In an article titled “Is the Office of the Chief of Staff Constitutional?” which was published on The Nigeria Lawyer on the 5th of May, 2020, the author, Keulere Nabil Olarewaju,

after an examination of sections 5, 171 and 208 of the Constitution of the Federal Republic of Nigeria 1999 as amended (which we shall hereinafter refer to as CFRN 1999 as amended) concluded that “the office of the chief of staff is a constitutional office backed by the Constitution of the Federal Republic of Nigeria.

” This conclusion and the premises from which it flowed are founded on the author’s misapprehension of the relevant constitutional provisions. It is the purpose of this treatise to explode the argument and conclusion of the author in that piece. We shall proceed through a methodical analysis and refutation of each premise in the said article.

Mr.Keulere began his article by defining the term ‘Chief of Staff’. While we have no problem with his definition of the office, we must point out that his reference to section 171(2)(e) of the CFRN 1999 as amended creates the impression that his definition of ‘Chief of Staff’ enjoys constitutional validation. Section 171(2)(e) merely empowers the President to appoint a person or persons to any office on the personal staff of the President. While the Constitution does not define the term ‘personal staff of the President’, it is submitted that the expression can be taken to mean personal aides, of the President whose scope of duties are intimately connected with the personal comfort of the President.

The nature of their duties is such that they make the personal life of the President comfortable so that he can perform his official and constitutional functions with ease. Offices on the personal staff of the President include but are not limited to his Speechwriter, Chief Protocol Officer, Personal Physician, Principal Private Secretary and, of course, the Chief of Staff, who is the modern day equivalent of a chamberlain. While it is correct to say that a person who holds office as the Chief of Staff is a member of the personal staff of the President, it is important to note that the Constitution never created that specific office.

In his elucidation of the nature of the office of the Chief of Staff, the author attempted a definition of and, subsequently, distinction between ‘civil servant’ and ‘public servant’ and asserted magisterially that “it’s certainly clear that the chief of staff is a public servant and not a civil servant.” This assertion is not correct and it enjoys no constitutional backing. Section 318 of the CFRN 1999 as amended defines ‘civil service of the Federation’ as “service of the Federation in a civil capacity as staff of the office of the President, the Vice-President, a ministry or department of the Government of the Federation assigned with the responsibility for any business of the Government of the Federation.

” The ‘public service of the Federation’ is defined to mean “service of the Federation in any capacity in respect of the Government of the Federation, and includes service as…” Paragraphs (a) – (h) proceed to list out government agencies and departments that constitute the public service of the Federation. From these definitions, therefore, a ‘civil servant’ is a person who is employed in the civil service of the Federation or that of a State within the meaning of section 318.

A public servant is one who is employed in the public service of the Federation or that of a State. Civil servants and public servants are pensionable and come within the jurisdictional purview of the Public Service Rules and Regulations. This is against the argument of Mr. Keulere that public servants are not pensionable officials. The Chief of Staff is neither a civil servant nor a public servant.
A Chief of Staff, being someone who falls within the category of the class of appointees envisaged in section 171(2)(e) of the CFRN 1999 as amended, is a public officer or, in the quotidian expression of the Nigerian public, a political appointee. He is a public officer only because his remuneration and allowances are paid from public funds. Nothing cements this position harder than the provision of section 171(6) of the CFRN 1999 as amended which provides that “any appointment made pursuant to the paragraphs (a) and (e) of subsection (2) of this section shall be at the pleasure of the President and shall cease when the President ceases to hold office.”

“In general, a chief of staff provides a buffer between a chief executive and that executive’s direct-reporting team.” We disgree with this postulation. It is not the duty of any of the officers who fall within section 171(2)(e) of the CFRN 1999 as amended to act as a buffer between a chief executive and that executive’s direct-reporting team. This responsibility, we submit with the greatest respect, comes within the sphere of responsibility of the Secretary to the Government of the Federation. Nothing explains this better than the fact that in the civil service, there is a Permanent Secretary assigned to the office of the Secretary to the Government of the Federation who is in charge of the Cabinet Office. The Cabinet Office is the clearing house for all matters relating to the administration of the executive arm of government.

It appears, however, that the author’s misapprehension of the operation of the bureaucracy proceeded from the directive which was contained in the speech President Muhammadu Buhari delivered at the inauguration of the Ministers last year where he practically ordered the Ministers to direct every policy formulation and memorandum to the Chief of Staff. This directive was condemned by lawyers, bureaucrats, public administrators and policy makers. It is strange that the author, a legal pracctitioner, chose to make this clearly unconstitutional directive the foundation of his argument on the functionality of the office of the Chief of Staff.

The author, perhaps, in defence of the ill-fated trip of the late Chief of Staff, Abba Kyari, to Germany where he purportedly represented the President in a power deal with Siemens, claimed that “since the Constitution allows the president to exercise his duty either directly or through the vice-president, ministers or officers of the public service, the chief of staff therefore, can act for the president on his behalf on his order.

” The author’s constitutional authority for this claim is section 5(1)(a) of the CFRN 1999 as amended which states that “subject to the provisions of this Constitution, the executive powers of the Federation shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President or Ministers of the Government of the Federation or other officers in the public service of the Federation.” It is instructive to note that this section is made subject to the provisions of the Constitution.

Sections 141, 147, 151, 153, 169 and 171 expressly create respectively the office of the Vice-President, the Ministers, the Special Advisers, certain Federal Executive Bodies, the Civil Service of the Federation and empowers the President to make certain presidential appointments. We submit that ‘other officers in the public service of the Federation’ envisaged in section 5(1)(a) are officers within the contemplation of the definition of ‘public service of the Federation’ in section 318.

On the other hand, applying the ejusdem generis rule of statutory interpretation, ‘other officers in the public service of the Federation’ coming immediately after the specific mention of Vice-President and Ministers could be construed to mean Secretary to the Government of the Federation, Head of Civil Service of the Federation, Ambassador, High Commissioner, or other Principal Representative of Nigeria abroad, Permanent Secretary in any Ministry or Head of any Extra-Ministerial Department of the Government of the Federation howsoever designated and Special Advisers.
Since we have agreed that a Chief of Staff comes within the category of ‘any office on the personal staff of the President’, he could not have come within the class of officers contemplated in section 5(1)(a) to whom the President may delegate his executive powers; otherwise, his Personal Physician, Chief Press Secretary, Principal Private Secretary, Chief Protocol Officer, aide de camp (ADC), Chief Security Officer, personal chef and such other officers on his personal staff could also be considered potential delegates of presidential powers.

This, we submit with the greatest respect, is not the intention of that section. We will arrive at the same result if we apply the expressio unius est exclusio alterius principle of statutory interpretation as the express mention of Vice-President, Ministers and other officers in the public service of the Federation necessarily implies the exclusion of all other positions that are not covered in the definition of public service of the Federation in section 318.

“It’s of no doubt that the office is constitutional, although one may wonder that the Constitution didn’t provide for the office of the chief of staff rather a personal staff but the chief of staff is the superior staff of all the personal staff.” That was Mr. Keulere surmise, a surmise that is fraught with internal contradictions. His argument would have been tolerable if he had opined that the office of the Chief of Staff is not illegal or unlawful. Claiming that the office is constitutional and wondering in the same sentence why the Constitution did not provide for the office of the Chief of Staff defies all laws of logic. His summation is a conclusion that lacks syllogistic and synthetic cohesion.

This is Mr. Keulere Nabil Olarewaju’s peroration: “The office of the chief of staff is a constitutional office backed by the Constitution of the Federal Republic of Nigeria.” We submit, most humbly, that the office of the Chief of Staff is constitutional only to the extent that it falls within the perimeters of section 171(2)(e) of the CFRN 1999 as amended, to wit: any office on the personal staff of the President.

It is not an office which exercises executive powers and enjoys the visibility that the office of the Minister, Special Adviser, Secretary to the Government of the Federation, Head of Civil Service of the Federation, etc exercise and enjoy. The author, through an uncanny capacity, managed to approbate and reprobate simultaneously. His article is, therefore, misleading, inherently contradictory, a study in constitutional misapprehension, misconstruction and misstatements and does not represent the correct position of the law on the subject.

Ogbu, Blessing Ekpere Esq., a Legal Practitioner, writes in from Abuja., [email protected]