Court rules INEC, not AGF, has right to prosecute electoral offences

A federal high court in Abuja has ruled that the office of the attorney general of the federation (AGF) and minister of justice lacks the power to initiate or prosecute criminal proceedings related to electoral offences.

Inyang Ekwo, the presiding judge, delivered the judgment in a suit marked (FHC/ABJ/CS/1038/2023), filed by Oladipupo Adebutu, the 2023 Peoples Democratic Party (PDP) governorship candidate in Ogun state, and nine others.

The other plaintiffs are Ogunbona Hameed, Tiamiyu Waliu, Egunsola Owolabi, Sanni Adegoke, Dare Ogunleye, Dare Adeoye, Dayo Fashina, Wasiu Enilobo, and Malik Akawo.

The AGF was named as the sole defendant in the case.

The plaintiffs argued that their prosecution by the AGF before the Ogun state high court for alleged vote buying during the last governorship election was an attempt to intimidate them, particularly since Adebutu had challenged the outcome of the polls.

They further noted that while vote buying and related electoral issues were already under review by the election tribunal, the AGF simultaneously brought charges against them in the state court on the same matter.

In his ruling, Ekwo clarified that only the Independent National Electoral Commission (INEC) possesses the legal authority to prosecute electoral offences.

He said the AGF’s actions were unlawful and contravened both the 1999 Constitution and the Electoral Act.

“Going by the provision of section 144 of the Electoral Act, it is INEC that has the power to consider any recommendation made to it by a tribunal with respect to the prosecution of any person for an offence disclosed in any election petition,” the judge said.

“By the facts of this case, the alleged vote buying is pending at the governorship election tribunal and has not been determined before the defendant filed a criminal charge.”

The judge ruled that the AGF’s decision to prosecute the plaintiffs exceeded his legal powers and undermined the roles of both the election tribunal and INEC, noting that the court must uphold the integrity of the two institutions.

“By law, it is for the tribunal to make a recommendation to INEC with respect to the prosecution by it of any person for an offence disclosed in any election petition,” the judge said.

“The defendant (AGF) is not mentioned in the provision as having any business in the issue of vote buying or the prosecution of the allegation thereof.”

“This means the prosecution of the plaintiffs by the defendant on the allegation of vote buying when the matter was still pending before the tribunal was sub-judice, premature and devoid of statutory authority. It was void abinitio.

“Again, by the provision of Section 145 (2) of the Electoral Act, 2022, a prosecution under the Act shall be undertaken by legal officers of the INEC or any legal practitioner appointed by it. This is a very lucid provision, in my opinion.”