NHRC: Where is the Fair Hearing?

What kind of body indicts or recommends people for prosecution without fair hearing? This was one question many of those indicted for electoral of fences are asking the National Human Rights Commission. Davidson Iriekpen writes.

Former Governor of Edo State, Professor Oserheimen Osunbor, last week, reacted angrily to the report of the National Human Rights Commission (NHRC) to the Attorney General of the Federation (AGF) recommending him and 65 others for prosecution for electoral offences. He challenged the commission to state the electoral offence and violence he committed.

Osunbor was declared 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 2008. The court ordered that Adams Oshiomhole be sworn in as the rightful winner of that election.

However, like it did in 2014, the NHRC penultimate week, 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 was exercising 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 Executive Secretary of the commission, Professor Bem Angwe read in part: “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 deterrent, to uphold sanctity of the ballot and to ensure greater respect for democratic values amongst citizens.”

But Osunbor, a lawyer and professor, however 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.

In a statement he issued last week, Osunbor 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 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 former governor and two-time senator urged Nigerians to rise up against the commission in order to ensure that it does not become a behemoth that tramples on their rights with impunity. He equally noted that the commission acted recklessly or mischievously to tarnish his name and defame his character.

“If you read the judgment, my name was not mentioned that I committed any offence. There were people specifically mentioned in the judgment. Somebody is using them against me and I know the person. I have challenged them to tell me the offence I committed. They said they are depending on the court judgment. Was I the only person removed by the tribunal? They should tell the world what offence I committed,” the former governor insisted.

He said when the report was published in 2014, he wrote a letter dated April 22, 2014 and addressed “to the NHRC Executive Secretary, Angwe, requesting among others, to disclose to me the specific electoral offence or offences I 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 noted that the commission’s letter failed “to answer the question of what electoral offences I committed given the fact that neither the Election Petition Tribunal nor the Court of Appeal ever indicted me for any wrongdoing whatsoever, electoral offence inclusive.”

Dissatisfied with the response, the former governor said he commenced legal action against the Commission to quash the report, restrain them for further damaging his name and claiming damages.
According to him, the case “is still pending in court, a fact known to the executive secretary and the commission, yet they carry on wrongfully as if the commission is superior to and knows better than courts of law.”

He added that the commission never confronted him with any allegation of commission of an offence neither did they invite him for any interrogation to afford him the opportunity to defend himself as guaranteed under the 1999 Constitution.

He therefore reprimanded Angwe, who is also a professor of law for heading a human rights commission with many lawyers and wantonly trampling on the rights of other Nigerians without considering the damage they are inflicting on them.

“For the commission to come up more than two years later to again announce my indictment by them for the commission of electoral violence or any other offence is to say the least in contempt of court and a display of naked impunity. The judgments of the election petition tribunal and the Court of Appeal which nullified my election after cancelling votes scored by my party and some scored by the petitioners as well, did not indict me for any offence. The Court of Appeal judgment is reported in (2009) 4 NWLR (Pt 1132) 607.

“Throughout the judgment, nobody accused me or alleged that I committed any offence during the election and so the issue of my indictment by the tribunal did not even arise. For a body set up to protect the human rights of citizens to brazenly and maliciously engage in repeated violation of my rights is most unfortunate. My heart grieves for my country that our human rights commission headed by a professor of law and with many lawyers working with him should so wantonly trample on the rights of others without care about the damage they so inflict on the innocent,” he said

He further stated: “It is inconceivable that the NHRC is ignorant of this law. The commission must disclose the part of the judgments of the election petition tribunal and the Court of Appeal, where I was adjudged or said to have personally committed any offence, or authorised the commission of any offence. The NHRC must tell the world what offence or offences Osunbor committed to warrant its recommendation to the AGF for his prosecution.

“It would be a monumental tragedy for Nigeria if our human rights commission degenerates into and becomes a willing tool for the violation of the human rights of law-abiding citizens. We all owe it a duty to ensure that the NHRC does not become a Behemoth that tramples with impunity on the rights of citizens,” he said.

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

He cited the decision of the Court of Appeal in 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 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 dismissed the prayers.

“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…,”

Apart from Osunbor, who has totally rejected the recommendations of the NHRC, many of those equally affected as well as observers have 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 stated: (1) “An offence committed under this Act shall be trial 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 is interesting to note that there is nowhere in the Electoral Act that the power to prosecute anybody for electoral offences is outsourced to the NHRC. If INEC and the tribunals fail to do their duties properly, why should the NHRC think it could help when it knew that at the end of the day, it would be deemed as lacking the locus standi or described as busy body by the court?
For now, it is not clear if the Attorney-General of the Federation, Abubakar Malami will implement the recommendations of the NHRC, which many of those involved would begin to challenge in courts any moment from now.

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It is interesting to note that there is nowhere in the Electoral Act that the power to prosecute anybody for electoral offences is outsourced to the NHRC. If INEC and the tribunals fail to do their duties properly, why should the NHRC think it could help when it knew that at the end of the day, it would be deemed as lacking the locus standi or described as busy body by the court?