Court Tells AGF: You Have No Power To Prosecute Electoral Offenders, Only INEC Can – Adebutu’s Case

The Federal High Court sitting in Abuja, on Monday, held that the Attorney General of the Federation (AGF) and Minister of Justice, Chief Lateef Olasunkanmi Fagbemi, SAN, has no power to initiate, maintain and prosecute offences under the Electoral Act, 2022.

The court, in a judgement that was delivered by Justice Inyang Ekwo, held that only the Independent National Electoral Commission, INEC, has the statutory power to prosecute electoral offenders across the federation.

The judgement followed a suit marked: FHC/ABJ/CS/1038/23, which was filed by candidate of the Peoples Democratic Party, PDP, in the 2023 governorship election in Ogun State, Oladipupo Adebutu and nine others.

The AGF was listed as the sole defendant in the matter.

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 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 1999 Constitution, as amended.

More so, the plaintiffs prayed the court to determine whether the prosecution of electoral offences under the Electoral Act, 2022, is not the exclusive reserve of 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 1999, Constitution, as amended.

Delivering judgement on the matter, Justice Ekwo agreed with the plaintiffs and held that the prosecution of electoral offences under the Electoral Act, 2022 by the office of the AGF and Minister of Justice, would amount to 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, as well as the Independence of INEC

The court held that the defendant (AGF) cannot prosecute cases other than in the manner prescribed by the law.

“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 added.

However, it declined to grant some of the reliefs that were sought by the plaintiffs, stressing that doing so would amount to tampering with extant court decisions.

The plaintiffs had among other things, prayed the court to determine whether in view of the fact that issues that formed the fulcrum of charge No. AB/10c/2023, were also the facts that formed the defence and response/allegations of Dapo Abiodun and the APC at the Ogun State Governorship Election Petition Tribunal, the filing of the charge was not subjudice and an abuse of court processes capable of overreaching the Tribunal.

They urged the court to also determine, “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.”

Likewise, to declare that it is out of 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 verses Oladipupo Adebutu and others before the High Court of Ogun state.

The plaintiffs, in an affidavit they filed in support of their originating summons, told the court 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 (Adebutu) of vote buying during the governorship election and called for his investigation.

They told the court that the allegation came after Adebutu had already filed a petition before the tribunal.

According to the plaintiffs, the AGF, through the Director of Public Prosecution, wrote to the police, asking them to investigate the petition by Sanusi.

They told the court that the AGF’s letter led the police to invite the first plaintiff to report at their office on May 2, 2023.

The affidavit averred that the AGF subsequently used an interim report of an investigation that has not been completed, to file a charge against the plaintiffs and arraigned them before the Ogun state High Court, Abeokuta division.

The plaintiffs said the charge contained allegation of vote buying during the governorship election, when they were never arrested, neither did INEC wrote to the police to investigate them for engaging in the alleged offence.