On August 9, 2019, a High Court in Lagos granted former Chairman of the Independent National Electoral Commission, Prof. Maurice Iwu, bail in the amount of N1 billion and two sureties in like sum. Additional terms included are that the sureties, one whom must be a civil servant or a professor, must demonstrate a credit bank balance of at least N1 billion.
With all due respects and without any intentions of preemption, it is my considered view that crucial aspects of these bail terms are unreasonable, excessive, impossible and potentially unconstitutional. When terms of bail are unrealizable or impossible to meet, they amount to a flat refusal of bail – as a matter of law and fact. And as in erroneous refusals of bail, such terms cannot pass appellate or constitutional muster.
The right to bail is constitutionally guaranteed under Sections 35(1) and 36(5) of the Nigerian Constitution. The basic parameter as set out in subsidiary legislations and quantum Court decisions is that bail “shall be fixed with due regard to the circumstances of the case and shall not be “EXCESSIVE”. The operative word here is “excessive”, which is clearly present in Iwu’s case.
In particular, it is implausible that a civil servant or a professor will have a bank balance of N1 billion. Unless he inherited it or won the lottery (which is rare), how could such a person have earned such money? From his wages or from what really? It’s even conceivable that any such civil servant or professor who steps forward to post such a bank balance may himself be risking an investigation for avarice.
So, unless Iwu’s lawyers are hopeful of the impossible unexpectedly becoming possible, I expect them to go back to the same Court with an application for variation of the terms, with a view to making them realistic and therefore possible to meet. On a well-argued application, I wager the Court will see compelling reasons to downgrade the terms.
Anything less will amount to an impermissible interference with Iwu’s constitutional right to presumption of innocence.
Maurice Iwu: Impossible bail terms amount to refusal of bail, by Aloy Ejimakor
