There has been dense discussions on the trial and especially, the bail conditions of the leader of the Indigenous People of Biafra – Nnamdi Kanu – recently at the Federal High Court sitting in Abuja. It’s quite unruly for lawyers or specialists in law, especially specialists in criminal law to conclude that the Federal High Court’s ruling and bail conditions are too severe. At most, the bail conditions is a confluence of acceptable conditions and some which are unacceptable – because they touch on constitutional provisions in Chapter 4 of the Nigerian Constitution. 

The bail conditions as deductible from the court’s ruling are that: 

1. Mr. Kanu must not hold rallies.

2. He must not grant interviews.

3. He must not be in a crowd of more than 10 people.

4. He must provide three sureties in the sum of N100 million each.

5. One of the sureties must be a senior highly placed person of Igbo extraction, such as a senator. 

6. The second surety must be a highly respected Jewish leader

7. The third surety must be a highly respected person who owns landed property and is resident in Abuja FCT.

8. He must not leave Nigeria till his trial commencement on July 11 and 12, 2017 as he must deposit his Nigerian and British passport with the court.

9. He must provide the court with reports on the progress of his health and treatment on a monthly basis.

The condition is a mixture of acceptable tenets and those unacceptable as mentioned above. The first 3 conditions are clearly unacceptable. They are not stringent, rather, they are illegal and unconstitutional. The accused is still a suspect under the fair hearing doctrine enshrined in section 36 of the constitution, thus, whereas some rights are taken away from convicts, the accused is yet to be a convict. So, it baffles me and I am sure it does baffle other legal minds why the court descended so low and violate clear constitutional provisions. A condition restricting the accused from granting interviews to no one and disallowing him from holding rallies contravenes section 39 on freedom of speech, and freedom of association in section 40. The condition that the said accused can only be in a crowd of no more than 10 people also offends the right to freedom of association. The court clearly erred in submitting these first 3 conditions. It is quite appalling. The consequence, and what the court is trying to say is that, in some situations, even when you’ve not been convicted of any offense, your freedom of speech and to association could be taken away. This type of ruling puts us few step backward in the legal development journey. This is because, since this ruling was made by the Federal High Court, it would become a precedent for lower courts in future hearings. It’s a bad precedent. 

However, aside from the first 3 conditions which are absurd, and clearly illegal and unconstitutional. Agitators and unwary legal minds must be cautious of the remaining conditions, as they are prudent. The fourth condition requires that the accused supply three sureties, in the sum of N100 Million each. Candidly, maybe the amount is excessive, but this requirement is conventional in criminal law practice – that a person seeking bail brings sureties, so, argument contesting this condition I believe should address the amount attached to it, not the condition itself. Even, as regards the amount, the amount does not seem totally outrageous, it might seem excessive, but the accused definitely has such sureties on deck. For example, the Governor of Ekiti State, and the former Minister of Aviation were at the ruling to show solidarity with the accused, they could stand as sureties for the accused. These people are worth more that USD100 Million. 

The qualifications of the sureties have been a subject of controversy as well, with many saying the requirement that the first surety be a senator is outrageous. Of course, from the understanding that we only have Senators of the Federal Republic of Nigeria and not Biafra, most Senators would be reluctant to be a part of what could ‘disintegrate’ Nigeria, as most Nigerians qualify Kanu’s efforts. However, this line of argument is not entirely flawless. What the court said was that the first surety should be a senior highly placed person of Igbo extraction, followed by “such as a Senator” – ‘such’ as used signifies an ‘example-given’ (e.g.). It thus means using the ejusdem generis rule of interpretation, an Obi, Ebube Dike, Ikemba, Uba zuo oke, Eze, or anyone considered ‘highly placed’ in Igbo tradition would suffice. In essence, the court does not require that the first Surety be a senator as most people are saying – that would be absurd going by the reason explained above. The court is aware of the unlucky circumstance requiring a senator strictly would imply. 

The qualification of the second surety that the accused present a Jewish leader also might seem as highly sophisticated, and too stern. However, a closer look into the nitty-gritty of the case and prior depositions of the accused shows that this condition is also reasonable. The accused had previously conferred with the court that he is NOT a Christian or Moslem, but that he practices Judaism. The question thus is not “can the court ask the accused to present a Jewish leader as surety as a bail condition?”, the question is “can the court require that the accused present a spiritual leader as a surety as a condition for bail?’. If we answer the latter question in the affirmative, which I believe is quite conventional in Nigeria – i.e. that courts often require that an accused seeking bail bring his spiritual leader as surety – then, asking the accused to bring a spiritual leader from his belief is only habitual, not arbitrary. Perhaps, if the accused had chosen from the two main religions – Islam or Christianity – when asked about his religion/faith in court, most likely, the court would have asked the accused to present a Pastor or an Imam cleric. The accused exercised his right to freedom of religion in section 38 of the constitution, and that is alright. He is, therefore, the author of his own predicament if finding a Jewish leader is difficult in the Nigerian setting. Still, it must be clear, that this condition is quite fair.

I believe the qualification of the third surety – owning a landed property in Abuja FCT – the jurisdiction of the trial court is not a cause of debate, as this is almost a norm in bail hearings in Nigeria. The same goes for restricting the movement of the accused pending trial. Thus seizing the passports of the accused is only standard, since the idea of bail is to allow the accused leave prison premises, but to come back on the set trial date. Allowing the accused hold on to his passport can put these considerations into extreme jeopardy. For example, the accused is also a British citizen, if he manages to travel to the UK during the bail subsistence, it might be difficult to extradite him back to Nigeria. 

Although the above scenario is doubtful, especially since the UK government is a partisan in this case. The Nnamdi Kanu’s case has been the only case where the British government has refused to help her citizen in extreme turmoil, despite the fact that the accused has been held in prison without a proper trial since 14th October 2015. The British government has refused to offer her help to the accused because according to the Parliament under the Secretary of State for Foreign and Commonwealth Affairs – James Duddridge in 2015 – the accused has not asked for the British government’s help. When do citizens have to ask the government for her help in obvious danger?, the British government has chosen to hide behind this effigy, whereas its mind state is to support Nigeria as a country – since Nigeria is her product, and naturally, no one wants what she created to get destroyed or become disintegrated. The Biafra agitation is thus inept to the British government, letting Nnamdi Kanu rot in prison is a sacrifice the British government is not scared of making. Thus efforts are being given to the Nigerian government to conquer Biafra subliminally, this is directly apparent also especially when one considers the British government role in the Nigerian Civil War when Biafra forcefully intended to break away from Nigeria. 

Lastly, the condition that the accused supply the court with updates on his health condition and treatment is only normal since according to the court, the accused is being considered and granted bail, mainly because of his health condition which is deteriorating. The court itself admits the Nigerian prison is bereft of such expertise, workmanship, and instruments needed in taking care of the accused. The grant of bail on this basis is laudable since only the living can stand trial. The requirement of care update is therefore also reasonable, the court wants to be sure that the accused is not utilizing the time given to him to take care of himself for other purposes such as the one that led to his arrest and arraignment. 

In conclusion, Biafra agitators and her legal minds should not consciously blind themselves to well-established principles in criminal law practice in Nigeria, especially when it comes to bail hearings, just because the concerned accused is their leader. Truthfully, some of the bail conditions are unreasonable, but the majority of them are also reasonable, only if one examine the rationale behind them closely. Also, although bail conditions might be fact-specific, thereby affirming the ‘subtle’ strange conditions of the accused’s bail; still, bail conditions that directly interfere with constitutional provisions cannot be substantiated in law. This explains why the first 3 bail conditions cannot stand, but the remaining definitely will stand, even on appeal.

Gbenga Odugbemi

4/25/2017.