The Judicial Facade: When The Grant Of Bail Becomes Its Own Denial

Uche Diala

right of reply

A Reply to “The Advocate” of 4 August 2026

Onikepo Braithwaite’s column on the alleged illegal interception of the National Security Adviser’s telephone, and the bail conditions imposed on Malam Nasir El-Rufai, reads as measured legal commentary. Read against the law she herself cites, however, the author tragically fails herself. Ms. Braithwaite acknowledges every principle that should have led her to a different conclusion – that the alleged wiretapping offence is bailable, that bail conditions must not be excessive, that conditions amounting in substance to a refusal of bail are unlawful – and then declines to apply those principles to the facts in front of her. That is the central defect of the piece, and it is a profoundly tragic one.

An Admission That Was Never Established

Ms. Braithwaite’s argument stands on a single premise: that Mallam El-Rufai, in an Arise TV interview, admitted to the offence of wiretapping Mr. Ribadu’s phone. She writes that the unlawful interception occurred “by Malam El Rufai’s own admission,” and later concludes that whether he tapped the line “himself or through others, the law describes such a person as a principal offender.” That is a considerable distance to travel from an unquoted television remark. Nothing in the column tells the reader what El-Rufai actually said. The relevant portion of the Arise News interview is available on YouTube:

At roughly the 11:30–11:46 mark, El-Rufai’s own words were that someone had tapped Ribadu’s phone and reported to him that the NSA had ordered his detention. That is a claim about being surveilled, not a confession of surveilling. A public commentator may opt to read this differently, and a court is entitled to test it, but a commentator cannot simply supply the missing admission by assertion, and then build a felony, a national security escalation, and a justification for onerous bail conditions on top of it.

This matters because Nigerian law does recognise extra-judicial confessions in Sections 28 and 29 of the Evidence Act 2011, but the recognition of that category does not resolve the harder question at issue here. Whether a particular statement is a confession is not a label a reader attaches by impression. It is a question of construction, settled by examining the words actually used, their context, and whether they admit the specific elements of the offence charged, before any question of voluntariness or admissibility even arises. An ambiguous statement does not become a confession because a commentator characterises it as one. The Evidence Act supplies the framework for testing a statement’s evidential status; it does not authorise editorial substitution for that process. Tellingly, when the prosecution itself sought to rely on the same video in the wiretapping trial, two of its witnesses were unable, on cross-examination, to sustain the “admission” facade, which is to say that the construction Ms. Braithwaite offers as settled fact could not survive the very evidential scrutiny the law requires of it. If the state’s own witnesses could not make that leap under oath, a newspaper column cannot make it by inference.

Two Bail Regimes, Not One

A second problem is one of accuracy rather than advocacy. Ms. Braithwaite’s column actually describes two separate and materially different bail regimes, and the distinction matters more than her conclusion allows. In the wiretapping matter before the Federal High Court, Abuja, brought on the DSS’s petition, bail was fixed at N100 million with a single surety who must, among other things: hold Grade Level 17 or above in the federal civil service; reside in Maitama or Asokoro; deposit the original Certificate of Occupancy of landed property; produce three months of salary evidence authenticated by a bank manager; swear an affidavit of means; obtain a verification letter from his own department; and produce a tax clearance certificate. El-Rufai himself must produce a surety in the Kaduna State Traditional Council; surrender his international passport; and report to the DSS on a monthly basis. Ms. Braithwaite calls this set of conditions “reasonable enough.”

In the separate corruption matter before the Federal High Court in Kaduna, bail was fixed at N200 million with two sureties in landed property, and here too one of them must be attested by the Kaduna State Traditional Council, a body Ms. Braithwaite herself concedes operates under a State Government “not favourably disposed” to the defendant. Here, to her credit, she does not defend the condition; she calls it difficult and asks half-heartedly, without resolving it, whether it ought to be varied.

Conflating these two regimes, as casual commentary tends to do, obscures rather than clarifies, but it also obscures the single most telling fact in the whole affair: the Traditional Council attestation is not confined to the Kaduna matter. It appears, in near-identical form, in the DSS case before the Federal High Court in Abuja as well. Two different courts, in two different jurisdictions, hearing two different cases, have independently arrived at the same unusual and narrowly defeating condition, one that happens to route the defendant’s liberty through an institution controlled by a state government hostile to him.

That is not the kind of coincidence bail jurisprudence normally produces. Either the condition reflects a genuine, ordinary practice this reply has failed to locate elsewhere in Nigerian bail orders, or its recurrence across two courts points to collusion between two judges taking common instructions, or, at the very least, joined in a common cause to deny liberty to the accused. Ms. Braithwaite’s column, remarkably, treats the condition as a feature of the Kaduna case alone and never asks why it resurfaces in Abuja. That omission is itself worth noting. The Kaduna condition is the more indefensible one precisely because Ms. Braithwaite’s own facts alluded to it: a bail term cannot depend on the discretion of an institution controlled by a government adverse to the accused, because that converts a judicial safeguard into a political veto. Its repetition in a second, unrelated case only sharpens the point. That is not a close question, and the column’s decision to leave it as one is its clearest failure of nerve.

The FCT Conditions Fail the Test Braithwaite Herself Sets

The wiretapping case conditions deserve no easier a pass. Ms. Braithwaite is right that Grade Level 17 is a legitimate civil-service rank, that a recognisance is not a cash deposit, and that a surety need not own property specifically in Maitama or Asokoro. Taken singly, each condition can be defended. But Section 165(1) of the Administration of Criminal Justice Act 2015, which Ms. Braithwaite herself cites, asks a cumulative question: are the conditions, taken together, excessive? In Uduesegbe v FRN (2014) LPELR-23191(CA), the Court of Appeal treated exactly this kind of stacking as decisive, reducing a bond that on paper was merely large into one that in substance the court found unworkable, and holding that trial courts must be liberal, not exacting, in non-capital matters.

Here, a surety must simultaneously satisfy a civil-service grade level held by a small fraction of federal officers, a residence requirement confined to two of Abuja’s most exclusive districts, a landed-property deposit, bank-attested salary evidence, a sworn affidavit of means, departmental verification, current tax clearance, and attestation by a traditional institution in another state entirely, for an offence under Section 12 of the Cybercrimes Act carrying a maximum sentence of of two years. It is the accumulation, not any single term, that narrows the pool of willing and qualified sureties toward vanishing point. That is precisely the “excessive” that Section 165(1) prohibits, and Ms. Braithwaite’s column never runs its own cited authority against its own recited facts.

A Statutory Correction

One further point needs correcting, because precision matters in a debate about statutory bail rights. Section 162 of the ACJA governs offences punishable by more than three years’ imprisonment; it is Section 163 that governs the residual class of non-capital offences, including this one, where the offence carries a maximum of two years. The distinction is not academic. Section 163 leaves bail to the court’s discretion “unless there is a reason to the contrary,” but that discretion still sits inside the wider constraint that whatever conditions are set must not be excessive. Getting the section right does not weaken the underlying point; if anything, it sharpens it, because a discretionary provision offers no independent justification for excessive and exceptional conditions in a comparatively minor offence.

The Traditional Council Problem Deserves a Conclusion, Not a Question

The most serious defect in the Kaduna conditions is one Ms. Braithwaite states and then declines to resolve. If a certifying authority is institutionally controlled by a government hostile to the accused, asking “should the conditions be varied?” is not really a question, it is an answer in itself. A bail term whose satisfaction depends on the goodwill of the defendant’s political adversary is not a neutral administrative hurdle; it is a mechanism for indefinite detention while the order on its face still reads as a grant of bail. Nigerian appellate courts have already been here: in the Sambo Dasuki litigation, the Court of Appeal struck down a requirement that a civil servant serves as surety, precisely because status-linked surety conditions function as a bar to bail rather than a facilitation of it. The same logic applies with more force to a certifying body controlled by an adverse state government.

National Security Is a Charge to Be Proved, Not a Tone to Be Borrowed

Ms. Braithwaite is entitled to note that intercepting an NSA’s line is graver than an ordinary interception, given the office involved. But the gravity of an office is not evidence of harm. The column moves from the identity of the alleged victim to language evoking the Official Secrets Act and national security exposure, without identifying what classified information, if any, was obtained, disclosed, or compromised.

The trick works only by collapsing five distinct questions into one. The identity and status of the alleged victim is one question; it tells us who was affected, nothing more. The seriousness of unauthorised interception as a category of conduct is a second, separate question, answered by the legislature when it fixed the penalty under Section 12 of the Cybercrimes Act at two years. Whether national security information was, in fact, compromised, whether anything classified was obtained, used, or disclosed, is a third question, and an entirely evidential one: it requires proof of a fact, not an inference by a columnist. The statutory elements of the offence actually charged are a fourth question, fixed by the charge sheet, not by how alarming the surrounding facts can be made to sound. And whether any of the preceding four questions bears on pre-trial liberty is a fifth and final question, governed not by rhetoric but by Section 165(1) of the ACJA and the constitutional presumption of innocence.

Ms. Braithwaite’s column answers the first question and treats it as though it answers all five. It does not. The Official Secrets Act carries penalties of up to fourteen years precisely because it targets proven compromise of classified material, an offence with its own elements, its own burden of proof, and, notably, one with which El-Rufai has not been charged. Borrowing its gravity for an uncharged offence, to justify conditions imposed under a different statute entirely, is not legal reasoning; it is atmosphere doing the work that evidence is supposed to do. The offence charged under the Cybercrimes Act is the interception itself; escalating the register without escalating the evidence lets a two-year offence borrow the moral weight of a fourteen-year one, and a defendant should not be tried, even in the court of public opinion, on the vocabulary attached to the charge rather than the charge itself.

What Bail Is For

Ms. Braithwaite is correct that a grant of bail is not a verdict of innocence, and no serious commentator disputes that. But the proposition runs both ways: the absence of a finding of innocence does not license conditions designed, in their cumulative effect, to make liberty theoretical and unattainable. The presumption of innocence is not suspended because a defendant gave a controversial television interview, and it does not narrow according to how politically inconvenient the defendant happens to be. The test of bail is not whether each condition can be justified in isolation by a sympathetic reading. It is whether, taken together, an accused person granted bail can actually walk out of custody, or whether the order has become, as the Court of Appeal has put it in comparable cases, a refusal of bail wearing the language of a grant.

That is the question Ms. Braithwaite’s column raises and then leaves hanging. It is also the question this reply insists must be answered, and answered by the ordinary standards of the ACJA and the Constitution, for El-Rufai, and for any citizen who might one day find the state’s patience, and the vocabulary of national security, arrayed against them.

A court that grants bail with one hand and, with the other, assembles conditions calibrated to deny it has not exercised discretion. It has disguised a refusal as a grant. That is the judicial facade this title names, and it is worth stating without euphemism: bail obtained on paper but foreclosed in practice is not bail at all. It is detention that has simply changed its address, from the defendant’s cell to the surety’s impossible paperwork. The rule of law is not measured by the elegance of the order granting liberty; it is measured by whether the person the order names can actually walk free. Until that test is met, the case for El-Rufai’s continued confinement remains, on the law as it stands, unproven, and so, on its own terms, does Ms. Braithwaite’s sponsored diatribe.

•Dr. Uche Diala is a public affairs commentator and Director General of the El-Rufai Support Group Association, and writes from Abuja.