By Yusuf Shehu Usman,mni

The basic law on the issue of bail of an accused person who is detained or taken into custody by the security agencies after an arrest, is very simple and not complicated at all

The issue of bail has a strong basis in the Constitution which is the highest law of the land.

The Constitution says that any person arrested, detained or charged before any court on the allegation of committing a criminal offence, is presumed to be innocent of the allegation or charges, until he is proved guilty by a court of competent jurisdiction

The Constitution also protects the right of any person detained in custody pending trial by making it illegal for the Police and other investigation authorities to detain any citizen accused of committing an offence for more than a maximum of 48 hours without bringing such a person before a court and without a charge

What does this mean?
It means under the constitution all offences including the offence of murder are bailable

It also means that nobody should be held in the custody of the police or any other investigation agency without a charge or an order of the court to that effect

Why then do the police, efcc etc still hold accused persons in excess of the constitutional time frame allowed by the Constitution?

They always claim that they are conducting investigation into the alleged offence and therefore arrogate to themselves the power to keep the accused in detention until they can get sufficient evidence to charge the accused to court

By doing so, the Police and other investigation authorities are putting the cart before the horse.

The Law requires that they should have a reasonable belief that a person has committed an offence before arresting any person and taking him to custody and if they do that, they can not keep him in custody longer than the Constitutional time frame. They must present him before a court or at least file a charge against him

It’s very clear that by doing so they are violating the fundamental right of the accused person. The Law doesn’t confer any such powers on them.

It’s therefore a clear breach of the Constitution and an infraction of the right of the citizen in custody

What should the Police do when they arrest and take into custody, any person suspected of committing an offence?

They should grant the accused an administrative bail if they can not charge him before a court within a maximum of 48 hours, because after that time, only the court can order the continued detention of an accused person

However, when a accused person is charged before a court and arraigned before a Judge, even though the Constitution presumes him innocent until proven guilty, his right to be released on bail is subject to the discretion of the Judge trying the case.

At this stage, bail though ordinarily a right, is not automatic as other considerations come into the mix

It should be further appreciated that even the discretion granted by the Law to the Judge to withhold bail, is not to be exercised arbitrarily or at the whims and caprices of the Judge

The Judge is obligated by the Law, to exercise the discretion judiciously and judicially after taking into account, all the circumstances of the case, including the gravity of the offence allegedly committed, the punishment prescribed by the law on conviction and the possibility of the accused jumping bail to abort or frustrate his trial.

Therefore, bail is a basic and fundamental right of any person accused of an offence. It’s a right based on the presumption of innocence

However the presumption of innocence is not an irrebuttable presumption of law. It can be rebutted by facts and evidence to the contrary and once it is so dislodged, bail becomes subject to the judicial discretion of the Court.

A clear example of this, is, after being convicted of the offence by the Court, even though the accused person has a right of appeal against the conviction to a higher court, he has lost both the presumption of innocence and the right to bail after conviction

The presumption of innocence has been dislodged by the conviction and the right to bail slips and is subsumed by the discretion of the Judge

. it’s not in every case that the court should grant Bail as of right to an accused or convicted person