By Benjamin Efeobhokhan
In Nigerian legal parlance, one of the most frequently misunderstood expressions is the popular phrase, “bail is free.” As a matter of law, bail is indeed free, neither the police nor the courts are permitted to impose any monetary charge as a condition for its grant. In practice, however, the process of securing police or court bail is seldom free in any practical sense. Regardless of whether the allegation is minor or serious, suspects often incur various expenses, including legal fees, documentation costs, transportation, surety-related requirements, and, in some instances, unlawful financial demands by officials.
The grant of bail ordinarily implies that an accused person has regained liberty pending trial. In reality, many defendants remain behind bars long after bail has been granted because the conditions attached to their release are so burdensome that they become practically impossible to fulfil. The recent proceedings involving former Kaduna State Governor Nasir El-Rufai have once again drawn public attention to this uncomfortable reality.
Former Kaduna State Governor Nasir El-Rufai was arraigned before the Federal High Court in Abuja on 23 April 2026 on five amended counts, bordering on the alleged unlawful interception of communications involving the National Security Adviser, Nuhu Ribadu, arising from statements he allegedly made during his interview on February 13 2026 on Arise Television, to which he pleaded not guilty. On 18 May 2026, Justice Joyce Abdulmalik granted him bail in the sum of ₦100 million with one surety in a like sum, relying on the constitutional presumption of innocence under Section 36(5) of the 1999 Constitution. The reported bail conditions required a surety resident in Maitama or Asokoro, Abuja, who must own landed property in either area and deposit the original Certificate of Occupancy, be a federal civil servant not below Grade Level 17 with proof of at least three months’ salary verified by a bank, and submit supporting documents including an affidavit of means, a bail bond, a passport photograph, a departmental verification letter, and a tax clearance certificate. El-Rufai was also ordered to surrender his international passports and seek court permission before travelling abroad, provide an attestation from the Chairman or Chairperson of the Kaduna State Traditional Council, and report monthly to the DSS headquarters for the signing of an attendance register, with any breach liable to the revocation of bail. Subsequent reports suggested that these stringent requirements made compliance difficult, thereby prolonging his detention despite the grant of bail.
The El-Rufai case should not be reduced to politics or personality. Whether one supports or opposes him is ultimately irrelevant to the legal question before us. The more important issue is whether Nigerian courts are increasingly imposing bail conditions that effectively amount to a hidden jail sentence. Impossible or excessively onerous bail conditions can keep accused persons in detention despite a formal order granting them bail.
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees the right to personal liberty under Section 35 and presumes every person innocent until proven guilty under Section 36(5). These provisions are the constitutional foundation of the law of bail in Nigeria. Bail is one of the principal mechanisms through which these constitutional protections are preserved. Granting bail is not a declaration of innocence, nor is it a reward bestowed upon a defendant. Rather, it is a judicial device intended to ensure that an accused person attends trial while remaining free until guilt is established through due process.
This principle is reinforced by Section 165 of the Administration of Criminal Justice Act (ACJA) 2015, which provides that the amount of bail shall not be excessive. The underlying philosophy is simple: the purpose of bail is to secure attendance at trial, not to punish a person before conviction. Once a court imposes conditions that are impossible or extremely difficult to satisfy, the distinction between bail and detention begins to disappear.
Although bail was granted, El-Rufai reportedly remained in custody pending the fulfilment of the conditions attached to the order. Whether those conditions were justified is a matter for the court. Nevertheless, the situation presents an opportunity to examine a broader and more troubling phenomenon within Nigeria’s criminal justice system.
Consider what often accompanies a bail order in high-profile criminal cases, enormous financial bonds, multiple sureties with landed property in specific jurisdictions, senior civil servants of a particular grade level, traditional rulers, or individuals with extensive property documentation. Even a financially comfortable defendant may require weeks or months to perfect such conditions, and for an ordinary Nigerian these conditions may be completely unattainable.
A person who cannot satisfy bail conditions remains in custody because prison authorities are not concerned with the wording of the court order, they are concerned with whether the conditions have been perfected. As earlier stated, this results in a defendant spending months in detention despite technically having been granted bail.
That is why unattainable bail conditions function as a form of pre-trial punishment. A defendant who is eventually acquitted cannot recover the months or years already spent behind bars. Employment may be lost, businesses destroyed, families disrupted, and reputations permanently damaged. Although courts sometimes take periods of remand into account when imposing a sentence after conviction, such a practice should not be seen as a substitute for liberty. A person should ordinarily serve a custodial sentence only after conviction by a court of competent jurisdiction. The constitutional presumption of innocence is undermined when liberty is effectively withheld through conditions that cannot realistically be met.
Nigerian appellate courts have repeatedly emphasized that bail conditions must be reasonable and not oppressive. The principal concern here is judicial discretion. Judicial discretion is undoubtedly wide, but it must be exercised judicially and judiciously. The seriousness of an offence may justify stricter conditions, yet those conditions must still bear a rational relationship to the objective of securing the defendant’s attendance at trial. A condition that has little practical prospect of being fulfilled risks becoming punitive rather than preventive.
The concern becomes even greater when viewed beyond the El-Rufai case. High-profile defendants usually possess experienced lawyers, political influence, financial resources, and public attention. If such individuals encounter difficulty perfecting bail conditions, the plight of the ordinary defendant is far more severe. Across magistrates’ courts and high courts in Nigeria, countless accused persons remain in custody because they cannot provide the required sureties or meet financial terms that bear little relationship to their actual means.
The tragedy is that many of these defendants are charged with relatively minor offences. Some ultimately have their cases struck out. Others are acquitted after prolonged trials. Yet they have already served what amounts to a sentence before any finding of guilt has been made. In many cases, the hidden jail sentence is imposed not primarily on the powerful, but on the poor and forgotten.
Nigerian courts should assess the actual financial capacity of defendants before imposing monetary conditions, and surety requirements should be sufficiently flexible to accommodate responsible members of the community who may not own landed property. In granting bail, the overriding objective should be to preserve the constitutional balance between the liberty of the accused and the legitimate interests of justice.
This is not an argument that the charges against Mr. El-Rufai should be withdrawn or suspects should be pardoned. Rather, it is a call for strict adherence to constitutional principles. It is equally not a suggestion that the judiciary should embark on a no-bail spree. Bail is not a declaration of innocence, it is a recognition of the fundamental constitutional right that a person who has not been convicted should not be subjected to unnecessary detention.
Justice is not measured merely by whether bail is granted. It is measured by whether the conditions of bail genuinely preserve liberty while ensuring attendance at trial. When bail becomes unattainable, detention becomes judicially sanitized, and the presumption of innocence begins to resemble a legal fiction rather than a constitutional guarantee. A suspect who is granted bail on conditions that are practically impossible to satisfy remains in custody despite the court’s order. In substance, such bail becomes a sham, and that is the hidden jail sentence.
In this article