The Nigerian Bar Association (NBA) has raised concerns about a troubling trend in Nigeria’s criminal justice system: the growing use of excessive and impractical bail conditions that keep accused persons in detention despite being granted bail.
Speaking for the legal profession, NBA President Afam Osigwe warned that many courts and law enforcement agencies are turning bail into a form of pre-trial punishment.
His concerns strike at a core constitutional principle: every accused person is presumed innocent until proven guilty.
When Bail Becomes a Fiction
Under Nigerian law, bail is meant to ensure that an accused person attends trial. It is not designed to punish, humiliate, or imprison someone before conviction.
Yet many Nigerians granted bail remain in custody because they cannot meet the conditions imposed.
A common example is the requirement for sureties who are senior civil servants on specified grade levels. Others must provide landed property worth tens or hundreds of millions of naira within the court’s jurisdiction.
For many Nigerians, these demands are impossible to satisfy.
As a result, a court may grant bail, but the accused remains in prison.
This creates the appearance of judicial leniency while producing the same result as a denial of bail.
As Osigwe noted, such practices turn bail from a constitutional safeguard into a tool of pre-trial detention.
The Constitutional Problem
Section 35 of the Constitution of the Federal Republic of Nigeria guarantees the right to personal liberty.
Section 36 further protects the presumption of innocence by providing that every person charged with a criminal offence is presumed innocent until proven guilty.
These protections lose meaning when a person remains incarcerated because bail conditions are impossible to meet.
A market trader, student, mechanic, or modestly paid civil servant may have no realistic way of producing a Grade Level 16 officer or valuable landed property as security.
Justice should not depend on wealth or connections.
The Administration of Criminal Justice Act Speaks Clearly
The law is clear.
Section 165(1) of the Administration of Criminal Justice Act (ACJA) 2015 gives courts discretion to grant bail, but it also requires that bail conditions not be excessive.
The purpose of bail is to secure attendance at trial, not to create barriers that keep defendants detained.
Courts must balance the seriousness of the offence against the circumstances of the accused.
Unfortunately, many appear to apply the same stringent conditions regardless of defendants’ economic realities.
The Dasuki Precedent
The NBA’s concern is not new.
In Dasuki v. Director-General, State Security Service & Ors, the Court of Appeal criticised the requirement of serving public officers as mandatory sureties.
The court recognised that such conditions can restrict access to bail and undermine its purpose.
The decision is an important reminder that judicial discretion must be exercised reasonably and in line with constitutional principles.
A bail condition that cannot realistically be met is effectively a denial of bail.
Justice for the Rich and Justice for the Poor
Perhaps the most troubling consequence of excessive bail conditions is the inequality they create.
A wealthy, politically connected defendant may satisfy stringent conditions within hours.
A poorer defendant facing a similar charge may spend months or years in detention awaiting trial because he cannot produce a high-ranking civil servant or valuable property.
The result is a two-tier justice system.
One for the rich and influential.
Another for ordinary Nigerians.
Such a system offends both legal principles and basic standards of fairness and equality before the law.
A Call for Judicial Reform
The NBA deserves credit for highlighting this issue.
Judges and magistrates must remember that liberty is the rule, while pre-conviction detention should be the exception.
Courts should adopt practical measures that secure attendance at trial rather than imposing conditions that function as detention orders.
Alternatives such as recognisance bonds, community-based sureties, periodic reporting requirements, and other less restrictive measures can often achieve the same objective without infringing constitutional rights.
The criminal justice system must never lose sight of a simple fact: a person on trial is not a convicted criminal.
Until guilt is proven beyond reasonable doubt, the Constitution requires that person to be treated as innocent.
Conclusion
The NBA’s warning should serve as a wake-up call to Nigeria’s judiciary and law enforcement agencies.
Bail exists to protect liberty, not undermine it. When courts impose conditions that ordinary citizens cannot meet, bail becomes meaningless and constitutional rights are reduced to empty promises.
Justice must not be reserved for those with wealth, influence, or access to senior civil servants. A fair justice system requires bail conditions that are attainable, reasonable, and consistent with the constitutional presumption of innocence.
Anything less risks turning the promise of justice into an instrument of oppression.
Centre for Nigeria Progress 