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Prosecutorial challenge, politics may set ‘fleeing’ Adamawa REC free

By Joseph Onyekwere (Lagos) and Ameh Ochojila (Abuja)
26 April 2023   |   4:21 am
Despite the receipt of a letter from the Independent National Electoral Commission (INEC) detailing alleged impropriety of the actions of Resident Electoral Commissioner (REC) of Adamawa State, Hudu Yunusa Ari...

Hudu Yunusa Ari

Despite the receipt of a letter from the Independent National Electoral Commission (INEC) detailing alleged impropriety of the actions of Resident Electoral Commissioner (REC) of Adamawa State, Hudu Yunusa Ari, and the Inspector-General of Police (IGP) directing an investigative team to expedite action on the contents of the letter, the possibility of prosecuting the ‘fleeing’ REC is low.

This is considering the fact that he has not been apprehended to aid the investigation authorised by President Muhammadu Buhari, and also the confusion regarding the appropriate body to do so, if that is to happen.

President Buhari last week approved Ari’s immediate suspension, pending the completion of an investigation by the IGP, Usman Baba, into the actions of the REC during the just concluded controversial supplementary election in Adamawa.

After its investigation, the police ought to proceed with the prosecution or turn over the suspect to the appropriate authority for prosecution, if they found out that he has questions to answer.

Adamawa governor, Umaru Fintiri, had on his part, insisted that he would prosecute the REC.

While some stakeholders argue that the law allows INEC to prosecute him, others insist that the appropriate authority to prosecute the suspended REC is the Attorney-General of the Federation (AGF).

As this debate rages, there are fears in some quarters that politicians may contrive these debates to scuttle the investigation and finally provide an escape route for the embattled suspect, who is alleged to be at large presently.

Human rights lawyer, Inibehe Effiong, maintained that the primary prosecutorial authority in the case lies with INEC by virtue of Section 145 of the Electoral Act, 2022, which has vested in the electoral body, the power to prosecute offences under the Act.

“The declaration or announcement of result by a person, who knows such result to be false, and without legal basis, is an offense under Section 120 of the Electoral Act and the punishment is imprisonment for 36 months.

“Therefore, it’s the responsibility of INEC to file charges against the suspended REC. I expect INEC to file charges at the Adamawa State High Court against the suspended REC as provided by law,” he said.

Effiong pointed out that it is also possible for the REC to be charged for other offenses outside the declaration of false result.

“Charges relating to disorderly conduct and threat to public peace may also be filed and prosecuted by the Nigeria Police Force,” he suggested.

Similarly, Douglas Pepe (SAN) agreed that INEC has exclusive powers under section 145 of the Electoral Act to prosecute electoral crimes such as the crime of making a false declaration of result provided by section 120(4) of the Electoral Act, 2022.

“However, the actions of the Adamawa REC are also offences under the Penal Code applicable to Adamawa State. The EFCC may also come in where an allegation of corruption is revealed. Thus, INEC, Adamawa State government and EFCC may have power to prosecute depending on the offence for which the REC is charged,” he suggested.

Pius Danba, a lawyer, however, insists that the AGF and the state Attorney General (AG) have the power to prosecute.

According to Danba, the power of all public prosecution rests with the two offices. He explained that the power could be delegated to the police or INEC to prosecute, adding that the AGF can as well prosecute by himself.

For Walson Jack, the suspect has not been arrested and charged with any offence yet, an indication that the authorities might not actually be serious in making him face the law.

“When he is arrested, we would get a clear indication of what his alleged offence is,” he said.

According to Jack, when he is investigated and found culpable for prosecution, the offence alleged to have been committed would be contrary to a specific law, which would give a clue as to who could prosecute him.

“Be that as it may, most federal offences could be prosecuted by the Federal Ministry of Justice. The AGF is the Chief Law Officer and his chamber is the Chief Prosecutor,” he explained, adding that other agencies could prosecute on behalf of the AGF.

However, Christian Oti, also a lawyer, thinks differently. According to him, INEC has not been given the power to prosecute electoral offenders.

He argued that they might submit their complaints to the police, who may then prosecute on behalf of the state. He held that the IGP could prosecute electoral offences committed against the state, but in the circumstances, the police could also prosecute.

On the fears that he could escape prosecution, the lawyer said the man couldn’t have had the impudence to do that, without government backing or some political influence.

A Senior Advocate of Nigeria (SAN), Ebute Moses, argued that INEC is a creation of the National Assembly and the Constitution of Nigeria, so, any infractions of the law by any of its staff, especially in relation to an election organised or conducted by her is against the federation and the law enforcement agencies of the Federal Government are responsible for prosecutions.

The learned silk also held that the police are responsible for prosecution of all offences, whether federal or state.

On the fears that the suspect may escape prosecution Moses said such fears are unfounded.

Also, an Abuja based lawyer, Jerry Aondo dismissed the fear that the suspect could evade prosecution through exercise of wrongful prosecutorial powers.

The lawyer explained that because it is a criminal offence that is penal in nature and committed in the north, the police could charge and prosecute him relying on the express provisions of Sections 4 and 24 of the Police Act.

While some stakeholders are demanding that the suspect be declared wanted, others are of the view that the whole process will soon die down and swept under the rug by the ruling All Progressives Congress (APC) that he had sought to favour in the botched declaration.