The President of the Nigerian Bar Association (NBA), Mazi Afam Osigwe, SAN, has expressed deep concern over what he described as the growing trend of excessive and unrealistic bail conditions imposed by courts and law enforcement agencies across Nigeria, warning that such practices are undermining the very essence of bail and weakening the constitutional rights of accused persons.
In a strongly worded statement titled “Bail Conditions Should Not Undermine the Essence of Bail,” the NBA President said the increasing imposition of burdensome bail requirements by courts, the Nigeria Police Force, the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices and Other Related Offences Commission (ICPC), and other security agencies has become a serious threat to the administration of justice and the protection of fundamental human rights.
According to Osigwe, many Nigerians who have been granted bail remain in detention because the conditions attached to their release are practically impossible to fulfil. He noted that demands for sureties who must be senior civil servants on specific grade levels, coupled with requirements for landed properties worth hundreds of millions of naira, have effectively transformed bail from a mechanism designed to secure attendance at trial into an indirect means of pre-trial punishment.
The NBA President stressed that the constitutional principle of presumption of innocence is being eroded by a system that allows accused persons to remain incarcerated despite having been granted bail.
“In recent times, we have observed with growing concern a disturbing trend in the administration of criminal justice where bail conditions are becoming increasingly excessive, impractical and difficult to satisfy,” he said.
“Many individuals who have not been convicted of any offence and who remain constitutionally presumed innocent are unable to regain their freedom because the conditions attached to their bail are beyond their means. This development undermines personal liberty and defeats the fundamental purpose of bail.”
Osigwe emphasized that bail is a constitutional safeguard intended to strike a balance between protecting the liberty of an accused person and ensuring that the individual appears before the court whenever required.
He explained that bail was never designed to serve as a punishment or a disguised form of detention before a court determines guilt or innocence.
“The primary objective of bail is to secure attendance at trial while preserving the liberty of the accused person. It is not a tool for punishment, intimidation, or pre-trial incarceration through indirect means,” he stated.
The NBA President recalled that Nigerian courts have repeatedly affirmed the principle that bail conditions must be reasonable and capable of being fulfilled.
He cited the decision of the Supreme Court in Suleman & Another v. Commissioner of Police, Plateau State (2008), where the apex court held that the purpose of bail pending trial is to grant an accused person temporary freedom while ensuring that he or she remains available for court proceedings.
According to him, the Supreme Court made it clear that bail should not be used to create insurmountable barriers that effectively deny a person the benefit of release.
Osigwe noted that despite these clear judicial pronouncements, some courts and investigative agencies continue to impose conditions that bear little relationship to the realities faced by ordinary Nigerians.
He expressed particular concern over the widespread insistence on sureties who must be serving civil servants on Grade Levels 16 or 17, often accompanied by requirements that such individuals own valuable landed properties.
According to him, such conditions are not only unrealistic but also discriminatory and contrary to established legal principles.
The NBA President drew attention to the landmark decision of the Court of Appeal in Dasuki v. Director-General, State Security Service & Others (2019) LPELR-49182 (CA), where the appellate court condemned the practice of making senior civil servants a mandatory category of sureties.
The court, he noted, described the practice as inconsistent with modern legal standards and observed that it lacked any rational basis.
“The Court of Appeal strongly criticised the requirement that sureties must be senior public servants. The court pointed out that such conditions are unknown to civilised legal systems and are often incompatible with public service regulations,” Osigwe explained.
The court further observed that expecting a civil servant on Grade Level 16 to own property worth hundreds of millions of naira was not only unrealistic but could also raise questions regarding compliance with public service rules and anti-corruption standards.
The NBA President argued that restricting acceptable sureties to a particular class of citizens creates unnecessary obstacles and narrows the pool of individuals who may qualify to stand as guarantors for accused persons.
He questioned the rationale behind the assumption that civil servants are inherently more trustworthy than other responsible and law-abiding members of society.
“There is no empirical evidence or legal justification for the belief that senior civil servants make better sureties than other citizens. Such restrictions are arbitrary and place unjustifiable barriers in the way of persons seeking to exercise their constitutional rights,” he said.
Osigwe also referred to the provisions of the Administration of Criminal Justice Act (ACJA) 2015, particularly Section 165(1), which provides that while courts possess discretion in granting bail and determining bail conditions, such conditions must not be excessive.
He stressed that judicial discretion must always be exercised reasonably, judiciously, and in accordance with constitutional principles.
“Judicial discretion is not absolute. It must be guided by fairness, proportionality, and respect for constitutional rights. Bail conditions must be tailored solely towards securing the attendance of the accused person at trial,” he stated.
The NBA President warned that conditions which are impossible to meet amount, in practical terms, to a refusal of bail.
According to him, such practices contribute significantly to prison overcrowding and prolonged pre-trial detention, placing unnecessary pressure on correctional facilities across the country.
He noted that many detainees spend months or even years in custody while awaiting trial simply because they cannot meet unrealistic bail requirements.
“This situation contributes directly to congestion in correctional centres and undermines confidence in the justice system. A grant of bail should not be rendered meaningless by conditions that make release impossible,” he said.
Osigwe therefore called on judicial officers at all levels to remain faithful to the Constitution, the Administration of Criminal Justice Act, and established judicial precedents when determining bail applications.
He urged judges and magistrates to ensure that bail conditions remain fair, proportionate, practical, and attainable.
The NBA President further reminded courts that every accused person enjoys the constitutional presumption of innocence until proven guilty by a competent court of law.
He stressed that the administration of justice is best served when courts strike a careful balance between protecting society and safeguarding the rights of individuals who have not yet been convicted.
“As guardians of the rule of law, we must collectively ensure that the right to bail remains meaningful and effective. Bail must not become a privilege reserved for the wealthy, the politically connected, or those with extraordinary resources,” he stated.
Osigwe concluded by reiterating that the purpose of bail is not to punish accused persons but to secure their attendance at trial while preserving their liberty, dignity, and constitutional rights.
“Bail should remain what the law intended it to be—a mechanism for securing attendance at trial while protecting the freedom of persons who have not been convicted of any offence. Anything less undermines justice, weakens public confidence in the legal system, and erodes the constitutional values upon which our democracy is built,” he said.
