The Right To Freedom Pending Trial By Ebun-Olu Adegboruwa, SAN

Criminal prosecution in Nigeria requires an urgent overhaul, as
citizens are being taken to court now and then to face trial,
especially at the crucial stage of seeking bail for the defendant.
Where a citizen is for instance, is arrested and detained on
alleged attempt to overthrow the federal government based mainly
upon his peaceful protests, then we need to interrogate the process
to achieve effective dispensation of justice. The relevant question
then is this: what happens to the defendant before the court comes
to a final determination of his guilt or innocence? What should be
our attitude to the liberty of citizens facing criminal trials,
especially where such is tagged with the toga of capital
punishment?

First, I have made the case in times past that we need to
urgently review our criminal justice system in order to liberalise
the concept of bail. The original bail regime of the colonialists
was predicated upon punishment, a move that was adopted to
discourage the nationalists who were demanding independence then.
We got that independence some 59 years ago and we should be done
with that mentality by now. Prosecutors cannot carry on criminal
prosecution in the same fashion of the ‘war’ times of the British
oppressors and make it a life and death issue. Second, whether we
like it or not, the spiral effects of the anti-corruption war on
the judiciary will take a long time to settle. It would have been
great if we could all sit down and agree to develop exclusive legal
principles for the anti-corruption war that would not be applicable
to or affect other court cases. Judges and lawyers can then all
agree, that decisions taken by the courts in proceedings relating
to corruption cases should be limited to that cause and not serve
as precedence for other cases. If not, in another five years or so
from now, we can all well say goodbye to constitutional rights and
freedoms. The dilemma is this however; we are totally displeased
with and detest any form of corruption, especially the criminal
looting of funds that should have been deployed for the common
good. And because the prosecution of this heinous crime involves
political allies and opponents, there is so much bile and passion
that cause either side to keep pushing very extreme positions of
absolute freedom or total clampdown. It is for the Courts to find a
balance between them, relying on the existing laws.

Section 36 (5) of the Constitution guarantees the presumption of
innocence until the contrary is proved. Some have pushed for the
abolition of this constitutional right, in order to achieve
effective prosecution of the anti-corruption war. The defendant
should establish his innocence, they posit. I have no doubt that
this dangerous campaign has impacted seriously on the minds of
judges handling corruption cases. Of course the blame is placed
squarely on the looters, as if you don’t go near the public
treasury and your hands are clean, there is really no need for any
fear. Experience has shown however that people abuse and take
advantage of otherwise harmless positions for personal gain. If
section 36 (5) is truly applied by the courts, we should by now
have a common position on matters of bail in criminal trials, such
that there would not even be any need for a formal application, so
long as the defendant and his counsel are able to furnish
satisfactory assurance to the court, of his availability to face
his trial speedily.

Under and by virtue of section 35 of the Constitution, every
citizen is entitled to right to personal liberty, but one of the
restrictions to the exercise of that right as expressed under
section 35 (1) © is where it is necessary to bring him before a
court to be arraigned. But once arraignment has taken place, the
opportunity for bail should automatically provide a temporary
restoration of the right to personal liberty, all things being
equal. According to the learned authors of the authoritative text
The Criminal Law and Procedure of the Southern States of Nigeria,
Akinola Aguda, page 76 at paragraph 253, “Bail are sureties taken
by a person duly authorized, for the appearance of an accused
person at a certain day and place, to answer and be justified by
law.” Thus, in Ekwenugo v. F.R.N (2001) 6 NWLR (Pt. 708) 171 at 187
para G, bail means to set at liberty a person arrested or
imprisoned, on security being taken for his appearance, on a day
and place certain. In the case of Elisha v C.O.P. (1974) 4 ECSLR
362 at page 367, it was held that: “The essence of bail is that the
accused person appears to take his trial.” See also, Eyu v State
(1988) 2 NWLR (Pt. 78) 602, where it was held that the sole purpose
for granting bail is to enable an accused person to come back to
face his trial and also Dogo v. COP (1980) 1 NCR 14 at 19, where it
was held that the sole requirements as to bail are primarily to
secure the attendance of the accused person at the trial. Although
the exercise of bail is a matter of discretion for the court, but
where the conditions of bail are stringent or excessive, then it
amounts to denial of bail. This much is stated clearly in section
165 (1) of the Administration of Criminal Justice Act that “the
conditions for bail in any case shall be at the discretion of the
court with due regard to the circumstances of the case and shall
not be excessive.”

I am mindful of the fact that we have situations in our courts
where a defendant is granted bail and he thereafter absconds, even
in the case of very responsible sureties, but that is preferable
for us in law than that a defendant should die in custody. As we
say, it is better for 99 suspects to escape the punishment that
they richly deserve than for one innocent man to be held or
sentenced wrongly. Let us harmonize the positions, namely that
defendants should brace up and willingly submit themselves for
trial and not be adopting dilatory tactics of constant medical
trips abroad or perfecting the style of preliminary objections to
frustrate the trial. In the same vein, prosecutors must match the
facts of their cases from their investigations with the appropriate
charges. How does a man levy war against the government of a
country like Nigeria, or even an entity such as Cross-River State,
when he has no weapons, he has no army, no gunships or even a
single aircraft, when in all his protests, attendance is less than
1000 armless civilians? Whoever will truly believe that such a
person will really overthrow a sitting government! It is taking it
to the extreme, I dare say.

It is important that the judiciary appreciates the fact that
activists are actually fighting for the courts, in point of fact.
When we say that everyone should be free, when we clamour for press
freedom, for the rule of law and good governance, it is an indirect
struggle for judicial independence and autonomy. This same last
week, it was reported that a judge in Asia shot himself with his
own pistol, in protest against his inability to read his own
judgment according to his own conscience. He was compelled to
change the judgment he had initially written by some powerful
forces and he reasoned that it was better to end his life than be
humiliated. We know and can imagine the plight of the judiciary in
these times, but no one has ever come out to admit to being part of
any undue influence on judges, which only means that such policy
would be wrong and illegal, if contemplated or perpetrated. So, let
the courts seize the moment and do the needful, by delivering
judgment according to law and conscience.

Now why would a citizen pay for his liberty by way of bail? What
if he pays the money and still absconds? And if a man is based in
Lagos, lives and works in Lagos and has verifiable address in
Lagos, why would he be remanded or restricted to another city, with
all the attendant costs of living outside his base? Is the man not
already serving the sentence for the offence for which he is yet to
be tried or convicted? But even at that, how does a court go about
putting citizens under house or city arrest? Does a court have such
powers, at the interlocutory stage of any proceedings, to
‘sentence’ a suspect under house arrest and restrict his movement
to just one town? What then is the difference to say that he has
now been granted bail? The State (government) is the father of all;
your children can err, but you may not bare your fangs on them to
unleash all the plenitude of your powers, for their total
destruction. There must be something that the government is
teaching other defendants or even convicted persons, with such
trials, about the failure of our criminal justice system, if the
goal always is to secure the remand of accused persons, even before
their due trial. It sounds vindictive and oppressive indeed, if
citizens cannot secure bail before their trial, due to the
stringent opposition of the government.

I know the semantics of the judicial dictate of rulings and the
procedure for appeals, but this is a matter affecting the liberty
of citizens and there must be some form of collaboration between
all stakeholders involved, for a soft landing, if and when a
defendant in such circumstance presents fresh request for the
consideration of the courts. By all means let the defendant be
tried, but let him be free temporarily, let him not hinder the
trial or jeopardize it in any way, but be responsible and loyal to
the judicial system that is to grant him his temporary freedom.

The Honourable Minister of Police Affairs, Muhammad Dingyadi has
assured youths, of Government commitment to quality education and
security which will engender a peaceful environment particularly at
the Colleges of Education. He made this statement while receiving
the Executive members of the National Association of Nigerian
Colleges of Education in his office on Monday, 7/10/19.

The Minister commended the zeal to learn and the peace in
colleges of Education, due to the able leadership of the President.
He said teacher education is significant because teachers produce
all class of professions in the country.

While promising to honour their invitation on the forth coming
seminar, he assured them he is still part of the Association even
though he is called to serve as a Minister of the Federal
Republic.

Speaking earlier, Comrade Mammud Abubakar, President of the
Association along with his team congratulated the Honourable
Minister of Police Affairs on his appointment.  He said the
Association is happy that the Hon. Minister is at a vantage
position in government to help students of Colleges of Education
particularly in the area of security since he was once their Board
Chairman.

While corroborating the fact that the Nigeria Colleges of
Education is the most progressive of all institutions in the
country, he informed the Minister that there are 157 Colleges of
Education nationwide mainly in rural areas which require security
going by the current security challenges in the country.

He concluded by wishing the inviting the Hon. Minister to speak
at a seminar later in the year
Odutayo Oluseyi

AD Press &Public Relations Unit