*MEMORANDUM*
To: Senator David Mark Caretaker National Chairman African Democratic Congress (ADC)
From: Independent Legal Advisor
Date: 6 April 2026
Subject: *Legal Assessment of the Validity of the Caretaker Committee Leadership and Current Position vis-à-vis the ADC Constitution, the Electoral Act 2022, INEC, and Pending Litigation*
Purpose
This memo provides a clear, objective summary of the correct legal position regarding the formation and legitimacy of the David Mark-led Caretaker Committee (constituted following the July 2025 NWC and NEC processes). It is based on: (i) the ADC Constitution (2022 version as registered with INEC), (ii) the Electoral Act 2022, (iii) INEC’s 6 August 2025 internal memo, and (iv) the current Court of Appeal and Federal High Court proceedings as of 6 April 2026.
Key Facts
• The Caretaker Committee (with you as National Chairman and Ogbeni Rauf Aregbesola as National Secretary) was constituted by NWC resolution (circa 2 July 2025) and ratified by the 99th NEC meeting on 29 July 2025.
• The party’s 29 July 2025 letters to INEC expressly relied on Articles 19(12)(vii) and 19(14)(N, O, P & S) of the 2022 Constitution to justify the NWC’s role and the Caretaker Committee’s exercise of NEC powers pending ratification.
• INEC’s 6 August 2025 memo (signed by Deputy Director Joan Arabs) flagged non-compliance with Section 82(1) & (5) of the Electoral Act 2022.
• Following the rival faction’s suit (Hon. Nafiu Bala Gombe), the Court of Appeal (March 2026) ordered maintenance of the status quo ante bellum. INEC has since removed the names of the Mark-led NWC from its portal and suspended recognition of any faction pending Federal High Court determination of the substantive suit.
Legal Analysis
1. Compliance with the ADC Constitution (2022)
• Articles 13 and 14: Article 13(11) expressly limits the National Working Committee to “day-to-day administration of the Party and shall be responsible to the National Executive Committee” and to “perform any other function assigned to it by the National Executive Committee.” Article 13(13) vests primary administrative authority in the NEC (including power to establish ad-hoc/standing committees). Article 14 details the powers of specific officers but contains no provision for a national Caretaker Committee, interim leadership, or NWC-initiated wholesale replacement of the national executive.
• Article 16 (Registration): This article is limited to the keeping of a membership register at Ward Secretariats. It has no relevance to leadership appointments or caretaker structures.
• Article 17 (Tenure of Office): Clause 4 (the vacancy-filling provision) states that where a vacancy occurs in any party office, “the appropriate Executive Committee shall appoint a substitute from the zone where the former office holder comes from pending the conduct of election at the next Congress or Convention.” This is narrow: it applies to individual vacancies, not a coordinated dissolution and replacement of an entire NWC via mass resignations followed by NWC-led caretaker creation.
• Article 19 (Nomination of Candidates for Election to Public Offices): This is the provision your team relied upon. Sub-clauses 19(12)(vii) and 19(14)(N, O, P & S) are said to empower (i) the NWC to perform NEC functions pending ratification by the next NEC, and (ii) a caretaker committee to exercise NEC powers pending ratification or the next National Convention (including ratification of NWC decisions and dissolution/constitution of interim bodies).
Correct constitutional position:
The process has a plausible internal-party argument based on Article 19’s ratification and interim-powers language. However, it sits in tension with the clear hierarchy in Articles 13 and 14 (NWC subordinate; NEC supreme) and the narrow vacancy rule in Article 17.4. Nigerian courts generally defer to a party’s interpretation of its own constitution for purely internal matters, but only where the interpretation is reasonable and not contrary to the Electoral Act. The absence of any explicit mention of a “caretaker committee” with full NEC powers in the core organisational articles (13–14, 17) leaves the arrangement vulnerable to challenge.
1. Compliance with the Electoral Act 2022
Section 82(1) mandates at least 21 days’ notice to INEC for any convention, congress, or meeting held to elect executive committees or take decisions affecting the party’s leadership. Section 82(5) renders any such exercise invalid if notice is not given.
INEC’s August 2025 memo correctly notes that notice was given only for the 29 July 2025 NEC (which merely ratified earlier NWC decisions), not for the original NWC meeting that actually constituted the Caretaker Committee. This is a fundamental procedural defect. INEC’s view that the exercise is “invalid ab initio” is legally sound on the statute. Ratification by NEC cannot retroactively cure the notice failure.
1. Current Judicial and Administrative Position
• The Court of Appeal has not ruled on the substantive validity of your appointment; it only directed preservation of the status quo ante bellum.
• INEC is correctly applying the order by maintaining neutrality and refusing to recognise any faction or monitor any congress/convention until the Federal High Court decides the main suit.
• No final judicial determination has been made on the merits. The substantive suit remains pending.
Correct Overall Legal Position
Your appointment as Caretaker National Chairman does not enjoy clear, unambiguous validity under either the ADC Constitution or the Electoral Act. While Article 19 provides a colourable internal defence, the combination of:
(a) the narrow language of Articles 13, 14 and 17,
(b) the explicit notice violation under Section 82 of the Electoral Act, and
(c) INEC’s administrative derecognition
renders the leadership structure legally precarious. It is not automatically “invalid” in the sense of a court having so declared, but it is practically and administratively suspended and highly likely to be set aside if the Federal High Court adopts INEC’s reasoning.
Risks
• Continued operation without INEC recognition exposes the party to legal nullification of any congresses, primaries, or candidate nominations.
• Further actions (e.g., the proposed April 14 convention) risk being declared null and void.
• Political opponents and the rival faction may obtain further injunctive relief.
Recommendations
1 Immediate: File an urgent application at the Federal High Court (or join as necessary party) to expedite hearing of the substantive suit and seek clarification/lifting of the status quo order.
2 Short-term: Direct all state chapters and organs to refrain from any leadership-related meetings or conventions until proper 21-day INEC notice is given and court clearance is obtained.
3 Medium-term: Consider convening a properly noticed NEC or National Convention (with full Section 82 compliance) to ratify or reconstitute leadership under clearer constitutional footing.
4 Longer-term: Initiate a formal constitutional review/amendment process (per Article 23) to expressly provide for caretaker/interim mechanisms, thereby closing the interpretive gaps in Articles 13–17.
5 Political: Explore mediated internal resolution with the Gombe faction to avoid a prolonged leadership vacuum that benefits only the ruling party.
This assessment is based solely on publicly available documents and the law as it stands on 6 April 2026. I remain available for a detailed briefing or to review any draft court processes.
Signed
Daniel Elombah
Independent Legal Advisor
