Can a woman post bail in Nigeria?By Bamas Victoria on January 7, 2021
One of the issues that comes up when discussing gender bias in Nigeria both online and offline is that “a woman cannot post bail in Nigeria.”
This statement is used to put forward that a woman cannot stand as surety or provide any security for a defendant or a suspect.
This was further crystalised in a Nigerian web TV series titled: Skinny Girl In Transit (SGIT) by Ndani TV. SGIT is poised as a show that highlights societal issues dealing with themes of domestic violence, adoption, inter-faith and culture relationship, among others.
In the pre-credit opening scene of Season 6 Episode 7 (S6E7), a police officer stated authoritatively that a woman cannot post bail.
As of January 6, 2021, the episode which was posted on March 27, 2020 has garnered over 640,000 views.
A woman cannot post bail in Nigeria.
Findings by the FactCheckHub show that the claim is false.
‘A woman cannot post bail’ is often listed among the litany of things women cannot do in Nigeria when having gender bias discussion.
The web TV series, SGIT, in a hard to miss position – the first 40 seconds – for S6E7, also reiterated this narrative that a woman cannot post bail in Nigeria.
Here is the dialogue that ensued in the first 40 seconds of the episode.
Woman: I don’t get it. Are you telling me that he is going to sleep here tonight?
Policeman: Madam, I never knew you are such a nice person. But you see, in the constitution of the Federal Republic of Nigeria (FRN), a woman does not post bail. So, you have to come back with a man tomorrow morning and that is how it is done.
This puts forward that a woman cannot enter any recognisance or stand as surety or provide any security for a defendant because the woman in question attempted to get her son released on bail from detention.
Abimbola Craig who is the lead actress and a producer of SGIT says the show tries to mirror society as well as shed light on societal ills.
Responding to a question around the show opening room for discussion on a lot of societal matters in Nigeria, she said “…Every time we come up with storylines, we try to make sure we come up with stories that are addressing everyone’s life”.
For instance, she pointed out that the show seeks to highlight the ignorance around dating married men. “[What] I really wanted people to take out was the married men situation. It has happened before, it will constantly keep happening. We need to stop being ignorant and letting girls think it’s okay.”
The FactCheckHub reached out to the Managing Partner of Spectrum Legal Services, Saidu Muhammad Lawal, Esq. He noted that the claim is false.
Lawal said “a woman can stand as a surety” in Nigeria.
He however clarified that “’to post bail’ means to pay a sum of money for bail”.
Lawal also stated that a woman can stand as surety for any accused person or defendant standing trial in Nigeria.
He said this is backed by section 42 of the 1999 constitution of the FRN.
Lawal stated that any judge or law that says a woman cannot stand as a surety would be contrary to section 42 of the Nigerian constitution and that law would be void to the extent of its inconsistency with the Constitution.
Another lawyer who is principally into litigation, Barr. John Okebe, concurred with Lawal adding that the practice of not allowing women to stand as surety does exist.
Okebe told the FactCheckHub that “It is not the law that says a woman cannot post bail in Nigeria. I must however admit that it is a fact in some parts of Nigeria that women are disallowed from guaranteeing bail.”
Okebe said culture and the stereotype that women are incapable of owning personal properties which is often a condition for guaranteeing bail are likely reasons why this might happen.
He, however, maintained that “The law itself, in this instance, the Constitution prohibits discrimination on the basis of sex as such wherever and whenever a woman is not allowed, such a woman can maintain action in fundamental rights from discrimination on the basis of sex.”
Nnenna Joy Eze, a partner at Ijenna LP, noted that the constitution is silent on who is eligible to post bail; as such the claim is false.
She said, “from the combined reading of Section 35(4) and Section 42 of the 1999 Constitution of the FRN as well as Section 30 of Administration of the Criminal Justice Act (ACJA), nothing stops a woman from posting bail.”
The sections reads:
“Section 35 (4) Any person who is arrested or detained in accordance with subsection (1) (c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of –
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
Section 30 ACJA reads; 1) Where a suspect has been taken into police custody without a warrant for an offence other than an offence punishable with death, an officer in charge of a police station shall inquire into the case and release the suspect arrested on bail subject to subsection (2) of this section, and where it will not be practicable to bring the suspect before a court having jurisdiction with respect to the offence alleged, within 24 hours after the arrest.
(2) The officer in charge of a police station shall release the suspect on bail on his entering into a recognisance with or without sureties for a reasonable amount of money to appear before the court or at the police station at the time and place named in the recognisance.
(3) Where a suspect is taken into custody and it appears to the police officer in charge of the station that the offence is of a capital nature, the arrested suspect shall be detained in custody, and the police officer may refer the matter to the Attorney- General of the Federation for legal advice and cause the suspect to be taken before a court having jurisdiction with respect to the offence within a reasonable time.
Now these two sections provide for bail and as you can see, nothing here suggests such, she noted.
Eze told the FactCheckHub that some argue that Section 122 of the Criminal Procedure Act creates such a provision:
“An accused admitted to bail may be required to produce such surety or sureties as, in the opinion of the court admitting him to bail, will be sufficient to ensure his appearance as and when required and shall with him or them enter into a recognisance accordingly.”
However, this, Eze stated, is struck off by Section 14 of the Interpretation Act which clearly states that “words importing the masculine gender include females.”
Furthermore, Eze stated that section 42 of Nigeria’s 1999 Constitution precludes any law in force in Nigeria from subjecting anyone to any form of disability or restriction on grounds, inter alia, of sex.
Eze also noted that the Administration of Criminal Justice (Repeal and Re-enactment) Law of Lagos State, 2011, which is the criminal procedural law in place within Lagos, has dispelled every doubt as to the eligibility of a woman to post bail by its provision in section 118 (3) of the law which states that “No person shall be denied or prevented or restricted from entering into any recognisance or standing as surety or providing any security on the ground that the person is a woman”.
She added that Section 167 (3) of the Administration of Criminal Justice Act 2015 that regulates criminal procedure in the FCT has a similar provision.
Furthermore, all states that have domesticated this law equally have similar provisions too, she explained.
The claim that a woman cannot post bail in Nigeria is FALSE.
This is because the constitution of the Federal Republic of Nigeria is silent on the gender of eligibility and it also does not allow for discrimination on the basis of sex.