IS APPLICATION FOR BAIL NECESSARY UNDER THE ADMINISTRATION OF CRIMINAL JUSTICE ACT (ACJA)?

AIM OF THE ACT

The Preliminary part of the of the Administration Criminal Justice Act provides thus:

“Section 1(1) The purpose of this Act is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant and the victim”.

THE BALANCING ACT

Clearly, an essential feature and objective of this landmark legislation is the thrust towards striking a balance between protecting society from crime and protecting the right of individuals at both ends of the crime stick.

It should be mentioned that the ACJA replaced the Criminal Procedure Code and the Criminal Procedure Act in the Northern and Southern parts of Nigeria respectively.

THE EXISTING PROBLEMS

The situation before the coming into effect of the ACJA has been described as “characterized with incessant adjournments, interlocutory applications and parties not showing up at trial. Other key concerns range from poor case management, delays in the adjudicatory process, corruption, flagrant disrespect for human rights, lack of gender mainstreaming, “holding charge” syndrome, little or no engagement with victims of crime, weak coordination and lack of inter agency cooperation amongst criminal justice institutions.”

PROBLEMS SOLVED?

 Has this cardinal legislation been able to address the lapses? I doubt. Both the Act and its implementation is beset with a myriad of challenges ranging from outrightly quixotic provisions – like Section 396(3) providing for day to day adjournment of criminal trials; when no effort has been made to increase the number of judges thereby reducing the workload nor has modern legal technology been deployed to hasten the process.  There is also the half hearted provisions aimed at improving the system of bail and of course decongestion of the custodial institutions; like Section 162 which provides that:

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:

  • Where there is reasonable ground to believe that the defendant will, where released on bail, commit another offence;
  • Attempt to evade his trial;
  • Attempt to influence, interfere with, intimidate witnesses, and or interfere in the investigation of the case;
  • Attempt to conceal or destroy evidence;
  • Prejudice the proper investigation of the offence; or
  • Undermine or jeopardize the objectives or the purpose or the functioning of the criminal justice administration, including the bail system.

Section 163 provides that:

“In any other circumstance other than those referred to in sections 161 and 162 of this Act, the defendant shall be entitled to bail, unless the court sees reasons to the contrary. (Section 161 is the section that provides that a person charged with an offence punishable with death shall only be admitted to bail by a judge of the High Court under exceptional circumstances.)”  

Section 164 of the Act importantly provides that:

“where a defendant is brought before a court on any process in respect of any matter not included within Sections 158 to 163 of this Act, the person may, at the discretion of the court, be released on his entering into recognisance, in the manner provided in this Act, for his appearance before the court or any other court at the time and place mentioned in the recognisance”.

HOW FAR SO FAR?

The aim of this piece is to draw urgent attention to the need for an appraisal of the performance of the courts so far with regards to employing the Act to decongest the correctional institutions.  As has been earlier highlighted, the Act has its own shortcomings. In my humble view, the wording of section 162 leaves much to be desired if what we see in every day practice is anything to go by.

“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….”

IMPORTANT QUESTIONS 

Why is it necessary to make a formal application for bail for an offence that is clearly bailable?

Why is it that the courts cannot, except where the prosecution is able to convince the court that the excepted circumstances exist, simply grant bail and pronounce the bail terms without any fuss?

Why do the high courts keep insisting that being a court of record, all applications- including applications for bail must be properly filed and not oral?

My humble observation is that this requirement for application for bail by the Act and the insistence of the courts on filed applications has been one of the greatest obstacles to achieving the balance of interests promised by the ACJA.

 A visit to any correctional institution will immediately inform that the congestion is still part of the biggest challenges. The number of defendants waiting to be granted bail or to fulfil bail conditions is simply staggering. There are instances of courts adjourning for hearing bail applications for weeks and then adjourning for ruling on the same bail application for another couple of other weeks!

TIME LIMIT FOR DEALING WITH BAIL APPLICATIONS

My suggestion is that there should be a time limit- certainly not exceeding three working days- for dealing with bail applications.  I know of a case where a prosecuting counsel who had been served with Defendant’s bail application went to court nine days after the said service only to request for time to respond. And the court obliged him!

EXISTING ADMINISTRATIVE BAIL

One of the most ridiculous things I have seen in practice is a law enforcement agency who had granted administrative bail to a suspect and which bail terms the defendant had consistently complied with, coming to court to oppose bail. Counsel in the employment of the Economic and Financial Crimes Commission often engage in this practice. That the courts seem not to see the absurdity of this situation is a matter of great wonder to me.   More often than not, this leads to unnecessary adjournments and delay in dealing with bail matters.  It is my submission that the existence of an administrative bail which conditions have not been breached, is prima facie evidence of the absence of the excepted circumstances.

DEFENDANT COMING TO COURT ON HIS OWN

It is common place to see a defendant who went to court from his house to answer to charges preferred against him, on his own and out of respect for the courts/law and order, finding himself remanded in prison custody and ending up spending over a month in detention either awaiting bail or awaiting fulfilling of bail terms.

TIME TO MEET BAIL CONDITIONS

I do not see why, in some special circumstances, a defendant cannot be given time and opportunity to fulfil his bail terms on entering into some bond or security in lieu of remand at a custodial institution.

CONTINUOUS EDUCATION

I suggest that while the scope of section 164 should be expanded to help in achieving the stated objectives of the Act, greater enlightenment of everyone involved in administration of justice is still needed if we must achieve the change of attitude needed to achieve tangible progress.

BONDPERSONS

Enlightenment will also raise consciousness of other innovations in the Act like the of practice of registering professional bond persons (S. 187) and remand proceedings as provided for in Sections 293 to 299 of the Act.  

 Section 8 (2) of the ACJA provides that a suspect shall not be arrested merely on a civil wrong or breach of contract. Despite this express prohibition of arrest on civil wrongs, the practice is still rife. Once again, the EFCC is outdoing the Nigerian police in this particular infraction.

DELTA AND OTHER VARIANTS OF COVID19

Closing word: With the 3rd phase of COVID 19 currently ravaging the world and the signals that delta and other strains of the virus may not be so kind to our continent, there is urgent need for all institutions involved in administration of justice to readjust appropriately to present day realities. There is need for conscious effort towards avoiding unnecessary detention of citizens. Exposing citizens to the danger of infection in overcrowded facilities even in situations when such could be avoided is the opposite of effective administration of justice.   

Anthony Ezenwoko

(Anthony Ezenwoko is currently the Chairman, Law Review Committee of Nigerian Bar Association, Port Harcourt branch)   

2 thoughts on “IS APPLICATION FOR BAIL NECESSARY UNDER THE ADMINISTRATION OF CRIMINAL JUSTICE ACT (ACJA)?

  1. Simply amazing! Legally crafted in a simple language, easy to comprehend. The bench should copy & reorient their practice in the discharge/administration of criminal justice in the country.

  2. I am in all fours with the concerns raised by this legal piece. Especially the aspect of administrative bail and time within which to meet bail conditions.

    More appealing for me is the simple yet ingenious suggestions, nay! Solutions proffered by this piece. It is only logical and in sink with reason that, non breach of an administrative bail is a prima facie ground for court bail. There by saving the court, counsel and litigants a lot of stress.

    Secondly, limiting the opportunity for bail to one form is not flexible enough to satisfy the intent of prison decongestion among other objectives, by the Act. This leads to avoidable detention of a defendant for not meeting a supposed bail term.

    The 1999 constitution, S.36(5), presumes a defendant innocent until the contrary is proven. Meaning, they should not be made to suffer before conviction under any guise. Therefore widening the windows of opportunity to secure bail, is to breathe life to the above section of the the constitution.

    Lastly, as a seasoned legal practitioner and the chairman of the Law Reform Committee of the NBA, I believe you have the voice, the platform and the ear of the stake holders to bring about the necessary changes.

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