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El-Rufai and the Line between Prosecution and Persecution
Postscript by Waziri Adio
By Saturday this week, Mallam Nasir El-Rufai would have been in detention without conviction for 150 days. This untenable milestone would have been by Wednesday this week but for the three days in March when he was released, commendably, on compassionate grounds to attend the burial of his late mother. There is no universe in which keeping someone in detention for that long for alleged offences that are bailable can be right or defensible. Increasingly, this is looking more like persecution than prosecution, an unfortunate turn that equally puts our justice administration system on the stand.
El-Rufai, like anyone else, is not beyond reproach. He can be arrested and prosecuted for his conduct in office and for his utterances. The issue then is not that he is standing trial and is being prosecuted, simultaneously, in three courts in FCT and Kaduna State. The issue is that he should not be denied, either directly or indirectly, the protections of personal liberty and fair trial granted under the 1999 Constitution and other relevant laws. Holding him under different guises for almost 150 days before conviction, denying him adequate access to his family and physicians, and circumscribing his capacity to prepare for his defence are not exactly as envisaged by our laws.
The former governor of Kaduna State and former Minister of FCT has been charged for offences ranging from abuse of office, money laundering and corruption to security breach. He may or may not be guilty of these serious charges. But as grave as these alleged crimes are, they are bailable offences under our laws, which also stipulate that the conditions for bail must be reasonable. For now, it is difficult to ignore the conclusion that there is more to the El-Rufai trial based on the timeline of events since 16th February 2026 when he was first detained and how the courts have handled his bail applications.
Sections 35 and 36 of the 1999 Constitution of the Federal Republic of Nigeria guarantee the rights to personal liberty and fair trial to all citizens, high and low. Specifically, Section 36(5) stipulates that “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” This means that no one should be punished for an alleged crime until they are competently convicted. This principle on presumption of innocence, enshrined in our constitution, provides the foundation for the right to bail. This right is further reinforced in our laws, especially in the Criminal Procedure Act (CPA) and the superseding Administration of Criminal Justice Act (ACJA).
In Section 158, ACJA states thus: “When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a court, he shall, subject to the provisions of this part, be entitled to bail.” It is commonly believed that all offences that are not punishable by death are bailable. But interestingly, Sections 118 of CPA and Section 161 of ACJA even allow for someone standing trial for a capital offence to be granted bail by a judge of the high court under “exceptional circumstances.”
While Sections 162 to 164 of ACJA set out the different conditions for bail for different types of alleged crimes, Section 165 of the law states that terms for bail are discretionary but must be reasonable. The section, which allows for refundable deposits from the accused or their sureties, specifically stipulates thus: “The conditions for bail in any case shall be at the discretion of the court with due regard to the circumstances of the case and shall not be excessive.”
Even when the laws allow for reasonable discretion, it is important not to lose sight of the reasons for setting conditions for bail. These conditions are not intended to be punitive or to be unmeetable. They are meant to ensure that the accused person does not jump bail, will always be available for interrogation and trial and is not in a position to interfere with witnesses or evidence. So, in exercising their discretion in setting bail conditions, the judges are expected to look at the peculiarity of the case, the history and the status of the person standing trial, and the cause of justice. Yes, there is discretion, but this is not a blanket discretion, to be exercised in ways that amount to denying a right grant by the constitution and our laws.
It is equally important to bear in mind that granting bail does not terminate the case. This is why it is befuddling when some judges treat bail applications as if they are final decisions on the cases or as a test of strength or in ways that unflatteringly portray them as interested parties in the cases.
Two courts have granted bail to El-Rufai so far, and with stringent conditions that must be met separately. The Federal High Court in Abuja asked him to submit all his valid international passports. This is reasonable, if the accused is deemed a flight risk. The court required El-Rufai to post a bond of N100 million and to report at the DSS office by 10am on the last Friday of every month to sign a register. Both conditions may be considered reasonable. However, there is an additional requirement for a bond of N100 million by a surety who must be a federal civil servant not below Grade Level 17, who must reside in Maitama or Asokoro in Abuja and who must deposit the original C-of-O of a landed property located within the jurisdiction of the court, who must provide evidence of salary payments in the last three months authenticated by a bank manager and who must submit a verification letter from their immediate department and a tax clearance certificate for the last six months. The judge has turned down the request to vary these stringent conditions.
On its part, the Kaduna State High Court set the following condition for El-Rufai to perfect his bail: he must deposit all his travel documents with the court, report to ICPC headquarters every first Monday of the month and sign an undertaking not to interfere with prosecution witnesses or grant interviews about the case pending the conclusion of the trial. All these can be understood. But the court also asked for two sureties to post bonds of N200 million, with one of the sureties being a resident of Kaduna with a landed property worth N200 million with verified C-of-O and the second surety being an elder in Kaduna State, verified by the Kaduna State Council of Elders or Traditional Council.
Without any doubt, the two courts have placed what can be considered excessive burdens on the sureties and granted bails on conditions that are extremely difficult to meet. Why the insistence by one of the judges on a federal civil servant and the other on an attestation from traditional rulers? Why will any federal civil servant or a traditional ruler put themselves at risk to stand as surety to someone being prosecuted by the state for alleged crimes? Ordinarily someone who has served as a former head of a federal agency, a former minister and a former governor without prior history of jumping bail should be granted bail on self-recognition and other personal terms. To be sure, the courts have the discretion to impose additional terms, but those terms “shall not be excessive”, as state clearly by ACJA. It is difficult, in good conscience, not to see the bail terms for El-Rufai as not being excessive and to resist the temptation to think that there might be other things at play in this trial. Yielding to this temptation is not baseless, for it is simply inconceivable that El-Rufai would have been subjected to all this were he to remain within the ruling party whose members standing trial for some similar offences are treated differently.
There are those who think that El-Rufai deserves however he is treated because they are not enamoured of his person or his politics or because they claim he treated others the same way when he was in power. Some people even celebrate what is happening to him, and frame it as his comeuppance. But they miss an important point. It should be possible to thoroughly despise someone and still insist that they should be treated as stipulated and intended by our constitution and our laws and that due process be duly apply to them.
This is not just about taking the high ground of principles, but about strategic self-interest: if a person of such high status can be so treated, it could happen to any of us, including the present office holders (who will not be in office forever) and those setting bail terms. We are all better served as individuals and as a society when the constitutional guarantees for fair treatment and trial are non-negotiable and not dependent on whether we are universally loved or not. And when we continue to insist, whether we or our faves are affected or not, that unfairly throwing the weight of the state against an individual or insinuating politics into the dispensation of justice should not be normalised or acceptable.
