Onikepo Braithwaite :The Advocate
Government Failed Ochanya
The Benue State Government and its Judiciary, have so far failed late Ochanya Ogbaje of blessed memory. As a mother myself, I was moved to tears when I heard the news that Andrew Ogbuja, accused of sexually abusing Ochanya, had been discharged and acquitted. Even though Section 18 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) sets educational objectives that the Government should achieve for Nigerians, particularly Section 18(3) which includes free primary to tertiary education, and adult literacy, there was no functioning primary school in Ogene Amejo Village where Ochanya’s family resides; their public school was allegedly shut down in 2011 due to non-payment of Teachers’ salaries, so she was constrained to move to her relatives’ house in Gboko just to be able to receive an education. See the case of Olufunmilayo Ransome-Kuti & 3 Ors v AGF, COAS & 7 Ors 1985 2 N.W.L.R. Part 6 Page 211 at 230.
When the story broke in October 2018, that 13 year old Ochanya had died as a result of VVF (Vesico Vaginal Fistula) caused by alleged continuous rape by her Uncle, Andrew and his son, Victor Ogbuja from the tender age of 8, I wrote about this unfortunate occurrence on 30/10/18, and expressed my hope that justice would be served in this matter; so far, I do not think it has.
Pedophilia/Paedophilia/Pedophilic or Pedophilia Disorder is a psychosexual disorder characterised by adults having sexual interest in children who have not reached the age of puberty, or actually engaging or attempting to engage in sexual acts with them. I must say that even though I am neither a Psychologist or Psychiatrist, I concur with this definition of pedophilia, and disagree with the more recent diagnostic literature which distinguishes between such sexual interest and desires which are not acted upon as not necessarily being a mental disorder, and the actual sexual contact with children which is diagnosed as a mental disorder. For me, whether it is just an interest or it is an interest that is actualised, they both constitute sickness and perversion; the only difference between them being that it doesn’t constitute a criminal offence, until such deviant sexual conduct is acted upon.
The Diagnostic and Statistical Manual of Mental Disorders (2013; DSM-5) stipulates that the interest or behaviour must be present for at least six months – in Ochanya’s case, the sexual abuse and assault was sustained for approximately five years, and the perpetrator must be at least five years older than the victim. Andrew Ogbuja who was accused of this heinous crime, was about 37 years older than her, while Victor (now at large), whose age I have been unable to confirm, seems to be more than five years older than Ochanya, stemming from the fact that he was a final year student at the University of Agriculture is 2018, when Ochanya was just a Secondary School first year student.
Of course, we all know that Ochanya’s extended family, the Ogbujas failed her abysmally. Not only did they breach and abuse the trust reposed in them by Ochanya’s Parents, Mrs Felicia Ogbuja was convicted by the Federal High Court sitting in Makurdi for negligence in failing in her duty to protect Ochanya from abuse by her son, and sentenced to just a few months in prison. But, why only her son?
What baffles me is how Andrew Ogbuja was acquitted of the charges of rape (against a minor), and assault which caused the death of Ochanya. The trial Judge decided that the Prosecution had failed to prove its case, and based his acquittal on the fact that the two medical reports that were tendered as exhibits, conflicted. That while the one from the Makurdi Medical Centre (which did not meet the World Health Organisation standard of autopsy reports) stated that Ochanya died from natural causes, the one from Lagos stated that she died from injuries occasioned from sexual assault. Another reason given for the acquittal, was that there was no specimen from the accused to compare with the Medical Reports, to confirm that Ochanya had been raped by the Ogbujas. I find this reasoning extremely faulty, on several levels. In my opinion, the trial Judge failed to exercise his discretion judicially and judiciously.
The judgement is tantamount to deciding that matching the specimen of a perpetrator to the victim of rape/medical report, is the only way to prove rape. That in the absence of such specimen, all other evidence tendered does not count. How can this be so, when we know that rape can be very difficult to prove, and therefore, all evidence that points to the fact that the offence was committed, should be properly considered.
Firstly, how can a 13 year old child who was on admission for two months prior to her death because of VVF, have died of natural causes, according to the Makurdi Report? Death by natural causes means that there was no external reason for an individual’s death, like old age or cancer. Ochanya’s sickness was caused by an external reason – rape. VVF is not an illness that develops by itself; it occurs as a result of external trauma to the sexual/reproductive organs. From the time Ochanya’s story broke in 2018, the whole of Nigeria was aware that she died from complications arising from VVF, and the Lagos Medical Report confirmed this. VVF is a hole that develops between a female’s vagina and bladder, resulting in an incessant leakage of urine. This can happen when girls who are not fully developed, are forced into early marriage and/or have sex or get pregnant and suffer trauma either during sex or labour, since their organs – pelvis, vagina etc are not fully developed. Whether by virtue of the Child Rights Act, the Criminal Code Act or Penal Code Act, Ochanya was a child when she suffered this terrible abuse.
Secondly, if the two medical reports were in conflict, the trial Judge should have taken oral evidence in that regard, to establish which report was authentic. Why was any credence even lent to the Makurdi Report which was said to be sub-standard? See the case of Falobi v Falobi 1976 10 N.S.C.C. 576 at 581 where the Apex Court held that “where affidavits are irreconcilably in conflict, the Judge hearing the case, in order to resolve the conflict properly, should first hear oral evidence from deponents and witnesses as the parties may be advised to call”. Were the Doctors and Nurses who attended to Ochanya during her two-month stay at the Federal Medical Centre, Makurdi, not called as witnesses? What did they say? What about her mother and those who knew that Ochanya had been reduced to wearing diapers, because she had lost control of her bladder (and possibly rectum) due to the trauma she had suffered from rape and sodomy? What about Mrs Ogbuja’s daughter, who was said to have caught Victor raping Ochanya, did she testify? She was probably prevented from so doing, in order not to further implicate her family members. What about her classmates or teachers in her school, who may have perceived the unmistakable smell of urine that follows a victim of VVF, were they not called to give evidence? I submit that the trial Judge may not have seized all the opportunities available to him to unravel the truth about which medical report was authentic and which one was manipulated to conceal the truth, and also chose to ignore the evidence in the Lagos Medical Report. Could the Ogbujas have had the haphazard Makurdi Medical Report issued to favour them, and absolve them from criminal liability? After all, Mrs Ogbuja has been convicted of failing to protect Ochanya from her son, Victor, and she had threatened to throw Ochanya out of her house, if she reported the sexual abuse.
Thirdly, proof of rape is not only done by taking specimens from the victim and the perpetrator, and matching them. Even in countries that have the most advanced technology, if a rape kit is not done on a victim almost immediately after the unfortunate incident occurs, or the victim has a bath thereafter, all physical evidence disappears. The constant leakage of urine that Ochanya suffered, would have easily washed away any specimen from anyone who had raped her. It wasn’t even as if Ochanya was taken to hospital the day she was raped. The trial Judge therefore, should have relied on other evidence in order to do justice to the case, and come to an informed decision, like evaluating other direct and circumstantial evidence.
Fourthly, what about the video recording of Ochanya before she died, naming the Ogbujas as her rapists and confirming that they slept with her? Were Ochanya’s statements not direct evidence, corroborated by the Lagos Medical Report? How then, could the Judge discountenance and ignore her statements, attaching no weight to them, to hold that Ochanya did not tell her story before she died? Did Ochanya’s statements in the video qualify as a dying declaration which should have been investigated thoroughly, because they were extremely important in ascertaining the truth? See Section 209(3) of the Evidence Act 2011 (EA). In Okoro v State 2007 2 N.W.L.R. Part 1019 Page 530 at 544-545 per Omaje JCA, the Court of Appeal defined a dying declaration inter alia as “a statement made by a person who may die from the injury received from a person whom the deceased person identified as the person who inflicted on him (the deceased), the injury that eventually caused his death”. There was certainly no reason for Ochanya not to tell the truth, when she was in such a bad condition. See the case of Ekpo Isong v State 2009 1 N.W.L.R. Part 1122 Page 354 at 368. Also see Section 40(1) of the EA. In Igbine v State 1997 9 N.W.L.R. Part 519 Page 101 at 108 per Munkata-Coomassie JCA, the Court of Apoeal held that in the case of rape, the corroboration required demands such corroboration to clearly implicate the accused. I submit that the Lagos Medical Report corroborated Ochanya’s declaration which implicated the Ogbujas, and it was preposterous that the trial Judge could have held that there was no evidence to convict Andrew Ogbuja. It is obvious that little Ochanya who had not yet reached the age of consent was raped; they had unlawful carnal knowledge of a child by force, threat, fear and intimidation thereby fulfilling an essential ingredient of rape that the intercourse must be without the woman’s consent. See the case of Popoola v State 2013 17 N.W.L.R. Part 1382 Page 96 at 123 per Ariwoola JSC. How the little child must have suffered and lived in fear, with the family gang-up against her.
Section 282(1)(e) of the Penal Code states that a man commits rape who has sexual intercourse with a woman, with or without her consent, when she is under the age of 14 or of unsound mind. Ochanya was 8 when the rape started. She did not even attain the age of 14, before she died. In Jegede v The State 2001 14 N.W.L.R. Part 733 Page 264 per Belgore JSC (as he then was) the Apex Court held that “the important and essential element of the offence of rape, is penetration”. It has also been held that even the slightest penetration, will be sufficient to constitute the act of sexual intercourse. Proof of rupture of the hymen is unnecessary to establish the offence of rape. See the case of Ogunbayo v State 2007 8 N.W.L.R. Part 1035 Page 157 at 182-183 per Ogbuagu JSC. Medical examination had proved that Ochanya’s hymen had been ruptured, and she had become incontinent.
With all these matters arising, it is difficult to believe that no case or charges could be proven against Andrew Ogbuja and his son. It is strange that in light of late Ochanya’s revelations in which she clearly identified her attackers, corroborated by the Lagos Medical Report and evidence of some of the prosecution witnesses, because there was no specimen from the Defendants, they were able to go scot free. It is a travesty of justice. The Lagos Report even evinced the fact that the VVF disease which arose from the sexual abuse Ochanya suffered, caused her death. What more is required to prove Manslaughter? The death of Ochanya was caused by the acts of the rapists whom she identified as Andrew & Victor Ogbuja; the Defendants intended to have unlawful carnal knowledge of her, and it was this continuous violation of Ochanya that caused her death; the acts perpetrated against little Ochanya were dangerous, unlawful, reckless and rash. See the case of Mareni v The State 2010 3 N.W.L.R. Part 1181. I urge the Benue State Government, to appeal the decision.