Why The Office Of Chief Of Staff Is Unconstitutional – TheNigerialawyer

Introduction

News that President Buhari has directed his new cabinet to
report to him through his Chief of Staff, Mal. Abba Kyari has
provoked public commentary from not a few Nigerians who believe,
rightly or wrongly, that it is an abdication of responsibility,
amongst a litany of other perceived demerits.

The President reportedly justified the policy on the ground that
it was necessary to speed up the process of decision-making within
the Administration. Beyond the stated raison d’etre,
however, it is worthwhile to interrogate the legal or
constitutional status of the office of Chief of Staff to both the
President and State Governors. But, first, a few definitions.

Who is a Chief of Staff?

According to Wikipedia, the online data source, “the title
‘Chief of Staff’ identified the leader of a complex
organization, institution or body of persons and it also may
identify a principal staff officer (PSO) who is the co-ordinator of
the supporting staff or a primary aide-de-camp to an important
individual, such as a president or a senior military officer or
leader of a large organization. In general, a Chief of Staff
provides a buffer between a chief executive and that executive’s
direct-reporting team. The Chief of Staff generally works behind
the scenes to solve problems, mediates disputes and deal with
issues before they are brought to the chief executive. Often,
chiefs of staff act as confidantes and advisors to the Chief
Executive, acting as a sounding board for ideas. Ultimately, the
actual duties depend on the position and the people
involved”.

In Nigeria, this office was first introduced with the return of
civil rule in 1999 under President Obasanjo. It appears to have
been borrowed from, if not exactly modelled after, the position of
the Chief of Staff to the President of the United States.

According to the State House website (Nigerian, that is) the
staff of the office of the President perform the following
functions: “administrative duties, protocol, security and
media”, with the Chief of Staff to the President being
responsible for “managing the President’s schedule and
correspondence and any other duties that may be assigned by the
President”.

However, a more detailed remit of the Presidential
CoS presently being circulated in social media, includes the
following:

i. “Coordinating the activities of all Principal Staff
Officers of the President C-IN-C;
ii. Conveyance of all directives and decisions of the
President, C-in-C to the SGF, CDS, members and other top
functionaries of Government;
iii. Formation of ad-hoc bodies as well as stipulating their
terms of reference in conjunction with the SGF;
iv. Chairing of meetings of Principal Staff Officers to the
President, C-in-C;
v. Monitoring and Coordinating the day-to-day activities of the
President, C-in-C;
vi. Clearance of all official military and civil matters as
well as preparation of executive summaries on official
issues;
vii. Arrangement of all official appointments and engagements
of the President, in conjunction with SCOP and ADC to the
C-in-C;
viii. Arrangement and convening of all meetings sanctioned by
the President/C-in-C as well as coverage of such meetings including
provision of secretariat services;
ix. Organizing Federal Executive Council meetings in
conjunction with the Cabinet Secretariat and advising the
President/C-in-C on schedules of the meetings for approval and
eventual communication of same by the CoS to the Cabinet
Secretariat;
x. Attendance of National Defence and Security Council
meetings;
xi. Coordination and attendance of the annual council/boards of
Defence, NA, NN, NAF, NWC, CSC, NDA and NDF as well as following up
all decisions reached at the meetings;
xii. Serving as a link between the President, C-in-C and the
Service Headquarters;
xiii. Vetting of all draft speeches for the President, C-in-C
in respect of service functions;
xiv. Management of correspondence to and from the President,
C-in-C including the circulation of enrolled legislation, proposed
Executive orders, decision memoranda, speeches and other
Presidential documents to relevant State House functionaries for
clearance and comment;
xv. Ensuring that any document being forwarded to the
President, C-in-C is in suitable condition, technically and
substantively for Presidential review and action;
xvi. Maintenance and control of the President, C-in-C’s
projects and welfare accounts;
xvii. Authorisation of use of Presidential Air-fleet by
Government functionaries”.

Legal/Constitutional Status of the Chief of
Staff

The Office of the Chief of Staff to the President (or a State
Governor) is neither specifically recognized nor created by either
the Constitution or the Public Service Rules. Nor, for that matter,
either an Act of the National Assembly or a law enacted by a State
House of Assembly. At least, none that I’m aware of. To that
extent, the validity of those offices depends on whether their
occupants can be said to be belong to the personal staff of the
President or State Governors, as the case may be, within the
contemplation of Sections 171(1)(e) and 208(1)(d),
respectively, of the Constitution. Can they?

It is conceded that the definition of “personal staff”
under the Constitution (like every other word or phrase used
therein) should be given a broad and liberal interpretation.
However, I believe that the remit of the Chief of Staff to the
President outlined above belies that view. This is because, to my
mind, those functions are clearly official. However, assuming,
without conceding, that the CoS belongs to personal staff of the
President (or a State Governor), he (or she) is, at best, in the
same category as a Personal Assistant, which itself is not
recognised under the Constitution: only the offices of Special
Advisers to the President and State Governors, are – by virtue of
Sections 151 and 196, respectively, of the
Constitution.

Is the Chief of Staff to the President (or a State Governor), a
Special Adviser to either of them? If he (or she) is not, then that
position would be alien to the 1999 Constitution, unless it can
fairly be interpreted as merely a means of exercising the executive
powers of the Federation, within the contemplation of
Section 5(1)(a) of the Constitution. This clause
permits the President to delegate such powers to, inter
alia, officers in the public service of the Federation. Alas,
the definition of such officers in Section 318(1) of the
Constitution excludes the Chief of Staff. Expressio
unius est exclusion alterius. To the extent that a
Constitutional power must be expressly conferred, otherwise it
cannot be exercised (ATT-GEN. OF BENDEL STATE vs. ATT-GEN.
OF THE FEDERATION (1981) 1FNLR 179), the irresistible
conclusion is that the office of the Chief of Staff to both the
President and State Governors is ultra vires, null, void
and unconstitutional.

Recommendations and Conclusion

In my opinion, the anomaly can be corrected by the
President/State Governors acting under Sections 148(1) and
193(1) of the Constitution to confer the functions of a
CoS on a Minister or State Commissioner, specifying clearly that he
or she is responsible for the day-to-day administration of the
State House or Government House, as the case may be.
 Alternatively, the Vice President and Deputy Governors of
States can also play that role which is equally envisaged and
indeed contemplated by the said provisions of the Constitution,
i.e., Sections 14(1) and 193(1). In my view, this option is
preferable.

Abubakar D. Sani, Esq.,
Kano

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