Concept of Bail
CHAPTER ONE
Objective of the Study
This study is targeted to achieve the following objectives:
- The need to respect the constitutional right to bail of every suspected criminal save in compelling right other than bail.
- The need to respect court’s order as it relates to enforcement of fundamental rights other than bail.
- It is sought to create awareness on the citizens on their constitutionally guaranteed rights.
- This study is also aimed at exposing the unconstitutional practice of holding charge with a view of detaining a suspect.
CHAPTER TWO
LITERATURE REVIEW
The Concept Of Bail
The concept of bail has a long history in English Common Law. As far back as 1689 in the Bill of Rights, English Parliament held that bail must be reasonable, a principle which was later incorporated into the American 8th Amendment to the Constitution, which states that “excessive bail shall not be required nor excessive fines imposed nor cruel and unusual punishments inflicted”.
However, there existed a concept of circuit courts during the medieval times in Britain. Judges used to periodically go on circuit to various parts of the country to decide cases. In the meanwhile, those under trials were kept in prison custody awaiting their trials. These prisoners were kept in very unhygienic and inhumane condition and this caused the spread of a lot of diseases. This agitated the under trials, who were hence separated from the accused. This led to their release on their securing a surety, so that it was ensured that the person would appear on the appointed date for hearing. If he did not appear, then his surety would be held liable and was made to face trial. Slowly the concept of monetary bail came into existence and the said under trials was asked to give a monetary bond, which was liable to get forfeiture on non-appearance.
In the Magna Carta in 1215, the first step was taken in granting rights of citizens. It said that no man could be taken or imprisoned without being judged by his peers or the law of the land. Then in 1275, the Statute of Westminster was enacted which divided crimes as bailable and non-bailable. It also determined which judges and officials could make decisions on bail.
In 1677, the Habeas Corpus Act was added to the Rights of Petition of 1628, which to the defendant the rights to be told of the charges against him, the right to know if the charges against him were bailable or not. The Habeas Corpus Act 1679, states ‘A magistrate shall discharge prisoners from their imprisonment taking their recognizance with one or more surety or sureties, in any sum according to the Magistrate’s discretion, unless it shall appear that the party is committed for such matter offence which by law the prisoners is not bailable.’
In 1689, came the English Bill of Rights, which provides safeguards against judges setting bail too high. It states that ‘excessive bail hath been required of persons committed in criminal cases, to elude the benefits of the laws made for the liberty of the subjects. Excessive bail ought not to be required.’
In 1976, the Bail Act came into force. It sets out the current and the basic legal position of bail prevailing in England. It lays out that there is a general right of bail, except as provided for under the first schedule of the Act. But there is also the additional ground that if the court is satisfied that there are ‘substantial grounds for believing’ that the defendant if released on bail will commit an offence while on bail, bail may be refused.
CHAPTER THREE
BAIL AND FUNDAMENTAL RIGHTS
Bail and the Enforcement of Fundamental Rights in Nigeria
The hallmark of the chapter shall be anchored upon Bail Vis- a vis fundamental rights. We had in the preceding chapter dealt extensively on the definition of bail and human right. However for the purposes of emphasis, bail is a constitutional right of a suspect, which may hardly be denied. On the other hand, fundamental rights are rights which have been elevated above every other right and enshrined and guaranteed in the Constitution. The right to bail is more constitutional that it is statutory or within the inherent power of the Court as was held in Osuji V State1.
CHAPTER FOUR
RECOMMENDATION AND CONCLUSION
Recommendations
In order to further encourage the use of the various alternatives to pre-trial detention offered in the proposed reforms legislation, it is proposed that compensation should be paid to accused persons who, though lawfully detained, are eventually found innocent of the charges against them.
By and large, S.36 (5) of the 1999 Constitution is inelegantly drafted. At an appropriate occasion the section should be re-drafted in order that the constitutional provisions on the important issue of bail is not a subject of conjecture. In re-drafting the section the interest of both the accused and the society should be taken into consideration.
Conclusion
The practice of admission to bail as it has evolved in common law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.2
While this statement adequately sums up the correct approach to the administration of bail, our survey of both the law and practice of bail in Nigeria has demonstrated that this does not appear to be the prevailing position in Nigeria. Bail would often seem to be administered in such a way as to serve a device for keeping persons in jail upon the mere accusation of a crime, sometimes even before investigation has been concluded, rather than as a means of enabling persons to stay out of jail until a trial has found them guilty. Obsolete, incoherent and inconsistent legislation help to perpetuate the practice.
BIBLIOGRAPHY
- A G Karibi-whyte (1986): Human Rights Law and Practice in Nigeria: An introduction; Enugu ,CIDJAP Publisher.
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- Duncan Bloy & Philip Parry (1996): Principles of Criminal Law: Third Edition: Cavendish Publishing Ltd, London.
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- Funmi Quadri (2005): Nigerian Criminal Cases with EFCC Act and ICPC Act.
- A. Yakubu & A .F .Oyemo (1999) : Criminal Law and Practice in Nigeria,Malthouse Press Ltd, Lagos
- Oluwatoyin Doherty (1999): Criminal Procedure in Nigeria: Law and Practice; Blackstone Press Ltd
- Olakanmi & Co. (2007): Handbook on Human Rights: Law Lords Publications, Abuja
- Osita Nnamani Ogbu (1999): Human Rights Law and Practice in Nigeria: An introduction, Enugu CIDJAP Publishers.
- The Law of Akwa Ibom State (2000) Vol 2.
