BY

BEN ABRAHAM, ESQ

Bail is the temporary release of an accused person awaiting trial in exchange for a security given for his appearance at a later date to attend his trial. The Black’s law Dictionary, 9^th Ed, defines bail as ‘a security such as cash or a bond; esp, security required by a court for the release of a prisoner who must appear in court at a future time.’

The right to bail pending trial is a statutory provision especially where minor offences are involved.  Section 163 of the Administration of criminal justice Act (ACJA) 2015 provides that in specific mentioned instances, bail shall be as of right. In other cases, the grant of bail based on set guidelines is a function of the discretion of the Judge.

In Lagos State, Section 115 of the Administration of Criminal Justice Law (ACJL) 2015 (as amended) has similar provisions on bail with the ACJA. In the practical administration of criminal justice, the magistrate courts have the highest number of criminal cases. By reason of its jurisdiction to try minor offences, most of the cases that are charged to court by the Police are at the Magistrate courts. This creates a heavy burden on these courts with the attendant expectation to do justice to all parties without favour or ill-will. It is estimated that about 75% of all criminal cases in Lagos State are handled at the magistrate courts. The implications for this high percentage are huge for the criminal justice system in a State which has a very large population and robust economic activities.

In the criminal trial procedure, the defendant at the magistrate court is almost always granted bail upon arraignment by the police. The conditions of the bail are set out by the court; in most cases it involves sureties who enter recognizance on bond for the defendant to be released and attend his trial on adjourned dates. The advantages of the bail system cannot be overemphasized. It gives the defendant who is constitutionally adjudged innocent until proven guilty some respite by permitting him to carry on with his life outside custody until the end of the trial. Furthermore, the system reprieves the prisons from congestion and undue pressure.

However, in practice in these courts, the essence of bail is totally lost by reason of how the system operates. In many Magistrate courts today in Lagos (and Nationwide), many sureties are facing trial in the process to forfeit the bail sum to the Government because the defendants that they stood for have breached the terms of their bail or jumped bail as commonly said. These forfeiture cases are oftentimes truncated and the nominal complainant goes home without being given the opportunity to witness the grinding wheels of justice through the trial of the defendant.

The reality is that carefully organized rackets are holding the lady of justice by the jugular in these courts. These rackets involve ‘professional sureties’ as they are known (persons who swear to affidavit of means and provide other documents to stand as sureties but who in reality have little or no visible means of income), police lay prosecutors, registrars of court and defence lawyers. This process sees money in hundreds of thousands exchange hands among these racketeers every other day. Once a defendant is arraigned and the order for bail is pronounced by the court, the lawyer defending the accused person swings to action (where there is no lawyer, the court Registrars work with relations of the accused person). Pronto, forms are filled, affidavits are deposed to and the prosecutor whose duty it is to verify the residence of the sureties appends his signature as having done so.

The file is passed to the Magistrate and he invites the sureties for a question and answer session in order to further verify the relationship between the defendant and the sureties as claimed. With experience gained from multiple sessions spanning many years, the surety answers all the questions, the bail is approved by the Magistrate and the defendant is released from prison custody.

With the characteristic slow pace of Justice, after a couple of adjournments, the defendant ceases to attend his trial. The police prosecutor quickly applies for the bail to be revoked and the surety arraigned to show cause (why the bail sum should not be forfeited). The Magistrate grants the order and the surety is brought to court to show cause. Being that the police prosecutor and the surety are in cahoots in the bail process, after some time the case will die a natural death; the Magistrate will strike it out. The result is that the nominal complainant is livid and frustrated. The hope of the common man for Justice is dashed on the rock mercilessly orchestrated by officers who ought to be in the forefront of the dispensation of Justice. With few exceptions where the Magistrate has a way of identifying these sureties and nipping their plan in the bud or where the surety is charged with perverting the course of Justice contrary to Section 97 of the Criminal Law of Lagos State 2011 or Section 126 of the Criminal Code and prosecuted to finality, the story is the same.

In a bid to reform the bail system, Lagos State, in the Administration of Criminal Justice law, made provision for bondspersons. According to the Black’s Law Dictionary 9^th Ed, a Bondsman is one who guarantees a bond; a surety.

In Section 138 of the ACJL 2015, the Chief Justice may by regulation, register and license persons to act as bondspersons.

S 138(1) states, ‘The Chief Judge, may by regulation, register and license individuals or corporate bodies or persons to act as Bondsperson within the Jurisdiction of the Court in which they are registered.’

The Section also provided for financial and other conditions for intending Bondspersons or Organizations to fulfill to the satisfaction of the Chief Judge before being licensed (Subsections 6 & 7)

Subsection 3 forbids any unregistered person from engaging in the business of bond services.

Subsection 4 states, ‘Any person who engages in bail bond services without registration under this law or otherwise violates the terms of his license shall be liable to a fine of Five Hundred Thousand Naira (N500,000.00) or 12 months imprisonment or both.’

On February 5^th 2019, the then Chief Judge of Lagos State, Hon. Justice Opeyemi Oke (Rtd) in a seminar titled “Actualizing the Law on the Bondsmen and Recovery of Recognizance in Lagos State” called on stakeholders to partner with the State to actualize the provision for bondsperson services in furtherance of the Criminal Justice system. She also launched the practice directions on the scheme. Prior to that day nothing had been done to give fillip to that provision.

And on 6^th April 2021, after series of pre-qualification and screening, the Chief Judge of Lagos State, Hon Justice Kazeem Alogba inaugurated the Bondsmen scheme with four law firms and two corporate Organizations to provide the bail bond services. Also on that occasion, according to Hon Justice Onyeabo who is the Chairman of the Bondsmen and Recovery of Recognizance Committee, for the pilot scheme only two high courts and two magistrate courts were selected for the Bondsmen services.

More than one year after the inauguration, the effect of the scheme is sadly not yet felt. One thing is sure, Lagos State with its high number of criminal cases needs something more robust and dynamic.

First, the Bondsmen scheme, laudable as it is, is not popular among even lawyers in the State. There is a strong need to engage key stakeholders in the criminal justice terrain to bring this scheme to the forefront. One way is to partner with the various Bar branches in Lagos State.

Second, for a system that churns out thousands of criminal cases on monthly basis, having only six Organizations and four courts in this phase is akin to a drop in a bucket. The pre-selection and screening process for Bond service licensing involves significant financial involvement. This criteria will certainly discourage and daunt prospective Organizations from applying. This is one key area for reforms. The Government should rejig the process and make the scheme more attractive in the overall interest of Justice.

Third, while the reform of the Bondsmen service is being awaited, it should not be business as usual in the other courts not covered by the scheme so far. It is recommended that bold initiatives be put in place to arrest this ugly slide of racketeering. Members of the bail racket should be regarded as participes criminis and made to face the law. Section 138(4) of the ACJL provides for adequate punishment for whoever engages in bond services without license. The professional sureties need to be arrested and charged accordingly while the others – police prosecutors and Court Registrars – should be charged with conspiracy/aiding and abetting of the main crime. To launch this, the Chief Judge should convoke a stakeholders’ meeting with participants from the Judiciary Staff, the Bar and the State Police legal hierarchy.

Fourth, a practice direction to give impetus to the short term reforms should be issued by the Chief Judge. In the directions, magistrates should be directed to report cases of bail-jumping by defendants and make inquiries so as to discover who participated in the process that led to the release of the defendant on bail. Upon such discoveries, charges based on Section 138(4) of the ACJL and Section 97 of the Criminal law of Lagos State should be pressed against the participants.

It is important to note that the possibilities for reforming the system are not exhaustive. Steps must be taken urgently to tame this beast that ferociously rampages across the State and indeed the Nation’s criminal justice landscape. As Hon Justice Onyeabo said at the inauguration of the Bondsmen scheme, other States of the Federation are waiting for Lagos State to implement the scheme before they adopt it. Being the center of excellence, urgent effort aimed at further reforming the bail system should commence protinam.

Delay will surely prove costly. Many citizens have already lost faith in the system. They carry on daily with a sense of being shortchanged by the system they believed in. True reforms will definitely win back many of these despondent.

Ben Abraham, Esq is the Founder, ZAREPHATH AID

inlimine@zarephathaid.org

www.zarephathaid.org