The appointment of the current Speaker of the House of Representatives, Mr Femi Gbajabiamila, as the Chief of Staff to the President by Mr Bola Tinubu is a constitutional aberration.
Nigeria operates a constitutional democracy based on the principle of separation of powers. Sections 4, 5 and 6 of the 1999 Constitution vest the legislative, executive and judicial powers of the Federation in the National Assembly, President and established Courts respectively.
The principle of separation of powers under our constitutional framework applies both to functions and personnel of the different organs of government. The intention of the framers of the Constitution was to give each arm independence from the other arms of government.
It is a travesty of this principle, for Gbajabiamila’s appointment as Tinubu’s Chief of Staff to be announced without him first resigning not only his speakership position, but also his membership of the House of Representatives.
The position of Chief of Staff to the President is not a trivial position. It is a very significant executive position. By virtue of 68 of the Constitution, it is forbidden for a member of the National Assembly to occupy executive position while still a legislator.
Section 68 of the Constitution further provides that a member of the National Assembly shall cease to be a member, if circumstances arises which would have disqualified such a member, had it arisen at the time of the election. This appointment is such a circumstance.
Section 68 of the Constitution further provides that a member of the National Assembly shall cease to be a member, if circumstances arises which would have disqualified such a member, had it arisen at the time of the election. This appointment is such a circumstance.
The relevant question is: if Gbajabiamila was the Chief of Staff to former President Buhari, would he have been qualified to seek re-election as a member of the National Assembly without first resigning his appointment as mandated by Section 84(12) of the Electoral Act, 2022.
The answer is obviously in the negative. The attempt to strike-down Section 84(12) was defeated at the Supreme Court.
Also, the Code of Conduct for Public Officers under Part 1 of the Fifth Schedule to the Constitution forbids a public officer from enjoying double emoluments.
The fact that the tenure of the current National Assembly will elapse in a few days time, does not lessen the controversial character of this appointment. Gbajabiamila’s appointment has trivialized the status of the National Assembly as a separate arm of government.
As a legal practitioner, he ought to know the implications of his conflicting dual roles on our nation’s nascent democracy and constitutional order. His acceptance to serve two masters in this circumstance has eroded whatever was left of the independence of the National Assembly.
I have however noted that Gbajabiamila in his acceptance statement on his social media accounts, indicated that his appointment will take effect on June 14, 2023; a day after the inauguration of the 10th National Assembly.
It would have been tidier for the appointment not to be announced until he has vacated his position as Speaker of the House of Representatives in order to preserve the institutional integrity of the National Assembly as a separate arm of government.
If urgent national issues arises that requires the National Assembly to assert its independence, and call the Executive to order, can the Speaker discharge his functions effectively and independently given his conflicting positions following his appointment as Chief of Staff?
The fact that the appointment has not yet taken effect does not extinguish the appointment or render the instrument of appointment (letter of appointment) void. It only means that he’ll begin to perform the factions of his new position at a later date. But he has been appointed.
Inibehe Effiong, ESQ.
