IMPACT OF COVID 19 ON BAIL APPLICATION AND RELEASE FROM PRISON IN NIGERIA: THE NEED TO SAFEGUARD FUNDAMENTAL RIGHTS OF PERSONS

The impact of Corona virus on everyone’s life cannot be overemphasized. It is disheartening that the world is experiencing such pandemic in a time like this. One peculiar feature of this Covid 19 is that, it does not discriminate as to those it affects. Although, according to WHO, older people and people with pre-existing medical conditions such as asthma, diabetes or heart diseases seem to be more vulnerable to becoming severally ill with the virus. People living in poverty, homelessness and in overcrowded environment like those in Nigerian Correctional centers and police stations will find it much harder to practice preventive measures and the virus can spread easily because of poor facilities. Therefore, the need to prevent the spread of this Covid 19 to these vulnerable ones in detention is pivotal and essential at this moment. 

Chapter IV of the 1999 Constitution provides for the fundamental rights which are not nebulous as it can be derogated from. However, section 45 (1) of the 1999 Constitution of Nigeria provides for instances when the fundamental rights may be restricted to include: in the interest of public defence, public safety, public order, public morality or public health and there must be a law that is reasonably justifiable in support of the derogation. The government in ensuring that this fundamental right is respected and preserved has enacted laws (e.g Ebonyi state) and some states invoked existing laws to derogate the fundamental right of movement and association in the interest of public health.

The government is taking urgent measures to curb the spread of Covid 19 and to safeguard public health and provide medical care to those who need it. They are also making effort to preserve the human rights of health and of life itself. Inevitably, these measures limit our other human and fundamental rights to an extent. However, while the Corona virus has an impact on everyone’s life, some people are more affected than others. From people dependent on care to those detained in overcrowded conditions with poor sanitation and healthcare like our correctional centers.

Prisons are public correctional institutions established by government where inmates, both suspects and convicts are detained.  It is common knowledge that virtually all the prisons nationwide are overflowing with inmates, both those convicted and those awaiting trials.  

Dismally, due to the barefaced lapses in the system, the prison system which is supposed to be reformatory has eventually turned to punitive and hell to inmates, thereby defeating the true essence of sending convicts to prisons.  The implication of this antipode system of prison administration is that the inmates in our prisons come out more criminally minded than they were before conviction. It is not enough for Nigerians to continue to pay lip service to the issues of prison decongestion when in actual sense; there are several practical ways of proffering solutions to prison decongestion and the need to curb the spread of Covid 19 to these vulnerable ones.

On the need to decongest cells and prevent the spread of corona virus, the IGP, Mohammed Adamu, had in a statement on Sunday, March 22, directed zonal Assistant- Inspector – Generals of Police and Commissioners of Police in various commands to reduce suspects in detention. The IGP, while urging officers to observe personal safety measures, further directs the Zonal AIGs and CPs to ensure that cases of unnecessary arrests and detention of suspects are not condoned. He reiterates that detention of suspects must be reduced to the barest minimum and that only serious cases such as terrorism, armed robbery, homicide and other non -bailable offences should warrant detention. The IGP further directs that adequate measures be emplaced to screen persons to be committed into police custody.

According to Punchng Newspaper published on 24th March, 2020,(now extended indefinitely) The Chief Justice of Nigeria and Chairman of the National Judicial Council, Tanko Muhammad, have directed all heads of courts to suspend sittings from Tuesday (today) for the initial two weeks. The directive reads, 

Further to my earlier Circular Ref. No. NJC /CIR /HOC /II/ 629 dated 20th March, 2020, on the above subject matter. In view of the reality of the COVID – 19 in the country and in order to take further preventive steps, all Heads of Courts are, from tomorrow, March 24, 2020 directed to suspend court sittings for an initial period of two weeks at the first instance, except in matters that are urgent, essential or time bound according to our extant laws. 

He gave the directive as part of efforts to curb the spread of the deadly corona virus in the court. Deducing from the intent of the directive of the Chief Justice, it is apropos to state that he took into consideration matters that demands urgent attention because of its time essence and permitted the Courts to entertain such matter despite the total lockdown of the Courts. This directive is in line with the Latin Maxim “Generalibus specialia derogant” which means special things derogate from general things. 

The preamble of the Fundamental Right Enforcement Procedure Rules 2009 in paragraph (g) states: Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the applicant or any person, the case shall be treated as an emergency. Considering the provision of the preamble, it is barefaced that fundamental rights matters especially the liberty of citizens can be entertained during this lockdown because of its urgent nature.

The 1999 Constitution of the Federal Republic of Nigeria (as amended) is the organic law of the Country. It declares in formal, emphatic and binding principles the rights, liberties, powers and responsibilities of the people, both the government and the governed. It is the duty of the authorities, including the judiciary to ensure its observance. The position of the Courts is quite crucial in this regard for the purpose of safeguarding the Constitutional rights of persons through effective intervention whenever, in an appropriate case, it is shown that such rights have been violated. In such a situation, the matter should be closely scrutinized to make sure that any decision reached conforms to the spirit of the Constitutional guarantee. The Fundamental rights are regarded as part of human rights and the regnant trend is to protect such rights for the enhancement of human dignity and liberty. 

The negative impact covid 19 will cause on those in correctional centers, police cells and other detention centers can be curbed or prevented by the following:

1. Granting of bail application to persons detained

2. Exercise of the powers to release from prison by the Chief Justice of Nigeria and Chief Judges of States

3. Exercise of the power of prerogative of Mercy by the President and Governors. 

The best time for the exercise of these powers is now because it will help in preservation of the right of liberty, right to life and prevention of the spread of Covid 19 among inmates. However, this article does not intend to discuss the three abovementioned subject matter in general.

Bail is a basic right of every citizen of Nigeria who is charged with a criminal offence by virtue of section 35(1) of 1999 Constitution. Thus, every person is entitled to his personal liberty and no person is to be deprived of his liberty except as stipulated by the Constitution and or statute. And in furtherance of that right, section 35(4) of the 1999 Constitution provides that any person who is arrested or detained in accordance with subsection (c) of the section must be brought before a court of law within a reasonable time and if he is not tried within a period of- (a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail: or (b) three months from the date of his arrest or detention in the case of a person who has been released on bail. He shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for his trial at a later date. The section is, however, excluded where a person is detained upon a reasonable suspicion of having committed a capital offence. 

Bail is a temporary release of an accused/defendant/suspect from custody to sureties on condition given to ensure the accused/defendant/suspect’s attendance in court or some other places pending the determination of the case or investigation-SULEMAN & ANOR v COP., PLATEAU STATE [2008] 8 NWLR (PT. 1089) 298

The Court in the case of ONYEBUCHI V FRN & ORS (2007) LPELR-CA/L/358/07 held that the main function of bail is to ensure the presence of the accused at the trial. So if there is any reason to believe that the accused is likely to jump bail or to interfere or influence his trial bail will properly be refused by the trial Court in exercise of its discretion in dealing with the application. The effect of granting bail especially in non capital offences is not to set the accused person free at all times in the criminal process, but to release him from custody of the law and to entrust him with the assurance of appearing for his trial at any specific time and place.-ADELEKE v. STATE (2018) LPELR-CA/B/403C/2017(R)

Police bail is the temporary release of a person arrested and detained in connection with a crime. Bail by the police is that pending investigation. Bail is a constitutional right.–Section 35(4) and (5) 1999 CFRN and a suspect ought to be granted bail if it is a bailable offence. In recognition of this constitutional provision, the Police are empowered to grant bail to arrested persons where it is impossible or impracticable to bring them before a Court within a reasonable time as required by the constitution. The police have powers to grant bail other than for an offence of a capital nature.

Bail may be granted upon application for bail. There are no laid down procedure for application for bail before the police station. It can be made by the suspect or by another person. It can be in writing or orally–Section 18(3) ACJL and Section 32(3) ACJA. In practice, it is usually in writing. Bail pending investigation is revocable. The police bail can be revoked by the police if the term upon which the bail was granted was not fulfilled. Once the bail has been revoked by the police it is only the court that can grant the bail again. Once a suspect has been arraigned in the court, the police bail elapses. The legal practitioner should then apply for bail from the court. 

According to Section 17(2) ACJL, the terms of Police bail or conditions to fulfill include:

1. Self recognizance – this is based on social status and integrity of the suspect 

2. Entering into a bond for a fixed sum.  3. Provisions for surety/sureties 

Bail pending trial is the process by which an accused/defendant is released temporarily from custody to sureties on conditions given to ensure his attendance in court whenever he is required, until the determination of the case against him—ONYEBUCHI V. FRN (supra). It is granted only by the court after proceedings have commenced and can only be made after suspects have been arraigned in court. Granting of bail by the Court depends on whether the offence is a simple offence, misdemeanor or a felony. Bail is usually refused in respect of a capital offence except in special circumstanceslike ill-health that is so compelling that a refusal of same may lead to hazard or death.

Factors or criteria to be considered by the Court in an application for bail pending trial are as follows:- (a) the nature and gravity of the offence; (b) the character of the evidence (c) the severity of the punishment; (d) the criminal record or antecedents of the accused person; (e) the likelihood of the repetition of the offence by the accused person while on bail. (f) likelihood of further charge being brought against the accused person; (g) probability of guilt of the accused person; (h) evidence that if the accused person is granted bail the prosecution witnesses will be in deferred with or prevented from appearing to testify; and (i) detention for the protection of the accused person, The above factors are not exhaustive and need not co-exist and the Court can rely on one or more of them in the exercise of its discretion judiciously or judicially to grant or refuse an application for bail –DOKUBO-ASARI v. FEDERAL REPUBLIC Of NIGERIA (2007) 12 NWLR (Pt. 1048) 320

The Court in AKEEM v FRN [2017] ALL FWLR (PT 872) 1518 where TSAMMANI, JCA at 1564 to 1565, paras D – B held as follows: 

Now, Section 162(a)-(f) of the ACJA has enumerated instances when bail may be denied an accused person. Aside those instances, it appears to me that in recognition of the constitutional right to bail, Section 162 of the ACJA, 2015 requires that upon an application by a person charged with the commission of an offence punishable with imprisonment for a term exceeding three (3) years, such person shall be released on bail.

Section 162 ACJA reads: “A defendant charged with an offence punishable with imprisonment for a term exceeding three years SHALL on application to the Court, be released on bail except in any of the following circumstances: (a) where there is reasonable ground to believe that the defendant will, where released on bail, commit another offence; (b) attempt to evade his trial; (c) attempt to influence, interfere with, intimidate witnesses, and or interfere in the investigation of the case; (d) attempt to conceal or destroy evidence; (e) prejudice the proper investigation of the offence; or (f) undermine or jeopardize the objectives or the purpose or the functioning of the criminal justice administration, including the bail system.” It is obvious that the above provision was framed in mandatory language to the effect that the trial Court has no discretion when considering an application for bail when the accused person was charged with an offence punishable with imprisonment for a term exceeding three years. Unless it is shown that the circumstances in Section 162 (a) to (f) are shown to exist, a Court is bound to grant bail to an accused. –OGEDE v. FRN (2018) LPELR-CA/L/1322C/2017

Bail pending appeal: Upon conviction, a person loses the presumption of innocence guaranteed him under Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). He is therefore not entitled to bail pending the determination of his appeal except in special or exceptional circumstances. What is special or exceptional circumstance varies from case to case.-ACHEM v. FRN (2014) LPELR-CA/A/361c/2013

The Court in the case of ADEBISI v. FRN (2017) LPELR-CA/L/1256/2015(R) stated out factors to be considered in granting or refusing bail pending appeal. The primary consideration is that there must be a special circumstance clearly disclosed in the affidavit in support. Other conditions necessary for the Court to consider before granting bail pending appeal are: a. that the applicant has indeed, infact lodged an appeal to the Court of Appeal which is pending. b. That he has complied with conditions of bail imposed, as this will show seriousness of his application; c. If he was granted bail during the trial, that he has not attempted or tried to jump during trial.

Since the main function of bail is to ensure the presence of the accused at the trial and not an acquittal, the court should ensure that detainees who are able to meet up the bail application are granted bail. The positive impact of granting bail in this period of Covid 19 is that, it will lead to decongestion of the correctional centers and police station cells, it will help in safeguarding of the fundamental rights of detainees, it will also curb the spread of Covid 19 considering the fact that our detention centers don’t have good health facilities not to talk more of ICU/ventilators. Therefore, considering the urgent nature of the fundamental right enforcement for liberty, the court should not hesitate in granting bail to any applicant who meets the bail conditions in order to achieve these positive impacts

The Chief Justice and Chief Judges are empowered by Section 1 of Criminal Justice (Release from Custody) Special Provisions Act, Cap 79, 1990 hereinafter called (CJRCSP ACT) to order the release of any person, if they are satisfied that the detention of that person is manifestly unlawful or where the person has been detained for period longer than the maximum period of imprisonment for the alleged offence.  The Section provides:

(1) Where, in respect of any person detained in any prison in Nigeria, not being a person detained in execution of a sentence of a court or tribunal duly constituted by law, the Chief Justice of Nigeria or the Chief Judge of a State is satisfied that the-

(a) detention of that person is manifestly unlawful; or

(b) person detained has been in custody, whether on remand or otherwise, for a period longer than the maximum period of imprisonment which the person detained could have served had he been convicted of the offence in respect of which he was detained, the Chief Justice or the Chief Judge may issue an order of release to the officer in charge of the prison and such officer shall on receipt of the order release the person named therein.

In the face of the above provisions, it is therefore worrisome that in Nigerian Prisons, there are thousands of inmates who have been in custody without trial and conviction for periods over and above the maximum period they ought to have spent should the court had convicted them.

The beauty of the above provision is that the draftsmen with the clear intention of ensuring that the implementation does not offend the provisions of Section 175 and 212 of 1999 Constitution which conferred power only on the President and Governors respectively to grant pardon used the word “Release”.

The implication of the provision of Section 1(1) CJRCSP ACT is that the CJN and CJs can only exercise the power of release over persons that are not serving any sentence of court to enable them attend trial from outside the prison custody. The legal effect of the exercise of this power includes:

1. Preservation of the right to liberty.

2. It does not stop the Court proceedings.

3. It does not stop further re-arrest, because it is just a discharge from illegal detention.

A judicious exercise of the above power would ensure that persons who have been in prison custody for an unusually prolonged period of time would be released. This would in turn decongest the prison and help curb the spread of Covid 19.

Black’s Law Dictionary, 10th Edition, the word “Pardon” is defined as an official decision not to punish somebody for a crime, or to say that somebody is not guilty for a crime; the action of forgiving somebody for something; to officially allow somebody who has been found guilty of a crime to leave prison and/or to avoid punishment; to forgive someone for something they have said or done. 

In Nigeria such power is exercisable only by the president and governors. The power to pardon is clearly spelt out in section 175(1)(a) and 212(1)(a) of the constitution of the Federal Republic of Nigeria, 1999 (as amended)

Section 212 (1) of the 1999 Constitution as amended provides: – “The Governor may;- a) Grant any person concerned with or convicted of any offence created by any law of a State a pardon, either free or subject to lawful conditions.

The above section received the benefit of judicial blessing in the recent case of FRN v. ACHIDA & ANOR (2018) LPELR-CA/S/178C/2017 wherein the Court departed from its previous judgment held in the case of FRN v. ALKALI & ANOR (2018) LPELR-45237(CA). The Court held: 

The fundamental question before this Court is what is the meaning of the phrase “concern with or convicted of any offence” in Section 212 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999; whether it includes the Respondent who has not been convicted of any offence but was standing trial for an allegation of commission of an offence under the Penal Code Law of Sokoto State. There must be guilt for the exercise of pardon to be activated, taking into consideration the presumption of innocence in Section 36 of the 1999 Constitution. It therefore follows that the power of a Governor to grant pardon, is only exercisable after the person to be pardoned has been convicted and/or has exhausted his right of Appeal against his conviction. See C.O.P. V. ALI (2003) FWLR (Part 157) 1164 at 1180 (CA).” Per BAYERO, J.C.A. (Pp. 102-103, Paras. C-C)

Thus, to contemplate the grant of pardon to an offender who is yet to undergo trial or to fully pass through the justice system to its full extent and be pronounced guilty of the crime for which he is standing trial yet presumed innocent, is to unnecessarily short-circuit the criminal process of trial anticipated by our laws. Hence a person whose trial is ongoing, a fortiori constitutionally presumed innocent cannot be granted pardon because an innocent person cannot be pardoned for any offence. There must be conviction before pardon can be granted, indeed pardon cannot even be granted to a person whose appeal against conviction is pending at the Supreme Court.-SOLOLA v STATE (2005) 2 NWLR (Pt. 93) 460 at 488 – 489, OKONGWU V STATE (1986) 5 NWLR (Pt. 44) 741 at 750 

A careful perusal of the above mentioned case shows that this power of prerogative can be granted only to those already convicted and not those awaiting trial. Therefore, the exercise of this power of prerogative of mercy by the president or Governor can be extended to the old people and sick ones in the correctional centres because they are more vulnerable to becoming severally ill with the Covid 19 virus.

In conclusion, the negative impact of Covid 19 on detainees can be remedied and prevented by the government through the judiciary by granting bail applications to applicants who are able to meet the bail conditions. The exercise of CJN and CJ of states can also help in curbing the spread of Covid 19 in our Nigerian Correctional Centres. The government has an overarching duty to protect our health and wellbeing. The measures taken by government must also focus on the most vulnerable, like the Internally Displaced Persons, those in Correctional centres etc, who are still citizens of Nigeria and entitled to enjoy their fundamental rights and by so doing, they are safeguarding the fundamental rights.

Chidera Nwokeke is a graduate of Law from Ebonyi State University, a student of Nigerian Law School, Lagos Campus. He is academically motivated and has passion for research in several areas of law. He is a member of Amnesty International. He has a keen interest in Public Interest Litigation and development, Dispute Resolution, Human Right. He can be reached at [email protected] or 08120945787.

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