Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that every person charged with a criminal offence “shall be presumed to be innocent until he is proved guilty.” This provision reflects Nigeria’s obligations under Article 14(2) of the International Covenant on Civil and Political Rights and Article 7(1)(b) of the African Charter on Human and Peoples’ Rights.

The presumption of innocence is a structural guarantee that conditions the entire criminal process: arrest, bail, remand, evidentiary rules, prosecutorial conduct, judicial case management, and public communication by state authorities.

The difficulty in Nigeria is not the absence of constitutional safeguards. Rather, it is the persistence of institutional practices that, cumulatively, undermines the presumption of innocence. Where liberty is routinely curtailed before adjudication, and detention precedes proof as a matter of systemic design rather than exceptional necessity, innocence becomes formally proclaimed but practically displaced.

The Presumption of Innocence as a Rule of Law Imperative

The presumption of innocence rests on two foundational commitments. The first is that the state may not treat a person as morally culpable before lawful conviction. The second is that coercive power must be justified by law, not suspicion.

The Supreme Court of Nigeria has consistently affirmed that the burden of proof lies squarely on the prosecution and never shifts to the accused in criminal trials. In Woolmington v DPP (as adopted in Nigerian jurisprudence), the “golden thread” principle has been repeatedly affirmed. In Okoro v State and Bakare v State, the Court reiterated that conviction must rest on proof beyond reasonable doubt.

Yet the presumption is not merely evidentiary. The Supreme Court in Enwere v COP and subsequent jurisprudence on the theory and practice of bail, recognised that pre-trial liberty is the norm and detention the exception.

Thus, when pre-trial detention becomes systemic rather than exceptional, the presumption ceases to function as a meaningful constitutional safeguard.

Pre-Trial Detention and the Structural Inversion of Innocence

Nigeria’s correctional statistics reveal that a substantial proportion of inmates remain awaiting trial. Earlier data similarly documented that approximately 70% of inmates were awaiting trial.

The African context reflects comparable patterns of excessive pre-trial detention. These figures are not merely administrative anomalies; they signal a systemic reliance on remand as a default procedural response.

The Administration of Criminal Justice Act (ACJA) 2015

The ACJA was enacted to address this distortion precisely. Its key safeguards include:

• Time limits for remand proceedings

• Prohibition of holding charges in superior courts

• Mandatory recording of confessional statements

• Section 396 requirement for day-to-day trial

• Judicial oversight of remand detention

Yet implementation gaps persist, where, for example:

• Magistrate courts frequently extend remand orders mechanically

• Case progression remains vulnerable to adjournment culture

• Prosecutorial preparedness is inconsistent

The result is functional preventive detention under the guise of procedural compliance. Pre-trial detention, in effect, becomes punishment without conviction.

Bail, Economic Exclusion, and the Criminalization of Poverty

The Supreme Court has emphasised that bail conditions must not be excessive. However, monetary bail requirements often exceed the financial capacity of indigent defendants.

Comparative scholarship has conceptualised this dynamic as “poverty penalties,” whereby inability to pay results in additional or prolonged deprivation of liberty. In Nigeria, this manifests through:

• Bail conditions tied to property ownership

• Surety requirements incompatible with informal economic realities

• Conversion of unpaid fines into custodial sentences

• Delays caused by the inability to perfect bail documentation

When liberty hinges on wealth rather than risk assessment, accessibility to the presumption of innocence becomes stratified and therefore ineffective.

Reclaiming Constitutional Fidelity

The presumption of innocence is not vindicated by acquittal alone. It is vindicated by the discipline of procedure. A constitutional system faithful to Section 36(5) must ensure that coercive power is exercised with restraint at every stage of the criminal process.

It requires:

• Arrest only where strictly necessary and supported by lawful grounds;

• Detention only where demonstrably justified by risk, not administrative convenience;

• Trial within a reasonable time, enforced through active judicial case management;

• Bail conditions proportionate to the accused’s actual financial capacity;

• Executive and law enforcement restraint in public communication, avoiding representations that imply guilt prior to conviction.

Recent justice-sector engagements have increasingly emphasised the imperative of a people-centred and dignity-oriented justice system. In parallel, international human rights mechanisms have called for an end to detention practices linked to poverty and the inability to pay fines.

The convergence of domestic reform discourse and international human rights standards underscores a central truth: the presumption of innocence cannot coexist with systemic custodial excess. Where detention precedes proof as a matter of routine, constitutional fidelity is compromised.

To reclaim that fidelity is to restore restraint as the governing principle of criminal justice power.

Conclusion

The presumption of innocence is the constitutional grammar of criminal justice. Where detention precedes proof as a systemic routine, that grammar collapses. Nigeria does not lack a constitutional text. It lacks structural alignment between constitutional promise and institutional practice.

Absent recalibration of bail, remand, prosecutorial discipline, judicial case management, and executive conduct, the presumption remains declaratory rather than operational. To give life to the presumption of innocence is to restrain state power until guilt is lawfully established.