Why office of chief of staff is unconstitutional

News that President Buhari has directed his new cabinet to report to him through his Chief of Staff, 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 the 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 Nigerian State House website, 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:
“Coordinating the activities of all Principal Staff Officers of the President C-IN-C;
Conveyance of all directives and decisions of the President, C-in-C to the SGF, CDS, members and other top functionaries of Government;
Formation of ad-hoc bodies as well as stipulating their terms of reference in conjunction with the SGF;
Chairing of meetings of Principal Staff Officers to the President, C-in-C;
Monitoring and Coordinating the day-to-day activities of the President, C-in-C;

Clearance of all official military and civil matters as well as preparation of executive summaries on official issues;
Arrangement of all official appointments and engagements of the President, in conjunction with SCOP and ADC to the C-in-C;
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;

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;
Attendance of National Defence and Security Council meetings;

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;
Serving as a link between the President, C-in-C and the Service Headquarters;
Vetting of all draft speeches for the President, C-in-C in respect of service functions;
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;
Ensuring that any document being forwarded to the President, C-in-C is in suitable condition, technically and substantively for Presidential review and action;

Maintenance and control of the President, C-in-C’s projects and welfare accounts;
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 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 (or a State), within the contemplation of Section 5(1)(a) and 5(2)(a), respectively, of the Constitution. These clauses permit the President and State Governors to delegate their powers to, inter alia, officers in the public service of the Federation or of the State, as the case may be. Unfortunately, the definition of such officers in Section 318(1) of the Constitution excludes the Chief of Staff.

The relevant canon of interpretation is expressio unius est exclusio alterius. To the extent that a specific constitutional power cannot be validly exercised unless it is expressly conferred (ATT-GEN. OF BENDEL STATE vs. ATT-GEN. OF THE FEDERATION (1981) 1FNLR 179), I humbly posit that the office of the Chief of Staff to both the President and State Governors is ultra vires and unconstitutional.
Correcting the anomaly

In my opinion, Sections 148(1) and 193(1) of the Constitution provide a surprisingly handy solution. They provide that the executive powers of the Federation or the States shall be exercised directly by the President/Governors or through the Vice-President/Deputy Governors, Ministers/Commissioners or officers in the public services of the Federation/State, respectively. In other words, the President and State Governors can simply confer the functions of a CoS on the Vice-President/Deputy Governors, a Minister or Commissioner, stating 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.
Sani, a lawyer writes from Kano.