For Osunbor, It’s Victory at Last

The indictment of a former governor of Edo State, Prof. Oserheimen Osunbor by the National Human Rights Commission for alleged electoral offences was rightly set aside by a federal high court, reports Davidson Iriekpen

AFederal High Court in Abuja penultimate week quashed the indictment of a former governor of Edo State, Prof. Oserheimen Osunbor for electoral offences by the National Human Rights Commission (NHRC). Delivering judgment on the suit filed by the former governor against the commission, Justice Ijeoma Ojukwu held that the former governor was not given the opportunity to be heard and as a result, there was a gross violation of his fundamental right particularly his right to fair hearing as enshrined in the constitution. She held that the law was trite that when a tribunal or an administrative body was to conduct hearing they must ensure the parties involved were heard orally or in writing.

Osunbor was declared the winner of the Edo State governorship election in 2007 by the Independent National Electoral Commission (INEC) and consequently sworn in as governor before he was sacked from office by the Court of Appeal in Benin City in controversial circumstances in 2008. The court ordered that Adams Oshiomhole be sworn in as the winner of that election.

However, in 2014, the NHRC released a report under its ‘Electoral Accountability Project/End Electoral Impunity Project’ in which it indicted the professor of law and 65 others, including organisations and security personnel as having committed electoral crimes in 2007 and 2011 general election.

In making the recommendations, the commission said it exercised its power under Section 6 (1) of the NHRC Act 1995 as amended. The recommendations followed the council’s consideration of an independent review of evidence of gross violations of rights to participate in government.

In a covering letter to the recommendations to the AGF, the council said the purpose of recommending those who had committed criminal offences during elections was to address impunity. The letter which was signed by the then Executive Secretary of the commission, Prof. Bem Angwe, reads: “The main objective being to address impunity by ensuring that individuals and groups indicted for various electoral offences are brought to justice to serve as a deterrent, to uphold sanctity of the ballot and to ensure greater respect for democratic values among citizens.”

But Osunbor challenged the NHRC to disclose the part of the judgments of the Edo State Election Petitions Tribunal and the Court of Appeal where he was adjudged or said to have personally committed any offence. He also questioned the integrity of the commission and how it arrived at the recommendation without giving him the opportunity to defend himself. He wondered how the NHRC arrived at its conclusion, saying that it was a monumental tragedy on the part of the commission which deals with human rights to degenerate into a willing tool for the violation of the human rights of law-abiding citizens.

The two-time senator concluded that the commission acted recklessly or mischievously to tarnish his name and defame his character. He said when the report was published in 2014, he wrote a letter dated April 22, 2014 addressed “to the NHRC Executive Secretary, Angwe, requesting among others, to disclose to him the specific electoral offence or offences he committed.

“I did not imagine that it will be difficult for the commission to do this given the fact that electoral offences are well set out in the Electoral Act. In his reply, the executive secretary claimed that the commission based its recommendation on the judgment of the election petition tribunal that nullified my election as governor of Edo State,” he explained.

Osunbor argued that even if the commission assumed that it “indicted” him because his election as a governor was nullified by the election tribunal and the Court of Appeal due to the wrongdoing or criminal acts of others, it could not possibly be ignorant of the law on this matter.

He cited the decision of the Court of Appeal in the case of Falae vs Obasanjo to counter whatever indictment the Court of Appeal that nullified his election and which the NHRC relied on. He said it was inconceivable that a human rights commission was ignorant of the law.

In the case, Justice George Oguntade while delivering judgment in the petition filed by Chief Chief Olu Falae of the All Peoples Party (APP) urging the election tribunal to nullify the election of Chief Olusegun Obasanjo of the PDP on the grounds that he (Obasanjo) committed electoral offences, held that: “The law is that even if a political party engaged in criminal activities which would disqualify a candidate, it cannot affect the candidate unless it is shown that the candidate authorised or ratified the offending conduct. A candidate’s liability to have his election voided under the doctrine of election agency is distinct from and wider than liability under the criminal law…”

Consequently upon this, he proceeded to court to find out among others, whether by the combined provisions of Sections 5 and 6 of the NHRC Act, Cap N46, Laws of the Federation of Nigeria, 2004 (as amended), Section 214 of the 1999 Constitution (as amended) and Section 4 of the Police Act, Cap P19, Laws of the Federation of Nigeria, 2004, if the defendant has the power to investigate him for electoral offences as stipulated in Sections 124 to 139 of the Electoral Act, 2006, indict him for electoral crimes and forward his name to the Attorney General of the Federation for prosecution; Whether the commission in exercise of its powers under Sections 5 and 6 of the NHRC Act, Cap N46 Laws of the Federation of Nigeria, 2004 (as amended) and Section 1(1) and 1(3) of the Constitution (as amended) is not bound by the extant provisions of Section 36 of the 1999 Constitution and the rules of natural justice entrenched there; and whether the defendant is empowered by law to review the judgment of a competent court or tribunal and arrive at a different conclusion from that of the court or tribunal for the purpose of indicting the plaintiff for criminal prosecution?

Justice Ojukwu after listening to the parties, held tthat an administrative tribunal was bound to observe the rules of natural justice, adding that the principles constituted the bastion of fairness and were equally enshrined in Section 36 (1) of the 1999 Constitution. Citing previous decisions like Olabode Adewunmi vs Nigerian Eagle Flour Mill and Adedeji vs Police Service Commission, Justice Ojukwu held that the principles to hear the other side was very important and pervaded the system of adjudication in dispute in both primitive and civilised world.

She noted that where a tribunal was to conduct proceeding on documents, all the parties must be heard in writing and where there would be additional oral hearing, all parties affected must be given an opportunity of an oral hearing. The judge concluded that in the instant case, there was no evidence that the plaintiff was called upon or given an opportunity to be heard orally or in writing.

While, examining the defence of the NHRC that he merely reviewed and acted on the judgment of the Court of Appeal, Justice Ojukwu wondered if the commission had the powers to review the judgment of the Court of Appeal.

“I wonder if the defendant has powers to review the judgment of the tribunal, make findings, indict persons and make recommendation for their prosecution, it may be the use of the word ‘review’ but something here is rather strange. The Supreme Court as the final court of the land has no jurisdiction to entertain an application for a review of its judgment once it has been delivered, save under the slip rule,” she held.

On Section 5 (b) of its Act which the commission said it derived its powers from to indict Osunbor and others, the judge held: “Section 5 (b) of the Act provides that the defendant ‘shall’ monitor and ‘investigate’ al alleged cases of human rights violation. To ‘investigate’ means to inquire into (in matter) systematically; to make (a suspect) the subject of a criminal inquiry. To make an official inquiry. In other words, the defendant is expected to act in an organised manner, bound by the rule of law, and natural justice in carrying out their statutory functions.”

The court concluded that while it was not attempting to strip the NHRC of its powers under sections 5 and 6 of its Act, such powers must be exercised within the precinct of the law. It wondered what a rights commission established to deal with all matters relating to the promotion and protection of human rights and other international conventions on human rights would find a person guilty of an offence without hearing from him or her.

“This court is not by any means attempting to strip the defendant of their powers under sections 5 and 6 of the NHRC Act, (the court cannot do so). The court is merely but firmly stating that the exercise of such powers must be within the precinct of the law. It is a paradox that the NHRC, known and established to deal with all matters relating to the promotion and protection of human rights and other international conventions on human rights would be found wanting in this instance.”

Apart from Osunbor who rejected the indictment and recommendations of the NHRC, many of those equally affected and observers had also expressed reservations, wondering what manner of a rights commission would indict or recommend people for prosecution without at least hearing from them. They also wondered where the commission derived the powers to recommend people for prosecution. Section 149 of the Electoral Act 2010 and 2011 clearly put the power in the hands of INEC. For instance, the section states that INEC shall consider any recommendation made to it by a tribunal with respect to the prosecution by it on any person for the offence disclosed in any election petition. It states: “The commission (INEC) shall consider any recommendation made to it by a tribunal with respect to the prosecution by it on any person for the offence disclosed in any election petition.”

Section 50 (1 and 2) of the Act further states: (1) “An offence committed under this Act shall be tried in a magistrate court or a high court of the state in which the offence is committed, or the Federal Capital Territory (2) A prosecution under this Act shall be undertaken by legal officers of the commission (INEC) or any legal practitioner appointed by it.”

It would be interesting to note that there is nowhere in the Electoral Act where the power to prosecute anybody for electoral offences is outsourced to the NHRC.