The debate over the Attorney General of the Federation’s (AGF) powers to prosecute electoral offenders highlights not just legal ambiguities and institutional weaknesses but also explains why electoral malpractices fester. AMEH OCHOJILA reports that such debate underscores Nigeria’s enforcement challenges.
The question of whether the Attorney General of the Federation (AGF) and the Minister of Justice has the power to prosecute electoral offenders is both a legal and political issue. It engages constitutional provisions, statutory mandates, and the practical realities of Nigeria’s electoral system.
Section 174 of the 1999 Constitution (as amended) establishes the AGF as the chief law officer of the federation, empowered to institute, take over, and discontinue criminal proceedings.
In practice, this broad prosecutorial authority extends to electoral offences. Additionally, the Electoral Act 2022, which governs the conduct of elections, delineates offences such as vote buying, falsification of results, and voter intimidation.
However, the Act assigns primary responsibility for investigating and prosecuting these offences to the Independent National Electoral Commission (INEC). Section 145 of the Electoral Act 2022 specifically empowers INEC to prosecute electoral offenders but also allows it to delegate this responsibility.
It has been argued that despite its statutory mandate, INEC lacks the institutional capacity to comprehensively investigate and prosecute electoral offences. The commission neither has a dedicated prosecutorial unit nor sufficient manpower to handle the sheer volume of violations that occur during elections.
Only recently, stakeholders backed the creation of the National Electoral Offences Commission, arguing that INEC lacks the resources to prosecute electoral offenders effectively.
Speaking at a House of Representatives hearing, INEC Chairman, Mahmood Yakubu, emphasised that electoral reform is incomplete without stringent sanctions.
He noted that INEC has struggled with prosecuting offenders, citing only the fact that the electoral umpire had achieved only 60 convictions out of 125 cases since 2015.
Among the 60 successful convictions include the prosecution and conviction of Prof Ignatius Uduk, of the University of Uyo for three years. He was charged with perjury, announcing and publishing false results during the 2019 general elections in Essien Udim State Constituency, where he served as the returning officer.
Before his trial and conviction in February this year, INEC had similarly secured the conviction of a professor of Soil Science at the University of Calabar, Prof. Peter Ogban, four years ago. He was jailed for three years for a similar offence.
Ogban, who has served his three years sentence, was the INEC returning officer for the Akwa Ibom North-West Senatorial District election in 2019.
There is no public record of the AGF or other officers of the Ministry of Justice prosecuting alleged electoral offenders, let alone securing a conviction.
To be even more effective, Yakubu is supporting the unbundling of INEC and the establishment of an electoral offences tribunal with exclusive jurisdiction to handle such cases. He also warned against granting the AGF regulatory authority over the commission, stressing the need for its independence.
This institutional weakness and fear of political influence have fueled long-standing calls for the establishment of an independent Electoral Offences Commission, a proposal that has remained stalled in the National Assembly for years.
In the absence of such a commission, the AGF, as the chief law officer, could intervene to prosecute electoral offenders, either directly or by delegating the responsibility to law enforcement agencies.
However, successive AGFs have hesitated to exercise this power, often due to political considerations.
But the AGF is an appointee of the President, and in Nigeria’s highly partisan environment, questions of neutrality and selective prosecution frequently arise.
Indeed, there are some schools of thought that believe, and allege that electoral offences are prosecuted selectively, with offenders linked to ruling party interests shielded from legal consequences.
Proponents of such thoughts believe that the absence of an independent mechanism to handle electoral offences has led to widespread impunity, further undermining the credibility of elections.
Therefore, the ongoing debate on whether the AGF could prosecute electoral offenders only underscores a broader governance challenge in the country, that is, where legal provisions exist but enforcement remains weak.
For yet another group, without an independent prosecutorial body, the risk of political interference in handling electoral offences remains high.
In the midst of all these, some legal experts insist that the AGF has the authority to prosecute electoral offenders under constitutional provisions and the Electoral Act. Notwithstanding, the execution of this power is fraught with political and institutional challenges.
It is in that light that they argue that until Nigeria establishes an Independent Electoral Offences Commission, the prosecution of electoral crimes will likely remain inconsistent, reinforcing a culture of electoral impunity.
A recent ruling by the Federal High Court in Abuja, further clarified this issue as it stated that the AGF and Minister of Justice does not have the power to initiate, maintain, and prosecute offences under the Electoral Act, 2022.
Justice Inyang Ekwo made this declaration while delivering judgment in a suit filed by the Peoples Democratic Party (PDP) candidate in the 2023 governorship election in Ogun State, Oladipupo Adebutu, and nine others.
The AGF was the sole defendant in the suit marked FHC/ABJ/CS/1038/23. The plaintiffs had sought to prevent the AGF from prosecuting them over allegations of vote-buying, which had been raised by the Ogun State Governor, Dapo Abiodun, and the All Progressives Congress (APC).
They argued that the AGF lacks the constitutional authority to initiate and continue such prosecutions under the Electoral Act, citing Sections 153, 158, 160, and Paragraph 15, Part 1, 3rd Schedule of the Constitution.
One of the key issues before the court was whether the prosecution of electoral offences under the Electoral Act 2022, is the exclusive prerogative of INEC, as stated in Section 145(2) of the Act and reinforced by the constitutional provisions cited.
In his judgment, Justice Ekwo agreed with the plaintiffs, ruling that only INEC has the power to initiate and maintain criminal proceedings for offences under the Electoral Act 2022.
He further held that the AGF’s attempt to initiate, commence, and prosecute electoral offences was a violation of the Constitution and the Electoral Act.
The court determined that the AGF’s exercise of prosecutorial power in this context was ultra vires, going beyond its legal authority.
Justice Ekwo emphasised that while the AGF has the power to take over any proceedings, such actions can be challenged if they are not in accordance with the law.
He, however, declined to grant some of the plaintiffs’ prayers on the grounds that doing so would interfere with decisions of courts of coordinate jurisdiction.
Ultimately, the court ruled in favour of the plaintiffs, affirming that their case had been established according to the law.
This ruling reinforces the principle that INEC, as the body constitutionally entrusted with conducting elections, is also the proper authority for prosecuting electoral offences.
It underscores the need for institutional clarity and independence in the prosecution of electoral crimes. While the AGF may have broad prosecutorial powers under the Constitution, their application must align with specific statutory mandates. This judgment signals a judicial pushback against executive overreach in matters of electoral justice.
The implications of this decision extend beyond the immediate case to some extent. It raises critical questions about Nigeria’s electoral integrity and the enforcement of election laws.
If INEC remains the sole body empowered to prosecute electoral offences but cannot do so effectively, then electoral crimes will continue to go largely unpunished.
Some lawyers held that the ruling indirectly strengthens the argument for the creation of an Independent Electoral Offences Commission. Without such a body, Nigeria risks perpetuating a system where electoral violations occur with little consequence, ultimately weakening democratic governance.
As the legal and political debate continues, this ruling also provides an opportunity to re-examine Nigeria’s approach to electoral offences.
However, whether through legislative action or policy reforms, there is an urgent need to strengthen the enforcement of electoral laws. The judiciary has made its stance clear, but the challenge remains in implementation, and in creating a system that ensures accountability, impartiality, and the effective prosecution of electoral offenders.
Until these issues are addressed, the question of who truly has the power to prosecute electoral offenders will remain a contentious and unresolved issue in Nigeria’s democracy, especially as losers in electoral contests have the right to appeal against the decision.
Interestingly, many lawyers disagree with the judgment delivered by Justice Ekwo, and one of them is Ebute Moses (SAN) insists that the AGF’s powers to prosecute extends to electoral offences.
According to the senior lawyer, the Attorney General of the Federation is legally and constitutionally empowered to prosecute all federal offences or any offence enacted by an act of the National Assembly or contained in any federal law or statute, and this includes the Electoral Act.
He stressed that the AGF is the chief law officer of the federation and, therefore, has unlimited powers of prosecution about federal offences.
“Therefore, even where the legal department of the electoral commission has instituted or commenced the prosecution of an electoral offender, the attorney general has the power under the constitution to take over and continue the same,” he argued.
Moses added that the Electoral Act is inferior to the Constitution, arguing that the power donated to INEC by electoral law is inferior to the one donated to the AGF by the constitution.
Also toeing the same line of argument, an Abuja-based lawyer, Alechenu Ogbuche, said that the attorney general by law is empowered to prosecute electoral offences.
He also added that the constitution has given the prosecutorial powers to the AGF on matters relating to federal offences and he initiates, discontinues, and even delegates such roles to relevant agencies, ministries.
While a former chairman of the Ikorodu Branch of the NBA and Convener, Fight Against Corruption in the Judiciary, Bayo Akinlade, agreed that the attorney general has powers to prosecute electoral offences, he claimed that such powers is limited to the Federal Capital Territory (FCT) and other federal electoral offences.
According to him, as far as state and local government elections are concerned, states’ AGs are the ones to prosecute.
For another lawyer, Monday Ikpe, the attorney general of the federation is mandated by law to prosecute federal cases. Therefore issues relating to electoral offences will not be an exception.
He maintained that it is a constitutional role accorded the office of the AGF, arguing that any other law is inferior to the constitution.
