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.
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