By Zik Zulu Okafor
Across Nigeria, a difficult conversation is unfolding. It is within legal circles, among civil society groups and across ordinary homes. The conversation raises one crucial question. ‘At what point do bail conditions stop serving justice and begin to obstruct liberty?’
This debate has intensified following recent high-profile cases involving former Kaduna State governor, Nasir El-Rufai and business magnate, Tunde Ayeni. These questions arose over the nature and weight of bail conditions imposed.
At the centre of the debate is not whether courts have the authority to impose bail conditions. They do but it has to be reasonable and within the law itself.
The deeper question is whether conditions should be so stringent that they become practically impossible to satisfy.
Still critical is the issue of whether these bail conditions should inflict mental pain and indeed worsen the psychological torture of a detainee already emotionally shattered by detention, even when no court has pronounced the accused guilty?
These are difficult but necessary questions for every democratic society that truly believes in justice, fairness, and the presumption of innocence.
For many legal observers, these questions strike at the heart of one of democracy’s oldest legal principles. And that is the presumption of innocence.
THE El-Rufai CASE
Take the case of El-Rufai for instance. The Federal High Court in Abuja reportedly granted him bail in the sum of N100 million with one surety in like sum. Then the curious conditions followed. The surety must be a Federal Civil Servant not below Grade Level 17.
The surety must reside in the high-end Maitama or Asokoro districts of Abuja. He or she must deposit original Certificate of Occupancy of a landed property with the court registry. But the judge was not done yet. The surety must provide evidence of salary payments for at least three months and this must be authenticated by a bank manager. Still, the surety would be required to further submit his tax clearance, affidavit of means, passport photographs and departmental verification.
No question, these conditions are so burdensome, so punishing and emotionally exhausting that they appear designed not merely to secure a surety, but to discourage anyone from even stepping forward. Just seeing the conditions is enough for the most courageous of men to retreat in frustration, even if the detainee was his own mother.
But if you thought the bail conditions of El-Rufai, a former governor, was tough, then wait for that of Dr. Tunde Ayeni.
AYENI: WHEN EFCC (THE PROSECUTOR) BECOMES MORE LIBERAL THAN THE COURT
The unassuming and courteous businessman, Ayeni, was granted bail in the sum of N200 million by the High Court of the Federal Capital Territory sitting in Apo, Abuja, with two sureties in like sum.
At first glance, it appeared like liberty had spoken.
But it was after that pronouncement that the real test began; what could, at best, be called the sureties’ crucible.
The presiding judge, Justice Jude Onwuegbuzie proceeded to impose conditions that many would describe not just difficult, but almost insurmountable and impossible to fulfill.
The two sureties, apart from not just being federal civil servants not below Grade Level 16, were required to submit their national identity cards and letters of employment.
That alone raised questions in the mind of a discerning individual.
But the conditions did not stop there, it continued.
Though expected to be ordinary salary earners in public service, the same sureties were also required to own landed properties valued at N500 million each within the federal capital Territory.
Still, the demands did not stop here, it continued.
To make the matter more exacting and frustrating, one of the sureties was required to provide an undertaking backed by a bank guarantee of N15 billion.
A civil servant to provide a Bank guarantee in the sum of N15billion?
This is where the issue moved beyond the facts of one case and entered the territory of constitutionality. Because bail is a constitutional right of every Nigerian citizen anchored on the presumption of innocence.
This explains why these extraordinary conditions provoked intense conversations. These bail conditions were astonishing to everyone present in court on that faithful day. The show of anger could be visibly seen on the faces among legal practitioners and even observers in court.
The core issue then evidently shifted as to the disparity between the conditions of administrative bail earlier granted by the Economic and Financial Crimes Commission (EFCC) who are the prosecuting Agency and those subsequently imposed by the court, that is supposed and asumed to be the arbiter in the matter.
Here, the EFCC being the investigating and prosecuting agency is the institution that investigated the allegations, assessed the gravity, the attendant risks and eventually brought the matter before the court for adjudication. Despite being the agency directly responsible for prosecuting the case, the conditions the EFCC attached to the administrative bail it earlier granted the defendant did not carry the severity of conditions eventually imposed by the court.
The bail conditions proposed by the prosecution, the EFCC, differed significantly from those ultimately imposed by the court on two critical points.
While the EFCC requested that one of the sureties be a civil servant not below Grade Level 16 who must own a house in Abuja, it did not stipulate that the property must be valued at N500 million, as the court subsequently ordered.
More notably, the anti-graft agency did not seek the staggering N15 billion bank guarantee that later emerged as one of the court’s bail conditions.
This was considered incongruous by the legal minds in the court because it raises an important jurisprudential question. If the prosecuting authority itself did not consider such extraordinary, indeed punishing and impossible conditions necessary while the defendant remained in its custody, what considerations then spurred the court to unleash such impossible conditions for the bail when he is presumed innocent; conditions that are significantly more stringent than those contemplated by the prosecution?
And the issue again is not whether a court possesses the discretion to impose stricter conditions. It certainly does. The concern is whether the exercise of that discretion should result in conditions so impossible, so debilitating that the constitutional right to bail becomes largely impracticable and, in fact, illusory. Ayeni’s case, Lawyers say, represents a grim situation where discretion seemed exercised in a manner that effectively transforms the grant of bail into a procedural labyrinth from which liberty becomes almost impossible to obtain. For these Legal practitioners, the bail conditions are simply distressing and concerning moreso when there appears to be no reason why the judge should impose such stiffer conditions.
THE N15 BILLION BANK GUARANTEE QUESTION
Perhaps no single condition generated more disbelief among Lawyers than the requirement that one of the sureties provide an undertaking supported by a bank guarantee of N15 billion.
To the ordinary citizen, a bank guarantee may sound like a mere letter issued by a financial institution on behalf of it’s customer. It is not because it is in actual fact, much more than that.
A bank guarantee is a serious financial instrument backed by collateral, deposits, assets or established credit facilities. In commercial practice, it is regarded as being as good as cash because the bank effectively assumes financial responsibility for the amount involved.
This immediately raises a troubling question. How many serving civil servants in Nigeria possess the financial standing necessary to secure a N15 billion bank guarantee?
Indeed, some legal commentators have argued that even if the total salaries and emoluments of the Head of Service of the Federation were accumulated from the day of employment until retirement after thirty-five years of service and even without spending a kobo out of it, the amount would still fall significantly short of the threshold required to support a N15 billion Bank guarantee. If a condition requires a surety with financial capabilities far beyond what is reasonably attainable within the public service, critics argue that the issue ceases to be one of security and becomes one of impossibility.
Such an impregnable condition unfortunately leaves the detainee in judicial purgatory even when he is still presumed innocent.
This is not only a severe assault on the spirit of liberty but an unreasonable strain on the constitutional right to liberty.
Yes, justice must protect the process but in this particular instance, it thus appears that the judge may have descended into the arena of being a party to the matter as could be said that he may have overtly be taking the position of a prosecutor, however, justice must also guard against constructing walls so high that freedom becomes illusory.
For when liberty depends on conditions beyond ordinary human reach, bail risks ceasing to be a safeguard and begins to resemble detention by another name.
This is why these dialectics matter and should provoke intense dialogue with the judiciary and judicial scholars.
Not because the accused has been declared innocent but because he has not yet been declared guilty.
This conversation is all the more important because judicial discretion sits at the heart of the justice system and must not, for whatever reason, be politicized no matter who is involved. Balancing the rights of the accused against the need to ensure their appearance for trial and protect the integrity of the judicial process should be a paramount consideration and it must also provide an avenue for the accused person to defend himself.
SHOULD THE COURT REGISTRAR BE REPLACED BY THE PROSECUTOR?
Another unusual aspect of Justice Jude Onwuegbuzie’s ruling that instantly caused a stir and attracted legal scrutiny concerns the strange directive that the prosecution (EFCC) should verify compliance with the bail conditions before the defendant could be released. This, legally speaking, was confounding.
This is because traditionally, verification of bail conditions is undertaken through the administrative machinery of the court, particularly the registrar and officers acting under judicial supervision.
The reason is obvious. The prosecutor is not and cannot be a neutral participant in criminal proceedings. The prosecutor is an interested party whose duty is to present the case against the accused. And to have him or her convicted. That is the ultimate goal.
This explains why Lawyers in the court were practically staggered by the directive.
They wondered whether assigning responsibility for confirming compliance with bail conditions to the prosecution would not risk creating an appearance of conflict with the principle of institutional neutrality that should underpin the administration of justice.
No question, the likely perception that such aberrant arrangement would create is capable of undermining public confidence in the fairness of the process. In this instance, the concern of legal experts is that this unusual task assigned to the prosecutor further raises the wall against the attainment of liberty for the defendant as it makes the realisation of the bail objective more daunting.
WHEN THE COURT OF APPEAL REJECTED THE USE OF PUBLIC SERVANTS AS SURETIES IN CRIMINAL BAIL MATTERS: DASUKI v. DG, SSS & ORS (2019) LPELR-49182 (CA)
If you were in court on Monday, May 25, during the bail proceedings involving Dr. Tunde Ayeni, as this writer, who providence made to witness the proceedings owing to a mix-up in actual ruling date of another case, one thing would have struck you immediately. The atmosphere was sombre. The judge’s tone was stern, and the mood in the courtroom suggested that the verdict anticipated may not likely come with the expected relief it was expected to bring to the defendant. It felt almost like a premonition of hopelessness, dreadfully foreboding.
Then came the ruling.
And once again, public servants found themselves at the centre of the increasingly contentious theatre of bail conditions. This inevitably raises a pertinent question: Are judges of the High court unaware of the Court of Appeal’s pronouncement discouraging the use of serving civil servants as sureties in criminal matters?
In DASUKI v. DG, SSS & ORS (2019) LPELR-49182 (CA), Justice Adah, JCA, expressed grave concern over the growing practice of requiring senior public officers to stand surety for persons facing criminal prosecution. The learned Justice highlighted the contradiction inherent in demanding that a public servant on Grade Level 16 and above not only stand as surety but also possess properties of extraordinarily high value.
According to the Court, such requirements are inconsistent with the realities of public service and may inadvertently undermine the very anti-corruption objectives the state seeks to advance.
Acting ex debito justitiae, in the interest of justice, the Court consequently struck out the requirement that serving public officers on Grade Level 16 and above act as sureties.
In the words of Justice Adah, JCA:
“…. Involving civil servants or public officers in the Public Service of the Federation and the State in the bail of people accused of criminal offences has never been the practice in Nigeria or any part of the civilized world…. Expecting a Level 16 Servant to own property worth N100,000,000 would run counter to the Public Service Rules and, by extension, the fight against corruption. In this respect, I will act ex debito justitiae to ensure that the aspect of involving a serving Public Servant not below the status of Level 16 Officer in either the State or Public Service of the Federation or any of its agencies is removed, and I so order.”
The question critiques ask is whether our judges are aware of this ruling or are just treating it with mute indifference?
The importance of this decision lies not merely in the relief granted to the appellant but in the broader principle it established. Bail conditions, while necessarily stringent in appropriate cases, must remain realistic, lawful and attainable.
For this reason, detention before trial is meant to be an exception, not the norm.
The Pursuit of Speed at the Expense of Justice?
One of the most curious and in fact worrying aspects of the proceedings was Justice Onwuegbuzie’s theory of speed. He likened his court to a fast-moving vehicle and advised participants in the case to fasten their seat belts because of the speed at which the court intended to proceed. He expressly said in open court that he intended to engage in a dangerously fast speed!
And yes, judicial efficiency is undoubtedly desirable. But criminal proceedings also occupy a unique place within the justice system. Because they involve liberty, reputation, livelihood and, in some cases, life itself. Just about everything is at stake. Such matters therefore demand meticulous attention to details rather than an overriding emphasis on speed.
As the old legal maxim reminds us, justice hurried can sometimes become justice buried.
This concern became particularly pronounced when attempts by defence counsel to further address the issue of bail met stiff resistance from the judge on the ground that written submissions had already been filed and that further oral argument would constitute a waste of judicial time.
The same concern surfaced in the tensed discussions surrounding the proposed trial timetable. Given that the defendant had been in EFCC custody from April 23rd 2026 and subsequently remanded in Kuje Correctional Centre, defence lawyers argued that adequate time was necessary to consult comprehensively with their client and prepare a proper defence. Their contention was straight forward. And it is this: Efficiency is desirable, but not at the expense of fairness.
THE COURTROOM ATMOSPHERE AND THE PERCEPTION OF FAIRNESS
There was something particularly troubling in Justice Jude Onwuegbuzie’s court that day. Every soul present felt it.
The courtroom was cloaked in an atmosphere of quiet tension and apprehension during the proceedings.
A heavy silence hung over the room, as though everyone sensed that an unfavourable decision was imminent.
There was a palpable sense of foreboding in the air, punctuated only by hushed whispers and restrained movements.
Much of it stemmed from the Judge’s disposition; his stern demeanour, sharp tone, and remarks that some observers considered bordering on dismissive nature of his statements.
Every word seemed to echo with a severity that could only heighten the anxieties of the defendant and his lawyers as they awaited the court’s decision.
The concern here is not simply about judicial firmness. Every judge is entitled to maintain discipline and control of proceedings in his court. Rather, the concern relates to the perception created when counsel, particularly Senior Advocates and experienced defence Lawyers, appear to be repeatedly interrupted, shouted down, or prevented from fully canvassing arguments placed before the court.
A courtroom atmosphere that creates an impression that one side is struggling to obtain a fair hearing can undermine public confidence in the process.
The judiciary must therefore recognize that perception matters. Public confidence is not sustained merely by the correctness of judicial decisions but also by the transparency, fairness, and dignity with which those decisions are reached.
The stringent bail conditions imposed in recent high-profile matters, including those involving Nasir El-Rufai and Dr. Tunde Ayeni, have generated passionate public debate and in some quarters, growing disillusionment. Increasing numbers of citizens are openly questioning whether the judiciary remains sufficiently insulated from political pressures and external influence.
Whether those concerns are justified is ultimately beside the point. What matters is that the perception exists. And strongly too, for fairly justifiable reasons. Many Nigerians, today, have come to believe that both El-Rufai and Ayeni are victims of political expediency.
In Ayeni’s case, such concerns are amplified by the fact that the underlying dispute had reportedly been the subject of previous judicial intervention and an amicable resolution was reached.
The danger here is that once citizens begin to doubt the neutrality and independence of the courts, democracy enters dangerous territory.
This is why the judiciary must remain vigilant in protecting not only its authority but also its credibility. Judges must continue to resist every form of political pressure, overt or subtle and remain steadfast in their constitutional duty to dispense justice without fear or favour, affection or ill will.
At a time when public confidence in institutions is increasingly getting fragile, the courts must stand as an unassailable symbol of professionalism, integrity, courage, and impartiality. The law must remain the only influence in the courtroom. No litigant should leave a court believing that power, politics, wealth or connections have prevailed over justice.
