The Federal High Court sitting in Abuja on Monday ruled that only the Independent National Electoral Commission has the authority to prosecute offences under the Electoral Act, 2022.
Justice Inyang Ekwo stated this while delivering judgment in a suit filed by the governorship candidate of the People’s Democratic Party in the 2023 Ogun State governorship election, Oladipupo Adebutu, and nine others.
The plaintiffs sued the Attorney General of the Federation and the Minister of Justice as the sole defendant in a case marked FHC/ABJ/CS/1038/23.
In their originating summons, the plaintiffs sought to prevent the AGF’s office from prosecuting them for alleged vote-buying accusations levelled against them by the Ogun State Governor, Dapo Abiodun and the All Progressives Congress.
The plaintiffs argued that the AGF lacked the power to initiate, commence, and continue the prosecution of electoral offences under the Electoral Act, citing Sections 153, 158, 160, and Paragraph 15, Part 1, Third Schedule of the Constitution.
They also asked the court to declare that the prosecution of electoral offences is the exclusive responsibility of INEC, as stipulated in Section 145(2) of the Electoral Act.
The plaintiffs further contended that since the allegations of vote-buying were part of the evidence and claims presented by Abiodun and the APC at the Ogun State Governorship Election Petition Tribunal, the criminal charges filed by the AGF were sub judice and constituted an abuse of court process.
The plaintiffs stated that the AGF, as a member of the APC, prosecuting PDP members over disputes from the March 18, 2023, governorship election in Ogun State, was an abuse of power and invalid.
They alleged that Abiodun and the APC, through Ogun APC Chairman, Yemi Sanusi, submitted a baseless petition to the AGF, accusing Adebutu of vote-buying.
They claimed the petition was filed after Adebutu had already lodged his election petition at the tribunal.
The AGF, through the Director of Public Prosecution, directed the police to investigate the petition, leading to Adebutu being summoned by the Police on May 2, 2023.
According to the plaintiffs, the AGF relied on an incomplete investigation report to file charges against them before the Ogun State High Court, Abeokuta Division.
They argued that the charges were baseless, as INEC did not authorise or request any investigation into vote-buying allegations.
In his judgment, Justice Ekwo ruled that the AGF did not have the authority to initiate, maintain, or prosecute offences under the Electoral Act, 2022.
He affirmed that only INEC has the legal power to prosecute electoral offences under the Act.
The judge held that the AGF’s actions violated Sections 153, 158, 160, and Paragraph 15, Part 1, Third Schedule of the Constitution, as well as Sections 144 and 145(2) of the Electoral Act, which upholds INEC’s independence.
Justice Ekwo described the AGF’s prosecution of the plaintiffs as ultra vires (beyond legal authority) and not in accordance with the law.
“The power of the AGF to take over any proceedings can be challenged if the exercise of that power is not in accordance with the law,” the judge stated.
However, the court declined to grant some of the plaintiffs’ prayers, noting that doing so would interfere with decisions of courts of coordinate jurisdiction.
Justice Ekwo concluded that the plaintiffs had made their case and were entitled to justice.
