Does bail mean acquittal? 

By Abba Kyari Mohammed

In the Nigerian legal system, terms such as bail, discharge, conviction, acquittal etc., have always confused the non-lawyers, leading them to take erroneous stands over some issues. Anytime there is a high-profile trial before our courts and bail is granted to the accused person, Nigerians will curse the entire justice system describing it as weak, ineffective and a system that rigs itself to favour the rich – all because the courts exercise powers vested in them in a constitutional way to preserve the rule of law. 

I, therefore, find it pertinent to clarify some of these terms so Nigerians will stop bashing the judiciary and can redirect their anger to the right quarters while recognising their rights in the event they come in contact with the justice system, which for all intent and purposes is there to dispense justice in the best possible way. 

Let’s start with Bail, which is what always sparks the uproar in Nigeria, especially on social media, where you expect people to have become conversant with this term yet have somehow been misconstrued to mean absolute discharge and even exculpation from the charges for which the person on bail is being tried. 

Bail simply means a temporary or conditional release of a person arrested, charged or convicted of a crime. It’s granted by the police pending the investigation of a matter before it, by the court when the case is pending determination, and by the court pending an appeal when a person must have been convicted (Which is rare and only under compelling circumstances).

When bail is granted, it doesn’t mean the person is exonerated of the charges; it only means that he is released on the condition that he attends his trial until the end. In the end, the court may find him guilty, then sentence him(punish) or not guilty, and discharge and acquit him(release and exonerate) of the charges. 

Why grant bail? 

Some may ask why grant bail to people who have done despicable things. Why not convict them outright since all the facts are as clear as crystal, such as having video evidence, a confession etc? There are so many whys on our minds; perhaps, this may explain. 

To start with, under Nigerian Law, there is the Presumption of Innocence under section 36(6) of the Constitution of the Federal Republic of Nigeria 1999 as amended. It means every person charged with a criminal offence shall be presumed innocent until proven guilty by a court. To prove a case before the court in Nigeria, there are procedures and requirements laid down by the law which must be complied with. It’s not enough for the media or anyone to believe the accused person is guilty or the amount of evidence people think there is. This means that the presumption of innocence can only be rebutted when a person is convicted for the offence charged by the court. 

Premised on the above, persons charged with an offence (since they are innocent) are entitled to the right to personal liberty generously guaranteed by section 35 of the Constitution and cannot be derogated except in the circumstances justified by the Constitution or other extant laws. This means bail is a constitutional right enjoyed by persons accused of committing crimes, just like all of us do.

The courts, therefore, grant bail not because they are paid off or have regard for the criminals because of their status or offices but because it’s their constitutional right which cannot be trampled upon unless it is legally justifiable. However, bail is only granted upon an application made to the Police or the Court by the accused or his surety(s). It means you must ask the court to release you and explain why it should release you. Some may wonder why many low-profile criminals rot in a dungeon while others are released even though the crimes differ in gravity. The simple explanation is that “They don’t ask”. 

Then discharge. It is similar to discharging a person from the hospital but not entirely the same. Suppose a man has cancer and he was taken to a hospital for treatment, but the family does not have enough money to proceed with the surgery prescribed by doctors; the man is discharged, perhaps, to be brought later when the money is realised or may not be brought depending on the circumstances.

To discharge an accused person by the court doesn’t mean the court finds him innocent, but it means the court is letting him go because there is not enough evidence on the part of the prosecution to ground his trial or the prosecution withdraws the case etc. In these circumstances, the person can be rearrested and brought to court when the prosecution gathers enough evidence, just like in the case of the cancer patient when the family raised enough funds.  

Acquittal means that the court has found the accused person innocent of all the charges preferred against him after carefully looking at the facts and evidence presented by the prosecution. In a criminal trial, the case is said to have been unsuccessful and failed because the prosecution is unable to prove his case beyond all reasonable doubts.  Once the accused is acquitted, the doctrine of autre fois acquits is activated under Section 36 (9) of the Constitution of the Federal Republic of Nigeria [as amended] 1999, which means the person cannot be arrested or tried again for the same offence. It is similar to removing the cancer in the patient. Once it is removed, he is free from it. 

The Take-home therefore are:

Bail is a temporary and conditional release of an accused person pending when his trial is concluded. The accused goes home and always comes to court during his trial. In the end, the court may jail him or set him free. 

Discharge is the release of the accused person by the court but not a declaration of innocence. The person can be rearrested and brought to court again. 

Acquittal is the complete and total exoneration of the accused from the charges after the conclusion of a trial and the evaluation of evidence. 

Abba Kyari Mohammed can be reached via abbakyari2013@yahoo.com.