Reforming bail system through bondsmen

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The Lagos State Judiciary has held a stakeholders’ summit on ‘bondsman and recovery of recognisance’, reports ADEBISI ONANUGA.

Where are the bond persons?’ asked Chief Judge of Lagos State,  Justice Opeyemi Oke, as stakeholders gathered for a summit.

It was organised to discuss the operation of bondspersons, sureties and bonds companies as part of the efforts to enhance criminal justice administration in the state.

The event was the The stakeholders’ summit actualising the law on the bondsman and recovery of recognisance in Lagos  State.

At the event were judges, magistrates, experts in bonds posting and the civil society, among others.

The Practice Direction for Bondsmen and Bonds companies was inaugurated at the event.

The Administration of Criminal Justice Law (ACJL) of Lagos State 2011 makes provision for bondmen. Lagos State judiciary is pioneering the system.

What the law says

Section 138 of the ACJL 2011 authorises the licensing and registration of Bondspersons by the Chief Judge of the State.

Section 138 (1) of the Law provides: “The Chief Judge may by regulation, register and license individuals or corporate bodies or persons to act as Bondspersons within the jurisdiction of the Court in which they are registered.”

The law was followed with the setting up of a “Committee on Creation of Bondsmen and Recovery of Recognisance” set up on November 30, 2012. It was a matter of regret that to date, not one individual or corporate organisation has been registered for the scheme.

Justice Oke lamented the absence of licensed bondsmen to bail defendants. She wondered why no individual or corporate body has applied to be licensed bondsman and bonds company over eight years after the Bondsmen Regulation of 2011 came into force in line with Section 138 of the  ACJL 2011.

It was in line with her desire to see the scheme in operation that she also set up another committee last February 27 with a mandate to find ways to actualise the recommendations  of an earlier Committee on Creation of Bondsmen and Recovery of Recognisance set up November 30, 2012.

The 10-man committee was chaired by Justice Grace Onyeabo, with Justices Mojisola Dada, Hakeem Oshodi, Sybil Nwaka, Abidemi, Okikiolu-Ighile, Lateef  Lawal-Akapo,  Kudirat Jose, Sedoten Ogunsanya,  Adedayo Akintoye  and Idowu Alakija as members.

The Chief Registrar, Mrs. Taiwo Olatokun and Deputy Chief Registrar (Admin.) Lagos, Mrs. Adebisi Femi-Segun were Secretaries.

The Committee held its inaugural meeting last April 11 and deliberated extensively at its various meetings on its terms of reference.

In spite of the work done by the committee, no individual or corporate body registered to participate in the bail bonds scheme.

“I have been greatly concerned that in spite of the hard work and deliberations of the Committee, nobody has signified interest in registering as a Bondsman,” Justice Oke said.

She was, however, gladdened by the committee’s findings that “the major hindrance to the commencement of Bondsman scheme in Lagos State Judiciary is the lack of understanding of how it works and lack of publicity by stakeholders on the forfeiture of recognisance and registration of Bondsperson.

“Hence the Summit to create necessary awareness and bring to fore creative ways of actualising the law on bondsperson in the state”.

The Chief Judge, therefore, encouraged individuals and corporate bodies to partner the Judiciary on actualising the bondsman scheme in order to make bail more accessible to defendants standing trial in courts.

She urged them to make necessary applications to join the scheme, emphasising that it has been proven in other jurisdictions that the professional bail bondsman brings important benefits to the society in which it works.

She said the introduction of the bondmen was to make bail more accessible to anyone charged with a criminal offence and prevent touting by unlicensed persons and  defendants from absconding from trials.

In the meantime, Justice Oke disclosed that the Bondsperson scheme would be implemented with a pilot scheme that will operate for six months in four courts, that is, two high courts and two magistrates courts in Lagos and Ikeja Divisions

Justice Oke described the bondsmen scheme as very laudable, pointing out that it would assist defendants to obtain bail and ensure that such persons can be produced seamlessly as and when needed in court.

She expressed confidence that the bondsperson scheme will significantly reduce prison congestion and other problems associated with same, while also ensuring that recognisance can be recovered in full where persons on bail abscond.

How it works

On how it would work, Justice Oke explained that  Section 138 (8) of the ACJL confers on the bondsperson the power of arrest should a defendant attempt to abscond.

She said: ”Every bondsperson shall have the powers to arrest any defendant or suspect, who is absconding or who he believes is trying to evade or avoid appearances in court: if he cannot bring the person arrested within 12 hours of the arrest before a court, he shall hand the person arrested over to the Police which shall produce such person before the appropriate court.

“In the United States, bail bondsmen play an important role in maintaining social control over bailed defendants.

“The bondsman and the defendant form a contract in which the bail bondsman agrees, for a fee, to act as the defendant’s surety. In addition to paying the fee, the defendant agrees to appear in court for all scheduled appearances,” she said.

Making the system effective

In his lecture titled: A Practical approach to the Bondmen procedure in the Justice system in Lagos State, a bail bond expert, Dr Seyi Adetayo, noted that bondsmen practice has not only helped defendants to access bail, but also assisted low income group  to access justice.

Dr Adetayo said the introduction of the bondsmen would eliminate the activities of touts masquerading as professional bondsmen and other malpractices, adding that it would generate employment.

He described bail as the amount of money that acts as insurance between the court and the person in court or jail, otherwise, the defendant could escape from justice.

He said defendants, particularly in criminal matters, have the option to pay for their bail in cash, adding that many found it difficult to do this as bail is often set at a high amount.

He said this explained why most defendants are financially unable to post bail by themselves. He said this is why they seek help from a bail agent or bail bondsman, who will post a bail bond for them to forestall them from being in prison custody while trial lasted.

Adetayo  explained that there are two types of bail bond. According to him, the criminal bail bond is used in criminal cases and guarantees that a defendant appears for trial when called upon by the court.

The civil bail bond, on the other hand, is used in civil cases and guarantees the payment of a debt, plus interest and costs, assessed against the defendant.

According to him, the name given to a firm whose business it is to assume the responsibility and payment guarantee for the obligations of another person is ‘surety bonds company’.

Such a company, he said,  is licensed to post bail guarantee for a person brought before the court.

On the other hand, he described bondman or bonds agent as a professional agent for an insurance company who specialises in providing bail bonds for people charged with crimes and awaiting trial.

While the scheme might appear alien in Nigeria, Adetayo said the system of bondsman and surety bond company has been in practice in the United States for many years and some other developed countries.

Benefits of bonds system

Apart from checking the activities of ‘court touts’, Adetayo explained that  licensed bondsmen are not useful to the defendants, but  makes it possible for low income earners to access justice.

He stated further that in addition to its being an avenue for employment generation, it has the capacity for decongesting the prisons.

It ensures that a defendant does not abscond from trial, he said.

According to him, the scheme works perfectly in the US because its social security system has a data bank that enables the people to be captured and documented.

He said because of the country’s peculiarity, we must develop our own approach to fit our system.

The requirements

For the process to be practicable in the country, Adetayo said the scheme must begin with the process of registering and licensing both bond person and the surety bond companies, which must be incorporated in the country.

He also said the surety bond companies to be so licensed must be able to post an insurance guarantee of not less than N10million while the board members must have capacity to serve, but must exclude persons from the judiciary,  a serving member of the civil service, Ministry of Justice among others.

The bondperson, according to him, must not be less than 18 years, possess a minimum of Ordinary School Certificate Level (O/L), satisfy and pass bondsman licensing examination, must be a serving member of LEA, civil service or the judiciary and  has not been convicted of a minimum of felony among other criteria.

The license of such practitioner, both individual and corporate, must be renewable every two and three years respectively, he said.

For the scheme to be a success, Adetayo advised the judiciary to develop and approve bail schedule for the different levels of the court to work with in order to curb malpractices and ensure compliance with set rules.

He said an internal mechanism must also be put in place to check the process for compliance and ensure  that too much burden is not put on the person the law is meant to protect.

He advised on the need to appoint a registrar for bail postings to set up mechanism for ethics and conducts, and establish a three-way seemless filings and approvals among others.

Justice Kazeem Alogba also stressed the need for inter-agency cooperation with the judiciary to make the scheme work, advising the proposed surety bonds companies to latch on to insurance companies, which could assist them to take on higher risks.

He stressed the need for police involvement in the scheme in view of the fact that a court order would be required before a suspect could  be remanded in prison custody.

Aside from suggesting an effective biometric system to lessen the risks of those absconding, he advised magistrates to be wary of bail conditions they grant in their courts in order for defendants to meet them.

Justice Onyeabo described the bondsmen scheme as an innovation of Lagos State, which would assist the police to arrest defendants that have absconded and ensure effective criminal justice administration system.

Speaking on the workability of the scheme, a senior lecturer in Faculty of Law, University of Lagos (UNILAG), Akoka, Dr Akeem Bello, disclosed that statistics in the US have shown that defendants released on bond bail appear more in court for trial than others. He expressed confidence that the scheme would improve criminal justice administration in the state.

Bello suggested the creation of a unit in the judiciary to oversee its implementation and for the scheme to take off on a small scale at the initial stage.

To create awareness, Dr Bello said efforts should be made to introduce it among the branches of the Nigerian Bar Association (NBA), retired police officers, and businessmen among others.

Aside from organising training programmes for prospective bonds persons and surety bonds corporate bodies, he also suggested that they should be empowered to be able to obtain collateral security from such defendants, like uncles, to ensure that defendants always appear in court for trial.

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