The Ekiti state government has told Abubakar Malami, the attorney-general of the federation (AGF) that the report of a military panel set up to probe alleged rigging of the June 21, 2014 governorship election cannot be used to prosecute anyone.
Owoseni Ajayi, the state commissioner for justice, who said there were plans to prosecute prominent members of the Peoples Democratic Party (PDP) in Ekiti, said the matter of the election had been decided from the tribunal level up to the supreme court.
Ajayi said no other panel could sit on any matter already decided by the apex court.
He said while the AGF was vested with prosecution powers under section 174 of the constitution, the powers were neither absolute nor unlimited.
He added that the sanctity of the judicial process and respect for the principles of federalism must also be adhered to.
“Unless an alleged criminal act constitutes an offence under a federal enactment, the attorney-general of the federation will definitely be acting ultra vires by any purported move to prosecute an alleged offender before any state or federal court in Nigeria without a fiat by the attorney-general of the respective state, vested with constitutional jurisdiction to prosecute criminal matters under the state law,” Ajayi said in an open letter.
“Although the electoral act 2010 (as amended) is a federal enactment, which creates several offences triable only in the magistrate or high court of a state in which the offence is committed, prosecution of such offences can only be undertaken by the Independent National Electoral Commission (INEC), upon a recommendation made to it by an election petition tribunal for the prosecution of any person or individual disclosed in an election petition or upon findings, after thorough investigation by the police.”
Owoseni urged Malami to take note of the provisions of sections 149 and 150 of the electoral act 2010 (as amended).
“Section 149. The commission shall consider any recommendation made to it by a tribunal with respect to the prosecution by it of any person for an offence disclosed in any election petition,” the letter read.
“150 (1) An offence committed under this act shall be triable in a magistrate court or a high court of a state in which the offence is committed, or the federal capital territory, Abuja.
“(2) A prosecution under this act shall be undertaken by legal officers of the commission or any legal officer appointed by it.
Owoseni said the findings, reports and recommendations of the Nigerian army board of inquiry did not emanate from an election petition tribunal as specified by the electoral act.
He added that the supreme court in the suit number SC 113/2015 APC vs PDP and 4 others, had on April 14, 2015 delivered a judgment in which it affirmed the regularity of the election and the validity of the results as declared by INEC.
He added that INEC, the statutory body vested with the conduct of elections in Nigeria, was part of the suit up to the supreme court level and vigorously defended the regularity of the 2014 Ekiti state governorship election.
Owoseni advised the AGF to resist any undue political pressure to act contrary to the provisions of the laws of the land.