Is Police Bail free in Nigeria?

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Police bail, officially known as 'pre-charge bail', is used when police have arrested a suspect but do not have enough evidence to charge them with a crime, if it is deemed necessary and proportionate, the police can release the suspect on 'pre-charge bail' whilst they continue their investigation[1]. Police bail is equally when the officer in charge of a police station releases a person who was arrested without a warrant or written permission by an official of law on any of the following grounds:

i. Investigation has commenced on the person’s case and this will take some time to be completed.

ii. The person cannot be taken to Court within 24 or 48 hours as the case may be.

iii. There is no sufficient evidence to believe that the person has committed the offence.

iv. The Court is more than 40 kilometers away and it will take some time to file the charge in the Court.

v. If the offence is not one punishable by death [2].

Section 35 Subsections 4, 5 and 6 of the 1999 Constitution of Federal Republic of Nigeria (as amended) impliedly provides for police bail as part of the fundamental rights of Nigerians. Similar but express provisions can be found in Sections 30, 31 and 32 of the Administration of Criminal Justice Act 2015 and Sections 62, 63 and 64 of the Police Act 2020. While granting bail comes as a constitutional duty that shall be duly carried out by the Police, it also appears as a power of the police. The police are constitutionally bound not to detain a suspect beyond twenty-four hours where there is a court of competent jurisdiction within forty kilometres of radius or a period of two days or a longer period in circumstances which the court would consider reasonable [3]. The constitution seemingly allows for a reasonable extension for there are geographical locations in Nigeria where, it would be difficult to arraign a suspect before a court in two days or even more.

In furtherance, Section 35(4) provides for the conditional [4] or unconditional release of an arrested or detained person who is not tried within a period of 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 and for the person who has been released on bail, it shall be a period of three months from the date of his arrest or detention.

There is a subsisting confusion whether police bail is free or not. Police stations are stuffed with inscriptions showcasing that bail is free and not to be paid for and even issuing warning to members of the public not to pay for bail, this is far from reality. It is a common knowledge that it is close to impossible to be apprehended and get police bail without payment.

The Constitution providing for the release of an arrested or detained person does not accompany it with any payment clause, in fact, it only deemed it as a constitutional right of the suspect. Regulation 354 of the Nigeria Police Regulations prohibits police officers from receiving presents or gifts in the course of their duties. Except for the case of cash deposits, no payments of any sort are required to obtain bail [5].

There is no fee requirement or payment of any amount for the application of bail except for the case of cash deposits. Sureties are not even expected to pay any amount, like the suspect, they are to sign a bail bond. A bail bond is executed by a defendant who has been arrested, together with other persons as sureties, naming the sheriff, constable, or marshal as obligee, in a penal sum proportioned to the damages claimed or penalty denounced, conditioned that the defendant shall duly appear to answer to the legal process in the officer's hands, or shall cause special bail to be put in, as the case may be [6].

[1] Jennifer Brown. Why is police bail being reviewed again? Retrieved 5th February, 2021 from https://commonslibrary.parliament.uk/why-is-police-bail-being-reviewed-again/#:~:text=What%20is%20police%20bail%3F,whilst%20they%20continue%20their%20investigation. [2] Comppart Foundation. What you need to know about bail. Retrieved 5th February, 2021 from https://comppartfoundation.org/?p=119 [3]Section 35(5) of the 1999 Constitution [4] Such conditions shall be reasonably necessary to ensure that the suspect appears for trial at a later date. [5] United Nations Office on Drugs and Crime. Arrest, Detention and Bail. Court User Guide Number 1. Retrieved 5th February, 2021 from https://www.unodc.org/documents/nigeria/publications/courtusersguides/Arrest_Detention_Bail_Pamphlet.pdf [6] Black’s Law Dictionary, 7th Edition

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