In developed countries, it would be unspeakable for a sitting senator to stick his head into a criminal matter in this way. Whether through negligence or through careful and deliberate political calculation, a senator of the federal republic has stuck his nose in a criminal affair. It appears he is now poised to explore legal loopholes to avoid responsibility for his actions.
The case involving Nnamdi Kanu, the leader of the proscribed Indigenous People of Biafra (IPOB), has been a hot topic since it began after his long period of incarceration by the Department of State Services (DSS). No sooner had he been released on bail than he began breaking every condition attached to the bail. He eventually committed the final act of defiance by jumping bail. For now, no one seems to know Kanu’s whereabouts, including his ‘brave’ sureties who are now engaged in finger pointing.
Emmanuel El-Shalom Oka-Ben Madu, a Jewish high priest; Tochukwu Uchendu, an accountant; and most significantly, Enyinnaya Abaribe, a senator representing Abia South, all valiantly stood as sureties for Kanu on a bail bond of N100 million each. After this, he was granted bail on very stringent conditions. Despite Kanu’s immediate display of disdain for his bail conditions, the brave trio stood firmly behind their man as he repeatedly broke every condition and made inciting comments. His disregard for constituted authority knows no bounds. Although the senator has now revealed that he cautioned Kanu against his excessive behaviour, it appears that the allure of openly associating with a cause that attracts wide support in Abia State, was too much for the senator to contemplate backing out of.
The logic of becoming a surety for Kanu may not be difficult to decipher in Abaribe’s case, as it is no secret that he nurses the ambition to be governor of Abia State. The quest to score easy political capital in Abia may have now backfired on the ambitious senator. When his case came up last week, it was apparent that Kanu had, indeed, gone incommunicado as he was nowhere to be found. With this, the reality of possibly losing N100 million or imprisonment finally dawned on Abaribe. It, therefore, elicited a late reaction by the senator, through his lawyers, who applied for the senator to be discharged as a surety for Kanu.
In trying to make a case for the discharge of their client, the senator’s lawyers cited the military’s siege on Kanu’s home in September as extenuating circumstances, coupled with their belief that the military seized or fatally harmed Kanu during the said invasion. As it is wide knowledge now, the court did not bulge, and the axe still dangles over the senator’s head.
Beyond the histrionics of this case, it is evident that many people do not grasp the full import of standing surety for an accused person in a criminal case. People routinely stand surety for complete strangers in arranged transactions that involve receiving payment for putting their freedom and resources at risk. This form of touting is common in the courts in Nigeria, with court registrars and other court officials being sometimes complicit in the act.
The answer to Abaribe’s legal team’s boldness can be found in the Administration of Criminal Justice Act (ACJA) 2015. Section 177 (1) of the ACJA allows a surety to apply “at any time” to be discharged as a surety.
In this case, however, the senator’s ‘payment’, as it were, may be in the form of political capital that he is hoping to reap. But this act may eventually cost him more if Kanu does not turn up between now and November 20, the time the court has graciously granted the senator to produce him. Unlike Ayo Fayose, the Ekiti State governor, and Femi Fani-Kayode, who are courting friends in the South-East through their support for Nnamdi Kanu at no risk to their finances, the senator may now have to earn his keep.
It is unlikely though that the senator and others are in any serious danger of imprisonment. This is because that eventuality is offset by forfeiture of the bail bond of N100 million, which will suffice to discharge their responsibilities as sureties, if they can’t fulfil it. What many may not know, which has contributed to touting in the courts with regard to bail bonds, is the actual practice of the courts regarding sureties.
The law concerning bail generally envisages the actual deposit of the bail sums in court, as security for the appearance of the accused on the next adjourned date. In practice, however, this sum is not actually deposited, as the sureties have always rather satisfied the courts by depositing title documents to properties of the value of the bail sum as security. The problem here is that, the value of the property can be inflated, or the documents may not be authentic.
Little is known about the other two sureties, but one can safely assume that the senator is “good for the money”, so to say. There is another danger here, one that is far more significant to Nigerian law, and it is shown by the boldness of the senator’s lawyers in asking that he be discharged as a surety at this juncture. First, the accused has gone AWOL. Secondly, the claims that the military has seized Kanu, including the reports of many killed at his residence, are unsubstantiated. The Army has denied responsibility for his disappearance and the Presidency has echoed its stance, so there is little to hold this claim before the courts.
The answer to Abaribe’s legal team’s boldness can be found in the Administration of Criminal Justice Act (ACJA) 2015. Section 177 (1) of the ACJA allows a surety to apply “at any time” to be discharged as a surety. Sub-section (2) of that section further states that “on an application under sub-section (1)…the court shall issue a warrant for the arrest of the defendant on whose behalf the recognizance was executed and on his appearance, shall discharge the recognizance either wholly or so far as relates to the applicant…”. This provision justifies Abaribe’s lawyers’ application and more importantly, seems to absolve the surety of responsibility for the whereabouts of the principal – the accused person.
…one would think that to save time, and having had prior knowledge of the claims of Abaribe’s lawyers, the prosecution ought to have obtained an official document or statement on oath from the Chief of Army Staff and/or the Presidency reiterating their innocence in the disappearance of Kanu or knowledge of his whereabouts.
It seems, by this provision, that Abaribe’s application and a warrant of arrest for Kanu will suffice to hold off further action on the sureties until Kanu is found. Although his appearance concludes the discharge, there is no compelling provision that triggers forfeiture in the interim. Depending on the attitude of the court in this case, we may be on for what will become an indefinite stay of proceedings, as this defective drafting is likely to lead to another adjournment come November 20, if Kanu remains missing.
There is also the issue of a serving senator standing as a surety in a criminal case. Not many people have spoken out about this. The fact is, it is a potentially disruptive act on his senatorial duties. Assuming he cannot meet the bail bond, he would be liable to be committed to prison for six months. Therefore, committing to such risks is unfair to his constituents and the country as a whole, as these considerations should have been in mind before Abaribe jumped to Kanu’s aid. As always, personal gain seems to have been at the forefront of his decision, true to the tendencies of the ruling elite.
In developed countries, it would be unspeakable for a sitting senator to stick his head into a criminal matter in this way. Whether through negligence or through careful and deliberate political calculation, a senator of the federal republic has stuck his nose in a criminal affair. It appears he is now poised to explore legal loopholes to avoid responsibility for his actions. In the least, it will be only right for the senator to forfeit the N100 million bond for his lack of forethought and recklessness. In a country with a deficit of shame, however, it will not be surprising to see legal and political gymnastics carry the day again.
In the final analysis, one would think that to save time, and having had prior knowledge of the claims of Abaribe’s lawyers, the prosecution ought to have obtained an official document or statement on oath from the Chief of Army Staff and/or the Presidency reiterating their innocence in the disappearance of Kanu or knowledge of his whereabouts. The way this case is turning out, Nigerians are not looking forward to months and years of stalling in this matter. As it stands, only swift action by the courts is paramount to show seriousness in putting the IPOB matter to rest. For now, the Kanu episode remains a festering sore on the face of the nation.
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