NBA raises alarm over stringent bail conditions, warns against erosion of constitutional rights

The Nigerian Bar Association (NBA) has expressed concern over what it described as the growing practice by courts and law enforcement agencies of imposing excessive and difficult-to-meet bail conditions, warning that the trend is undermining the constitutional right to personal liberty and the presumption of innocence.

In a statement issued on Thursday, NBA President, Mazi Afam Osigwe (SAN), said the increasing insistence on stringent bail requirements by courts and agencies such as the Nigeria Police Force, the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices and Other Related Offences Commission (ICPC), and other security bodies was effectively turning bail into a form of pre-trial punishment.

According to the NBA, many defendants who have been granted bail remain in detention because the conditions attached to their release are practically impossible to satisfy.

Osigwe noted that demands for sureties who are senior civil servants on specific grade levels, as well as requirements for landed properties of exceptionally high value, have become common features of bail conditions in many criminal cases.

He argued that such conditions defeat the fundamental purpose of bail, which is to guarantee an accused person’s appearance in court while preserving his or her liberty pending trial.

“The consequence is that many persons who are constitutionally presumed innocent and have ostensibly been granted bail remain incarcerated because the conditions attached to their release are beyond their reach,” the NBA president said.

He stressed that bail is a constitutional safeguard and not a punishment mechanism, adding that the law requires bail conditions to be reasonable, practical and attainable.

The NBA cited the Supreme Court’s decision in Suleman & Anor v. Commissioner of Police, Plateau State (2008), where the apex court held that the purpose of bail pending trial is to grant an accused person freedom before trial under conditions that will secure his appearance in court.

According to Osigwe, bail should never be transformed into a process that creates insurmountable obstacles to an accused person’s release.

The association expressed particular concern over the continued practice of requiring sureties who are serving civil servants on Grade Levels 16 and 17, often accompanied by demands that such sureties own properties worth hundreds of millions of naira.

The NBA noted that appellate courts have repeatedly criticised such requirements.

It referenced the judgment of the Court of Appeal in Dasuki v. Director-General, State Security Service & Ors (2019) LPELR-49182 (CA), in which the court condemned the mandatory use of senior public officers as sureties.

According to the association, the appellate court described the practice as inconsistent with modern legal systems and incompatible with public service regulations.

The court also questioned the logic of requiring a civil servant on Grade Level 16 to possess property worth N100 million, observing that such expectations are unrealistic and could conflict with anti-corruption standards within the public service.

The NBA further pointed to the provisions of the Administration of Criminal Justice Act (ACJA), 2015, which expressly stipulate that bail conditions should not be excessive.

Osigwe noted that while courts possess discretion in granting bail, such discretion must be exercised reasonably and in accordance with constitutional guarantees.

He warned that conditions that are impossible to fulfil amount, in effect, to a denial of bail and contribute significantly to prolonged pre-trial detention and overcrowding in correctional facilities.

The NBA president also criticised the restriction of acceptable sureties to a specific category of citizens, particularly senior civil servants, describing the practice as discriminatory and unsupported by evidence.

“There is no legal, empirical or rational basis for assuming that civil servants are inherently more reliable as sureties than other law-abiding citizens,” he said.

He argued that such requirements unnecessarily narrow the pool of potential sureties and create barriers to the enjoyment of a constitutional right.

The association called on judges and magistrates across the country to remain guided by the Constitution, the ACJA and established judicial precedents when determining bail applications.

It urged courts to ensure that bail conditions are fair, proportionate and realistically attainable by accused persons.

The NBA also reminded judicial officers that every defendant remains innocent until proven guilty by a competent court of law and that the administration of justice must strike a balance between protecting individual rights and ensuring attendance at trial.

Osigwe stressed that safeguarding the constitutional right to bail is critical to preserving public confidence in the justice system and the rule of law.

He warned against a situation where access to bail becomes dependent on wealth, influence or social status.

“As guardians of the rule of law, we must collectively ensure that the constitutional right to bail remains meaningful and effective,” he said.

The NBA maintained that bail must remain a legal mechanism for securing an accused person’s appearance in court and not a privilege available only to individuals with extraordinary means or connections.