The constitution of Nigeria provides for bail of an accused person generally. The provision of bail is largely hinged on presumption of innocence. Bail is a constitutional right; S. 35(4), s35(5) and s36(5) of the Constitution of FRN 1999( as amended) on the right to personal liberty.
Section 35(4) 1999 Constitution. However it is pertinent to note that some offences are bailable and some in the discretion of the court are not.
The essence of bail is not to free the accused person permanently but to ensure accused comes and stand trial when the time is due. In order to ensure the presence of an accused person who has been granted bail in court, some stringent measures are put in place such as bail bonds, sureties and seizure of the accused travel documents. These terms must be reasonable and not excessive. It should not also be as a way of punishing the accused person.
With respect to Nnamdi Kanu who was arrested by the Federal government of Nigeria on a charge of treason and also admitted on bail due to health grounds. The bail conditions are to wit;
1. Mr. Kanu must not hold rallies.
2. He must not grant interviews.
3. He must not be in a crowd of more than 10 people.
4. He must provide three sureties in the sum of N100 million each.
5. One of the sureties must be a senior highly placed person of Igbo extraction such as a senator.
6. The second surety must be a highly respected Jewish leader since Mr. Kanu said his religion is Judaism
7. The third surety must be a highly respected person who owns landed property and is resident in Abuja
8. The IPOB leader must deposit his Nigerian passport
9. He must also deposit his British passport with the court
10. He must provide the court with reports on the progress of his health and treatment on a monthly basis.
11. 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).
This bail terms were however subject of controversy. Many have argued that the bail terms are in itself a breach of right of freedom guaranteed in the constitution. Counsel to Nnamdi Kanu has also argued that
“Section 169 of the ACJA being relied upon by the AG can’t avail the Attorney General absolute power to ask for the revocation of bail. Parties must be heard on the merit by the court, ” Mr. Ejiofor said.
Mr. Ejiofor also said the alleged security outfit created by Mr. Kanu is a “mere group” formed in the exercise of the citizen’s constitutional right.
He added that the group cannot “by any stretch of the imagination” constitute themselves into a security threat. He further stated “Let me remind the public that the main essence of bail is to ensure that the person affected stands his trial and nothing more.
“Our client is ready to stand his trial but the federal government is not willing to open their case, they are rather interested in keeping my client behind bars which can’t happen again.”
In Abacha v. State (2002) FWLR (Pt. 98) 863, it was held inter alia that the most proper test whether bail should be granted or refused is the probability that the accused will appear to take his trial. In that regard, the court further held that it is proper to consider the nature of the offence, the nature of the evidence in support of it and the severity of the punishment which the conviction will entail.
Indeed, all other factors/conditions for bail revolve around this important factor since the main function of the bail is to ensure the presence of the accused at the trial.
The court has the power to revoke bail due to security reasons and overriding public interest. The AGF has the inherent power to make the application. It is after the application that the accused person may be heard showing cause why bail should not be revoked. the defendant. 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.
CAN THE COURT REVOKE BAIL ON GROUND THAT THE TERMS HAVE BEEN VIOLATED?
Generally the courts have the inherent power to revoke the bail of an accused person and some of the grounds for revocation includes the following;
1.If an accused who was granted bail by the Magistrate Court is also indicted for an offence at the High Court.
S. 132 of the CPL and
S. 127 ACJL.
2.If the accused failed to appear for his trial with no reason.
3.The surety applies to be discharged. NB: CT will not immediately revoke bail, they give the accused an opportunity to substitute the surety. Only when the accused cannot procure a surety that is to the satisfaction of the CT will the CT revoke bail.
S. 129 ACJL,
S. 134 CPL and
S. 351 CPCL.
4.The accused granted bail is about to leave Nigeria and an information is given to the
Court-S. 130 of CPL
5. If the grant was based on fraud. Bail can be said to be obtained by fraud where the facts stated In the bail application are not true. Where the applicant deliberately misled the court. In the case of Nnamdi Kanu, severe ill health has been stated as exceptional circumstances but since bail was granted, the applicant has not been seeking medical treatment nor reporting as directed by the court. Rather evidence and the activities of Nnamdi Kanu has shown that he is medically strong.
Generally treason is not a bailable offence, however Nnamdi Kanu, leader of the indigenous people of Biafra (IPOB) was granted bail by the Federal High Court on health ground and one of the bail conditions is that He must provide the court with reports on the progress of his health and treatment on a monthly basis and not to be seen in a gathering of not more than 10 persons. There are not reports as to whether he is undergoing any medical treatment whatsoever and he has organised rallies and protest in a crowd of more than 10 persons. Is this enough to revoke his bail and does the Attorney General of the Federation have the power to make an application for revocation of bail?
S. 158 of ACJA provides for general entitlement of bail.
When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a court, he shall, subject to the provisions of this Part, be entitled to bail.
S. 161 of ACJA also provides that suspect arrested, detained or charged with an offence punishable with death shall only be admitted to bail by a Judge of the High Court, under exceptional circumstance. In the case of Nnamdi Kanu the exceptional circumstances is hinged on the ground of severe ill health.
169.Where a defendant has been admitted to bail and circumstances arise which 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.
From the provision above, it is pertinent to note that the Attorney General of Federation can make an application for Nnamdi Kanu to be re arrested if his opinion can justify the court to cancel the bail. This is at the discretion of the court to either grant or refuse. Notwithstanding, in this circumstance court orders and conditions must simply be adhered to and where this is not done, the court must act. There is no gain saying that if the AGF in his application can justify that Nnamdi Kanu has flouted his bail terms, the bail will be revoked. The terms of the bail is the very foundation of which the bail lies and where these terms are flagrantly flouted, then bail can be cancelled by the court, notwithstanding the fact that the accused can be present when needed. The activities of Nnamdi Kanu were the reasons he was arrested in the first place. Now he is out on bail and still perpetuating those activities that in the eyes of government and Nigerians threaten national unity and security. The essence of bail is to ensure the accused attend his trial as rightly pointed out by Counsel to Nnamdi Kanu but where bail terms are flouted, the court has the discretion to cancel or revoke such bail if it is of the opinion that it is necessary expecially one bordering on national security.