Standing as Surety by a Kano Commissioner: Why Kano State Government Should not Sack the Commissioner
Recently, there has been a rancour and public discomfort over a commissioner in Kano state stood as surety to a “suspect” for grant of bail in court of law . This action made many Nigerians, including those in legal industry, dejected,unhappy and embittered and called for immediate suspension of the commissioner by the Kano state government.
It is true that, looking at matter from social microscope it will reveal that a public officer who supposed to be an ardent fighter against public immorality and law violation, should not be allowed ,by either a law ,rules of court or code of conducts to stand as a ‘surety’ to a person arraigned for violating a public law. This is based on moral standard and philosophy.
However, it is elementary knowledge for every person with minutest knowledge of our legal system that, morality and law are two identical but remotely varied concepts and one cannot live without the other.
Unlike in the Facebook or general Media courts where the existing principles is “guilty until proven innocent” , under the Nigerian legal system every person is presumed to be innocent until proven guilty; and this presumption is a constitutional rights guaranteed under the 1999 constitution. Section 36(5) of the 1999 constitution provides that:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”
Thus, based on our law, the arrested “Drug lord” is still innocence in the brightest eyes of law and the prosecution has the burden to prove his guiltiness beyond reasonable doubt. So long as he is presumed innocent by our law, such person is entitled to bail as his constitutional Rights under section 35 of the 1999 constitution and under sections158 of the Administration of Criminal Justice Act ,2015 and section 168 of the Kano State Administration Of Criminal Justice Law, 2019 provide:
” When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a court, he shall, subject to the provisions of this Part, BE ENTITLED TO BAIL (capitalized for emphasis). You can see the case of ATIKU V. STATE (2002) 4 NWLR (Pt. 757) 265 for more explication of the constitutional provision.
To understand this provision, it is pertinent to know the meaning of bail in law in contracts with the common perceptive meaning of the word by the public , which is either misleading or total misconstruction.
Meaning of Bail
Courts of law are the only interpreters of all our laws . Thus, in the case of OJO V. F.R.N.(2006) 9 NWLR (Pt. 984) 103 court defined Bail as the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a day and place certainly assigned, he also entering into self-recognizance.
succinctly put, a Bail means to set at liberty a person arrested or imprisoned on security being taken for his appearance on a day and place certain.(you can see the case of EKWENUGO V. F.R.N.(2001) 6 NWLR (Pt. 708) 171 )
Noteworthy is the fact that, in Nigeria every one is presumed innocent and the fact that police arrest one as a suspect does not erode the presumption. Hence, unless the office charged is capital office which requires stringent bail condition and in exceptional circumstances, bail should be granted to the person charged ,just like the purported “Drug lord” in Kano state.
However, before this bail would be granted there are statutory conditions that must be fulfilled by the suspect and one of which is “surety” provision.
The condition for surety can be seen under section 167 of Administration of Criminal Justice Act, 2015 and section 177 of Kano state Administration Of Criminal Justice Law 2019 which provide:
” A defendant admitted to bail may be required to produce such surety or sureties as, in the opinion of the court, will be sufficient to ensure his appearance as and when required”.
A Surety, roughly defined, as a person who undertakes legal responsibility to produce the suspect whenever the courts demands his appearance and to assure the court of his non-interference with court proceedings on bail and his presence wgen required by the court.However ,surety is not compulsory in some offences as the court may grant bail upon self-recognizance .
In the case of MUNIR V. F.R.N.(2009) 16 NWLR (Pt. 1168) 481 the court had this to say on the availability of pre-conviction Bail(Bail pending trial) and post-conviction Bail and it held that:
” It is much easier to obtain bail pending or during trial than after a conviction. This is so, because trial bail being a constitutional right, the burden is squarely on the prosecution who opposes bail to prove that the facts relied upon by the applicant do not warrant the granting of the application. This is because, there is a constitutional presumption in favour of the liberty and innocence of the individual. However, in the case of post conviction bail, the position is quite different. The burden, this time around, is on the applicant because the constitutional presumption of innocence is gone by virtue of the conviction. So also is the presumption in favour of liberty.”
Subsequently, the purpose of bail pending trial is to secure the release of a person charged with an offence by ensuring his future attendance in court and compelling him to remain within the jurisdiction of the court.You can read the case of ALAYA V. STATE (2007) 16 NWLR (Pt. 1061) 483 for more convincing proposition.
Therefore, the grant of Bail to the Kano state drug kingpin (suspect) is to ensure his availability during the courts sessions and it is line with the spirit of our laws since it is only a person who is detained is entitled to bail as declared in the case of DURUAKU VS NWOKE (2015) (2015) 15 NWLR (Pt. 1483) 417 .
Moreover, court has a discretionary power to attached Conditions to bail. For example, a suspect may be required to furnish a level 16 civil servant, Commissioner or a person who owns millions in his accounts as surety . This is sole discretion of the court . However, the condition of the bail must not be stringent, unreasonable and unbearable to extend that the suspect could be handicapped . Thus ,court made a cautionary remark in the case of IBORI V. F.R.N.(2009) 3 NWLR (Pt. 1127) 94 Where it held that:
” Conditions attached to grant of bail must not be suffocating, unbearable, unworkable an unduly burdensome” .
On Whether a Commissioner Can Stand as Surety
The law in Nigeria is clear that a capable person whether man or woman can stand as a surety to a suspect . Equally, the Nigerian law prohibits any form of discrimination in the application of the law. In fact, it is constitutionally entrenched and embedded that every person has right not to be discriminated( You can read section 42(1)(a)(b) of the 1999 constitution ).
From the legal viewpoint, what the Kano commissioner did is legal and lawful as same has been allowed by our laws in fulfilment of the suspect’s constitutional right And any displeasure raised by public is derived by moral conscience hence, can not be justified by legal rules.
Subsequently, if society must ridicule his act, it should begin by satirizing the court for setting such a suffocating benchmark as Bail condition. In fact, involving civil servant in state or federal service in Bail of people is a novel practice in Nigeria that erodes the justice system . (You can read the dictum of Adah JCA in the case of DASUKI V. D-G, SSS (2020) 7 NWLR (1731) 136 at 153, para 153, F-H.)
Why Kano State Government Should Not Sack the Commissioner
It is morally correct to expel a person (an employee) who proves to be unprincipled, immoral and incompetent in the discharge of his assigned duties . But it will be unjust, cruel and legally unjustifiable to sack an employee who commits no crime as a public officer.
As argued above, condition of Bail are set up by courts, and any person who is fit and capable can be a surety to a suspect . This is to ensure just prosecution and fair trial in court of law. The commissioner did no wrong in law by standing as surety to a suspect ,he did what seems to be within his legal right . The Right which is indiscriminately belongs to all Nigerians.
In addition to the above, it is important at this juncture to reiterate that, law and morality may be in conflict in a society but law always take precedence over any moral principles how ever widely recognized and accepted. Thus, the Kano state government should not sack it is commissioner for this sole unjustifiable reason for doing so, will limit and frighten others from exercising same right in court of law.
As a government of the people, moral principles is a guiding-post for ita decision but should not be the sole reason. And law,as the ultimate regulator of every legitimate government, should be the proponent yardstick of every Government action, decision,and judgement.
About Author
Akilu Saadu is a law student from the faculty of law Ahmadu Bello University Zaria . He can be reached via phone number 07046112021 or his email address: akilusaadu212@gmail.com
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