By Segun Ajibola (SAN)

The aim of this write up is to critically analyze the ambiguity of Article 17(iv) which provides that “no officer in any organ of the party shall hold executive position office in government concurrently”. This has caused a lot of uproar recently as notable members of the party such as the previous legal adviser who was appointed as one of the Directors of the Asset Management Corporation of Nigeria, while serving as the National Legal Adviser of the APC.

In interpreting the said provision, it begs the question “who can be said to hold an executive position in government? The APC Constitution fails to shed any sort of light on this issue, as an executive position in government may include officials such as, the President, Governor, Local Government Chairman, Ministers and Commissioners. While another school of thought may disagree and insist that includes everything Government, including Senators, the House of Representatives and even directors at ministries of the State and Federal Government.

This ambiguity has been in existence since the inception of the APC and has continued to remain all these years and has achieved nothing except confusion and dissatisfaction of aspirants and a recent example, is that of Mrs. Kemi Nelson who contested for the position of Women Leader (South-West Zone) and won same unopposed. Meanwhile some persons have applied unscrupulously applied to the Chairman that the duly elected South West Women Leader, failed to resign from her post as a director at the Nigeria Social Insurance Trust Fund, without fully understanding the provisions of the statute.

While Mrs. Kemi Nelson can be to be a public officer in a government agency, I do not believe she can be said to hold an executive position under this government. The Court in LONGE v. FBN PLC (2006) LPELR-7682 on the nature of executive directors held as follows:

“It is settled that the executive directors are mere senior managers appointed by the Board under the Articles of Association for convenience and interest of running the company.

Consequent upon the above, it is clear that the Mrs Kemi Nelson, is a mere employee of the Federal Government and as such her position cannot be classified as that of an executive officer of the Government.

The ambiguity if this article cannot be overemphasized as definition of who an executive officer of Government to five people can lead to five different answers. The reason for this is not farfetched as there is no definition of who an “Executive officer of Government” in the APC Constitution, the Interpretation Act and the Constitution of the Federal Republic of Nigeria (as amended) and one can be justified if he or she limits the executive officer in government to mean, the President, Ministers, Governors, Commissioners e.t.c and not mere public officers.

The bottom line is that if Section 17(iv) is interpreted literally, no office holder in the APC would be innocent as it would then mean that all public office holders must resign from their jobs in order to volunteer for the party, I therefore state that this provision is unenforceable and this has been the case in recent times when officials of the APC have been appointed to key positions in the Government but none of them have been made to relinquish their party office, and towing that line in the case of Mrs Kemi Nelson would not result in equity, fairness and justice.

Furthermore, Section 40 of the Constitution of the Federal Republic of Nigeria (as amended), clearly with specific reference to right to peaceful assembly and association states as follows:

“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests…”

This provision is unambiguous and to succinctly put, it grants the right to every citizen of this country to belong and participate in any political party of his or her choice and therefore any law that is states otherwise is inconsistent with the provisions of the constitution and therefore unenforceable.