Jail Overcrowding: Judges Criticized for Setting Unfair Pre-Trial Release Terms

As concerns over Nigeria's rising prison population escalate, judges and prosecuting agencies have been pinpointed as contributing factors to the problem, with the imposition of excessive and unrealistic bail conditions undermining the presumption of innocence for accused persons and swelling the prisons with awaiting trial inmates.

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The total inmate population in Nigeria stood at 80,812 as of February 9, 2026, with 51,955 awaiting trial, 24,913 convicted, and 3,850 held under other categories, according to the Nigeria Correctional Service (NCoS).

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The Controller-General of the NCoS, Mr. Sylvester Nwakuche, disclosed these figures while presenting the Service's 2025 budget performance and 2026 budget estimates before the House of Representatives Committee on Reformatory Institutions in Abuja.

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Awaiting trial detainees constitute 64 per cent of the total custodial population nationwide, prompting stakeholders within judicial circles to emphasize that decongesting prisons must begin with the courts.

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In many cases, individuals charged with minor offences, such as misdemeanours, remain in custody because they cannot meet the unrealistic bail conditions set by judges, which can be as high as N1,000,000 for stealing a loaf of bread worth N1,000, with two sureties, one of whom must be a serving lawmaker and the other a member of the Federal Executive Council.

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The alleged use of bail conditions to keep defendants in detention recently came to the fore in the case of former Kaduna State Governor, Mallam Nasir El-Rufai, whose family raised concerns over the conditions stipulated for his release.

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El-Rufai, who faces trial for allegedly intercepting the phone communications of National Security Adviser, Nuhu Ribadu, was granted bail on several conditions, including the production of a federal civil servant of Grade Level 17 or above, who must provide evidence of at least three months' salary payments, authenticated by a letter from a bank manager within the court's jurisdiction.

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He was also requested to produce a letter of attestation from the Chairman of the Kaduna Traditional Council, conditions that El-Rufai's family promptly protested as excessively stringent, leading to the former governor remaining in detention despite the bail ruling.

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In 2016, a cousin to former President Goodluck Jonathan, Robert Azibola, and his wife, Stella, spent over a week in Kuje prison after being granted bail of N1 billion with two sureties in like sum, prompting the family to seek a variation of the harsh conditions, which they alleged had been influenced by the EFCC.

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On April 13, 2022, the Court of Appeal intervened by varying the bail conditions handed to civil rights activist and convener of the RevolutionNow protest, Omoyele Sowore, in 2019, with a unanimous three-man panel led by Justice Haruna Tsammani holding that the Federal High Court ruling restricting Sowore from travelling outside Abuja was excessive.

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The court held that, having surrendered his international passport to the trial court, Sowore was at liberty to enjoy freedom of movement as guaranteed under the 1999 Constitution, as amended.

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On June 28, 2020, stringent bail terms handed to former Pension Reform Task Team Chairman, Abdulrasheed Maina, were varied, with his N1 billion bail sum reduced to N500 million, and the condition requiring two serving senators as sureties reviewed to allow for just one serving senator who owns property worth N500 million in either Asokoro, Maitama, Wuse II, the Central Business District, or Katampe districts of Abuja.

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On April 25, 2017, the Federal High Court in Abuja released the now-convicted leader of the Indigenous People of Biafra (IPOB), Nnamdi Kanu, on bail after he had spent over two years in detention, with the court ordering him to produce a Jewish leader as one of three sureties, each depositing N100 million.

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Perturbed by the rising number of awaiting trial inmates, former Chief Justice of Nigeria (CJN) Justice Mahmud Mohammed, on March 1, 2015, urged judges and magistrates to stop imposing stringent bail conditions, describing it as regrettable that minor offenders were sometimes ordered to meet harsh and untenable bail terms.

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Justice Mohammed also cautioned judges to grant bail to suspects in cases where prosecuting agencies were not yet ready to proceed, but more than a decade later, the situation appears unchanged, with courts continuing to impose stiff conditions for bailable offences.

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Weighing in on the issue, the Nigerian Bar Association (NBA) on June 4 warned that bail conditions must not undermine the essence of bail, with the NBA saying it observed with growing concern a disturbing trend in criminal justice administration, where courts and law enforcement agencies impose bail conditions that are excessive, impractical, and difficult to satisfy.

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The NBA, in a statement signed by its President, Mazi Afam Osigwe, SAN, noted that the frequent insistence on sureties who are senior civil servants of specified grade levels, coupled with demands for landed properties of extraordinary value, has in many cases transformed bail from a mechanism for securing attendance at trial into a tool of pre-trial detention.

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The consequence, according to the NBA, is that many persons who are constitutionally presumed innocent and have ostensibly been granted bail remain incarcerated because the conditions attached to their release are beyond their reach, undermining the constitutional right to personal liberty, weakening the presumption of innocence, and defeating the very essence and purpose of bail within the criminal justice system.

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The NBA considers it necessary to reiterate that bail is a constitutional safeguard designed to secure the attendance of an accused person at trial while preserving his or her liberty pending the determination of guilt or innocence, and that it is neither a punishment nor a mechanism for imposing pre-trial incarceration by indirect means.

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The law, according to the NBA, is settled that bail conditions must be reasonable, practical, and capable of being fulfilled by the accused person, with the Supreme Court, in Suleman & Anor v. Commissioner of Police, Plateau State (2008), emphasizing that the object of bail pending trial is to grant pre-trial freedom to an accused person whose appearance in court can be secured through appropriate conditions.

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The NBA is particularly concerned by the increasing tendency to impose conditions that are disconnected from prevailing economic realities and are often impossible to satisfy, with conditions requiring sureties who are serving civil servants on specific salary grades, ownership of landed properties of extraordinary value, or other burdensome requirements effectively converting the grant of bail into a denial of bail.

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The NBA notes that the continued insistence in some cases on sureties who must be senior civil servants – often on Grade Levels 16 or 17 – and who must own properties worth hundreds of millions of naira, has been strongly criticized by the appellate courts, with the Court of Appeal, in Dasuki v. Director-General, State Security Service & Ors (2019) LPELR-49182 (CA), unequivocally condemning the practice of involving serving public officers as a mandatory category of sureties.

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The Court observed that such requirements are unknown to civilized legal systems and run contrary to public service regulations, and that expecting a public servant on Grade Level 16 to own property worth N100 million would not only be unrealistic but could also conflict with public service rules and anti-corruption objectives.

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The Administration of Criminal Justice Act, 2015, is equally clear on this issue, with Section 165(1) providing that while the grant and conditions of bail are within the discretion of the court, such conditions must not be excessive, and that judicial discretion, though wide, must always be exercised judiciously, reasonably, and in a manner consistent with constitutional guarantees.

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The NBA therefore restates that bail conditions must be tailored solely to ensure attendance at trial, and must never serve as instruments of punishment prior to conviction, with conditions that cannot be met amounting in substance to a refusal of bail and contributing directly to pre-trial detention and congestion in correctional facilities.

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The NBA is equally concerned by the restriction of acceptable sureties to a particular class of citizens – particularly senior civil servants – which lacks legal, empirical, or rational basis, and unduly narrows the pool of eligible sureties, creating artificial barriers to the enjoyment of a constitutional right.

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Accordingly, the NBA calls on courts at all levels to remain guided by the Constitution, the Administration of Criminal Justice Act, and established judicial authorities when considering bail applications, with bail conditions must be fair, reasonable, proportionate, and attainable.

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Courts, according to the NBA, must guard against imposing terms that render the grant of bail illusory or nugatory, and must remain mindful that every accused person enjoys the constitutional presumption of innocence until proven guilty by a competent court of law.

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The administration of justice, the NBA notes, is best served when the rights of accused persons are protected while ensuring their attendance at trial through reasonable and lawful conditions, and as guardians of the rule of law, the NBA must collectively ensure that the constitutional right to bail remains meaningful and effective.

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Bail, the NBA emphasizes, should not become a privilege reserved only for those with extraordinary means or connections, but must remain what the law intended – a mechanism for securing attendance at trial while preserving the liberty and dignity of persons who have not been convicted of any offence.

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While bail remains a privilege granted at the court's discretion, calls for a more judicious and principled exercise of that discretion continue to grow louder.