Court rules AGF lacks power to prosecute electoral offences

The Federal High Court sitting in Abuja on Monday held that the Attorney General of the Federation (AGF) and Minister of Justice lack the power and authority to initiate, maintain, and prosecute offences under the Electoral Act, 2022.

The trial judge, Justice Inyang Ekwo, made the declaration while delivering judgement in a suit numbered FHC/ABJ/CS/1038/23, filed by the governorship candidate of the Peoples Democratic Party (PDP) in the 2023 governorship election in Ogun State, Oladipupo Adebutu, and nine others, with the AGF/Minister of Justice as the sole defendant.

The plaintiffs had, in their originating summons, prayed the court to stop the office of the AGF from prosecuting them over an allegation of vote-buying levelled against them by the Ogun State Governor, Dapo Abiodun, and the All Progressives Congress (APC).

They prayed the court to hold that the AGF cannot initiate, commence, and continue the prosecution of electoral offences under the provisions of the Electoral Act, 2022, in view of Sections 153, 158, 160, and Paragraph 15, Part 1, 3rd Schedule of the Constitution.

They wanted the court to determine whether the prosecution of electoral offences under the Electoral Act, 2022, is not the exclusive reserve of the Independent National Electoral Commission (INEC) in line with Section 145(2) of the Electoral Act and Sections 153, 158, 160, and Paragraph 15, Part 1, 3rd Schedule of the Constitution.

Justice Ekwo, in his judgement, agreed with the plaintiffs that it is only INEC that can initiate and maintain criminal proceedings for offences under the Electoral Act, 2022.

The judge further held that the initiation, commencement, and prosecution of electoral offences under the Electoral Act, 2022, by the office of the AGF and Minister of Justice is a violation of Sections 153, 158, 160, and Paragraph 15, Part 1, 3rd Schedule of the Constitution and Sections 144 and 145(2) of the Electoral Act and the independence of INEC.

Justice Ekwo said the act of the defendant in exercising the power to prosecute the plaintiffs in a manner not in accordance with the law is ultra vires and added that “the power of the AGF to take over any proceedings can be challenged if the exercise of the power is not in accordance with the law.”

The court, however, did not grant some of the prayers of the plaintiffs, saying that would amount to tampering with decisions of courts of coordinate jurisdiction, but held that the plaintiff had established his case according to the law and is entitled to justice.

The plaintiffs, in their suit, prayed the court to determine whether, since the facts which formed the fulcrum of charge No. AB/10c/2023 are also the facts that formed the defence and response/allegations of Abiodun and the APC at the Ogun State Governorship Election Petition Tribunal, the filing of the charge is not sub judice and an abuse of court processes capable of overruling the tribunal.

The judge ruled, “Whether the initiation of criminal prosecution against the plaintiffs, who are PDP members, by the AGF, who is a member of the APC, in respect of the dispute which emanated from the March 18, 2023, governorship election in Ogun State is not an abuse of power, illegal, invalid, and void.”

The plaintiffs also prayed the court to declare that it is beyond the power of the AGF to arraign, maintain, and continue their prosecution for alleged electoral offences before the Ogun State High Court in charge No. AB/10c/2023, as well as an order of perpetual injunction restraining the AGF from arraigning and continuing their prosecution for alleged offences created under the Electoral Act in charge between the Federal Republic of Nigeria versus Oladipupo Adebutu and others before the High Court of Ogun State.

An affidavit in support of the plaintiff’s originating summons averred that Dapo Abiodun and the APC, through the
Ogun State APC Chairman, Yemi Sanusi, wrote a frivolous and baseless petition to the AGF, accusing the first plaintiff (Oladipupo Adebutu) of vote-buying during the governorship election and calling for his investigation, which was after he (Adebutu) had filed his election petition before the tribunal.

The AGF, through the Director of Public Prosecution, wrote to the police asking them to investigate the petition of Yemi Sanusi, which culminated in the police inviting the first plaintiff to report at their office on May 2, 2023.
The affidavit averred that the AGF used an interim report of an investigation, which had not been completed, to file a charge against the plaintiffs and arraigned them before the Ogun State High Court, Abeokuta Division.

The affidavit stated that the charge alleged the offence of vote-buying against the plaintiffs during the state governorship election, even though they were never arrested, nor did INEC write to the police to investigate any vote-buying allegation against the first plaintiff.