Bail

The sequence in Nigeria is set by the Constitution and by the Administration of Criminal Justice Act.

A person arrested must be informed of the reason. They must be brought before a court within a reasonable time, and the Constitution defines that as twenty four hours where a court of competent jurisdiction is within a forty kilometre radius, and forty eight hours otherwise.

At the police station, bail for offences that are not capital may be granted by the police, and the Administration of Criminal Justice Act 2015 provides that this is free. Police stations are required to display a notice saying so. Payment demanded for bail is not a fee, it is a bribe, and it is unlawful.

Before a court, bail is applied for and the court considers the nature of the offence, the strength of the evidence, the likelihood of attendance, the risk of interference with witnesses, the character and antecedents of the defendant, and health considerations.

Sureties are the usual condition. A surety undertakes to produce the defendant and may be required to show they are resident, employed or own property, and they can be called on if the defendant absconds.

Two problems dominate Nigerian bail in practice.

The first is payment. Despite the law and the notices on station walls, money is routinely demanded for police bail. It is unlawful, and the correct response is to ask for the officer's name, ask to see the divisional police officer, and record what is happening. Complaints can be made to the police complaint response unit and to the National Human Rights Commission, and legal aid organisations take these matters.

The second is excessive conditions. Courts sometimes impose bail terms so onerous, requiring sureties with particular property or bank statements at a level the defendant's family cannot meet, that the grant of bail becomes a refusal in practice. Nigerian appellate courts have said repeatedly that conditions must not be excessive, and an application to vary conditions can be made.

Delay is the underlying issue behind both. A large proportion of the Nigerian prison population is awaiting trial, and bail is what stands between a person and years in custody on an undecided case.

Where bail is refused by a magistrate, an application can be made to the High Court, and for capital offences that is the route in any event.

Three parts of the same process that get confused.

Police bail is granted at the station before a person is charged in court, for offences that are not capital. It is free, and it is meant to be granted where the conditions for it are met rather than treated as a favour.

Court bail is granted by a magistrate or a judge once a charge is filed. It is applied for, argued, and decided on the factors the law sets, and it can be refused.

A surety is a person, not a payment. They undertake responsibility for the defendant's attendance and may be required to demonstrate means or provide documents. If the defendant absconds, the surety can be called to account for the sum in which they stood.

None of these involves paying money to an officer. Where money is genuinely required, it is a deposit ordered by a court and paid into court, not cash handed across a counter.

Bail is not automatic. Courts refuse it where the offence is grave, where there is a real risk the defendant will not attend, or where witnesses may be interfered with.

Capital offences are the clearest case, where bail is available only from the High Court and only in exceptional circumstances.

Conditions can also be practically unreachable, particularly for defendants without property owning relatives, which is how bail granted becomes custody continued.

And the remedy for unlawful detention is itself a court process. Fundamental rights enforcement proceedings exist and are used, but they take time that the person in custody is spending in custody.