adetayo said
the scheme must begin with the process of registering and licensing
both bond person and the surety bond companies, which must be
incorporated in the country.

He also said the surety bond companies to be so licensed must be
able to post an insurance guarantee of not less than N10million
while the board members must have capacity to serve, but must
exclude persons from the judiciary,  a serving member of the
civil service, Ministry of Justice among others.

The bondperson, according to him, must not be less than 18
years, possess a minimum of Ordinary School Certificate Level
(O/L), satisfy and pass bondsman licensing examination, must be a
serving member of LEA, civil service or the judiciary and  has
not been convicted of a minimum of felony among other criteria.

The license of such practitioner, both individual and corporate,
must be renewable every two and three years respectively, he
said.

For the scheme to be a success, Adetayo advised the judiciary to
develop and approve bail schedule for the different levels of the
court to work with in order to curb malpractices and ensure
compliance with set rules.

He said an internal mechanism must also be put in place to check
the process for compliance and ensure  that too much burden is
not put on the person the law is meant to protect.

He advised on the need to appoint a registrar for bail postings
to set up mechanism for ethics and conducts, and establish a
three-way seemless filings and approvals among others.

Justice Kazeem Alogba also stressed the need for inter-agency
cooperation with the judiciary to make the scheme work, advising
the proposed surety bonds companies to latch on to insurance
companies, which could assist them to take on higher risks.

He stressed the need for police involvement in the scheme in
view of the fact that a court order would be required before a
suspect could  be remanded in prison custody.

Aside from suggesting an effective biometric system to lessen
the risks of those absconding, he advised magistrates to be wary of
bail conditions they grant in their courts in order for defendants
to meet them.

Justice Onyeabo described the bondsmen scheme as an innovation
of Lagos State, which would assist the police to arrest defendants
that have absconded and ensure effective criminal justice
administration system.

Speaking on the workability of the scheme, a senior lecturer in
Faculty of Law, University of Lagos (UNILAG), Akoka, Dr Akeem
Bello, disclosed that statistics in the US have shown that
defendants released on bond bail appear more in court for trial
than others. He expressed confidence that the scheme would improve
criminal justice administration in the state.

Bello suggested the creation of a unit in the judiciary to
oversee its implementation and for the scheme to take off on a
small scale at the initial stage.

To create awareness, Dr Bello said efforts should be made to
introduce it among the branches of the Nigerian Bar Association
(NBA), retired police officers, and businessmen among others.

Aside from organising training programmes for prospective bonds
persons and surety bonds corporate bodies, he also suggested that
they should be empowered to be able to obtain collateral security
from such defendants, like uncles, to ensure that defendants always
appear in court for trial.

Culled from TheNation