The Federal High Court in Abuja has ruled that the Attorney General of the Federation (AGF) and Minister of Justice, Chief Lateef Olasunkanmi Fagbemi, SAN, lacks the legal authority to initiate, maintain, or prosecute offences under the Electoral Act, 2022.

Delivering judgment on Monday, Justice Inyang Ekwo declared that only the Independent National Electoral Commission (INEC) has the statutory power to prosecute electoral offenders nationwide.

The ruling stemmed from a lawsuit (FHC/ABJ/CS/1038/23) filed by Oladipupo Adebutu, the Peoples Democratic Party (PDP) candidate in the 2023 Ogun State governorship election, alongside nine others. The AGF was the sole defendant in the case.

The plaintiffs sought to prevent the AGF from prosecuting them over alleged vote-buying, accusations made by Ogun State Governor Dapo Abiodun and the All Progressives Congress (APC). They argued that, under sections 153, 158, 160, and Paragraph 15, Part 1, Third Schedule of the 1999 Constitution (as amended), only INEC has the legal authority to prosecute electoral offences.

Justice Ekwo upheld their argument, stating that allowing the AGF to prosecute electoral offences would contravene both the 1999 Constitution and the Electoral Act, 2022.

“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 ruled.

However, the judge declined to grant some of the plaintiffs’ additional reliefs, noting that doing so could interfere with existing legal rulings.

The plaintiffs argued that the AGF’s attempt to prosecute them amounted to an abuse of power and a conflict of interest, citing:

• A petition by Ogun APC Chairman, Yemi Sanusi, to the AGF, accusing Adebutu of vote-buying.
• A directive from the AGF, through the Director of Public Prosecution (DPP), ordering a police investigation.
• The AGF filing charges against Adebutu and others before the Ogun State High Court in Abeokuta, despite the investigation being incomplete.
• The plaintiffs not being arrested and INEC not initiating or requesting any investigation into the allegations.

They also sought an order of perpetual injunction restraining the AGF from prosecuting them for offences under the Electoral Act. This judgment reinforces INEC’s exclusive authority to handle electoral offences while limiting the AGF’s role in such matters. It also raises concerns about political interference in electoral prosecutions.

The ruling may have significant implications for future electoral cases, particularly regarding the independence of INEC and the balance of power among government institutions.