Eshiozemhe Emmanuel*
INTRODUCTION
The case of Prof. Nazifi Abdullahi Darma v. President of the ECOWAS Commission highlights a major institutional dispute involving administrative measures against a Commissioner. The Applicant challenged the legality of memoranda revoking his functions, claiming they were ultra vires, retaliatory, and contrary to ECOWAS rules. The dispute concerns power distribution, the status and independence of Commissioners, and fair geographical representation. It raises broader issues about the scope of the President’s authority, dispute resolution mechanisms, and the Court’s jurisdiction. The Applicant’s request for provisional measures also tests the conditions for interim judicial intervention. This analysis reviews the background, arguments, and Court’s reasoning on provisional measures, jurisdiction, admissibility, and internal remedies, offering guidance on institutional legality and oversight within ECOWAS.
FACTS
The Applicant, Prof. Nazifi Abdullahi Darma, is an official of ECOWAS and a Nigerian citizen. He commenced proceedings against the President of the ECOWAS Commission, challenging the legality of administrative actions taken by the Respondent, which, according to him, is an abuse of office, unlawful, ultra vires, retaliatory, and in violation of ECOWAS. His claims stem from the President’s unilateral assignment of statutory functions reserved exclusively for Commissioners to his personal appointee from The Gambia, contrary to the governance architecture established by the Revised Treaty and the requirement of equitable geographical distribution of statutory posts.
According to the Applicant, the President improperly assigned statutory functions reserved by the ECOWAS Revised Treaty to Commissioners to a personal appointee from The Gambia, thereby violating the Treaty framework governing the structure, powers, and geographical balance of the Commission. The Applicant states that he objected to this action in the discharge of his oath of office, regarding it as a usurpation of powers and an illegality, and reported the matter to the appropriate authorities.
The Applicant alleges that his objection triggered a pattern of retaliation by the President. This culminated on 30 October 2025, when the President issued Memo ECW/Memo/30.10.25/ak, which purported to revoke all the Applicant’s statutory powers as Commissioner for Internal Services and to reassign those functions to the President himself. The memo accused the Applicant of insubordination, incompetence, abuse of authority, and hostility towards staff and senior officials. The Applicant contends that these allegations were never communicated to him before the memo, were not investigated, and were not subjected to any disciplinary or administrative procedure recognised under ECOWAS law.
The Applicant characterises the President’s actions as ultra vires, taken in bad faith, and motivated by the objective of legitimising the unlawful elevation of a non-statutory appointee into a position performing the functions of a Commissioner. The memo was circulated widely to senior ECOWAS officials, Member State authorities, and heads of institutions, thereby causing serious reputational, professional, and personal harm. He states that no query was issued, no hearing was conducted, and no inquiry was instituted, and that the allegations have not been substantiated or referred to the Council of Ministers as required by the ECOWAS legal framework. He contends that these rights are protected under the African Charter on Human and Peoples’ Rights and are enforceable against ECOWAS institutions before the Court.
In support of his claims, the Applicant relies on the ECOWAS Revised Treaty (as amended); the ECOWAS Supplementary Protocol A/SP.1/06/06; the 2005 Supplementary Protocol on the ECOWAS Court; the Rules of Procedure of the ECOWAS Commission; the African Charter on Human and Peoples’ Rights; the ECOWAS Supplementary Act on Personal Data Protection (A/SA.1/01/10); and the ECOWAS Staff Regulations, by analogy.
The Applicant seeks multiple declaratory, injunctive, and compensatory reliefs, including declarations that the impugned memos (particularly ECW/Memo/30.10.25/ak and ECW/Memo/15.09.25/ak) are inconsistent with the ECOWAS Revised Treaty and Commission rules, unlawful, and null and void.
He further seeks orders nullifying all actions taken pursuant to those memos, restraining the President from further interference with his statutory duties as Commissioner, directing payment of all withheld emoluments and consequential financial losses, and awarding USD 20 million as special and general damages for alleged pain, suffering, reputational harm, and violations of fair hearing, privacy, and dignity. He also seeks costs and any further orders the Court may deem appropriate.
The Respondent, in response, acknowledges that the Applicant, Mr Nazifi Abdullahi Darma, has instituted proceedings before the ECOWAS Court seeking the annulment of Memorandum ECW/Memo/30.10.25/ak issued on 30 October 2025 by the President of the ECOWAS Commission.
The Respondent’s case is primarily premised on a preliminary objection of inadmissibility, grounded on the Applicant’s alleged failure to exhaust internal dispute-resolution mechanisms prescribed under the ECOWAS Staff Regulations.
The Respondent affirms that the Applicant is a statutory appointee of ECOWAS and, pursuant to Article 3(37) of the ECOWAS Staff Regulations, qualifies as “staff” of the Community. On this basis, the Respondent contends that the Staff Regulations, including Articles 3, 69, and 70, apply fully to the Applicant.
The Respondent relied heavily on Chapter XIV of the Staff Regulations, which establishes a comprehensive internal dispute-resolution framework governing disputes between ECOWAS staff members and the Institution. According to the Respondent, this framework is mandatory and constitutes the first avenue for challenging administrative decisions affecting staff.
Relying specifically on Article 69(2), the Respondent argues that staff members have a right and corresponding obligation to pursue internal administrative appeals. Further reliance is placed on Article 70, which states that the Applicant ought to have referred the dispute to the Inter-Institutional Appeals Committee first. This is because Article 70 provides that decisions of the President of the Commission may be appealed to the ECOWAS Court only after the Inter-Institutional Appeals Committee has issued its final decision.
The Respondent asserts that the Applicant filed the present action on 3 November 2025, only a few days after the issuance of the impugned memorandum, without invoking or exhausting any of the internal appeal mechanisms provided under the Staff Regulations.
The Respondent rejects any suggestion that the Applicant’s status as a Commissioner exempts him from the application of the Staff Regulations. It argues that the Staff Regulations are acts of general application adopted by the Council of Ministers; they apply to all categories of ECOWAS staff, including statutory appointees; their applicability was reaffirmed by Council Regulation updating the Staff Regulations on 10 December 2021. On this basis, the Respondent contends that compliance with the internal dispute-resolution procedure is a mandatory precondition to seizing the ECOWAS Court.
The Respondent therefore urges the Court to declare the application inadmissible, on the ground that the Applicant failed to exhaust internal remedies as required by the Staff Regulations. In the alternative, should the Court proceed to consider the merits, the Respondent maintains that Memo ECW/Memo/30.10.25/ak falls within the lawful prerogatives of the President of the Commission; the memo constitutes a revocation of delegation of authority, not a disciplinary measure; the memo does not amount to an attack on the Applicant’s reputation, nor does it violate his personal data; Memo ECW/Memo/15.10.25/ak supervising the Department of Infrastructure, Energy and Digitalization is lawful; the impugned actions do not breach the principle of geographical balance, nor do they allocate an additional Commissioner position to The Gambia. The Respondent contends that the alleged violations have not been proven and that the Applicant’s claims are ill-founded.
The Applicant argued that the case required urgent judicial intervention because the President of the ECOWAS Commission was allegedly taking imminent and unilateral steps to strip him of his statutory functions as Commissioner for Internal Services, without following the procedures laid down in the ECOWAS Revised Treaty, including referral to the Council of Ministers or the Authority of Heads of State and Government.
He contended that the Respondent’s actions amounted to a continuing abuse of power and ultra vires conduct, which, if not restrained promptly, would cause ongoing prejudice to him and undermine institutional legality within ECOWAS. He further submitted that an early ruling was necessary to protect his human rights, preserve the institutional balance within the Commission, and prevent the reliefs sought from becoming nugatory through delay.
On this basis, the Applicant sought interim restraining orders to halt any further implementation of Memo ECW/Memo/30.10.25/ak and Memo ECW/Memo/15.09.25/ak, to prevent further interference with his statutory functions, and to restrain any individual from exercising powers reserved exclusively for Commissioners pending the final determination of the case. The Respondent did not file or advance a response to the application for interim measures as moved by the Applicant.
RULING
The Court held that the interim reliefs sought fell within the scope of provisional measures under Article 21 of the Court’s 1991 Protocol as amended by the Supplementary Protocol of 2005, and Articles 79–81 of the Rules of Court. It reaffirmed that provisional measures are exceptional and discretionary, and that an applicant must satisfy three cumulative conditions: a situation of urgency; a risk of irreparable harm if the measures are not granted; and the existence of a prima facie case. The Court reiterated that failure to establish any one of these conditions is fatal to an application for provisional measures.
The Court found that the Applicant had satisfied the prima facie threshold. It held that his claims relating to alleged violations of due process, statutory independence as a Commissioner, and the exclusive competence of the Council of Ministers in matters concerning removal were grounded in the ECOWAS Revised Treaty and relevant institutional instruments. On their face, the claims raised issues within the Court’s jurisdiction and were not manifestly ill-founded.
The Court also found that the requirement of urgency was met. It noted that the Respondent had taken concrete steps toward the Applicant’s removal, including his suspension, the initiation of a removal process, and a formal request to the Applicant’s home State to withdraw and replace him. These actions, taken together, created a real and imminent risk of alteration of the status quo before the Court could rule on the merits.
However, the Court held that the Applicant failed to establish irreparable harm. It reasoned that although removal from office is serious, it is not inherently irreparable, as the Court possesses broad remedial powers at the merits stage, including the ability to order reinstatement and award compensation. Relying on its prior jurisprudence, the Court concluded that any harm resulting from the Applicant’s potential removal could be adequately remedied through a final judgment. Since irreparable harm was not established, the cumulative conditions for provisional measures were not satisfied. Accordingly, the application for interim measures was dismissed.
In relation to the request for an expedited procedure, the Court reiterated that accelerated proceedings under Article 59 of the Rules are exceptional and justified only where delay would render the eventual judgment ineffective or deprive a party of meaningful relief.
Applying the same reasoning as in its analysis of provisional measures, the Court held that the Applicant had not demonstrated irreparable prejudice warranting departure from the ordinary procedural timelines. Since adequate redress would remain available even if the Applicant were removed before judgment, the Court found no justification for expedited treatment. The application for expedited hearing was therefore also dismissed.
On Jurisdiction, the Court began by reaffirming that jurisdiction is a fundamental prerequisite which it must examine proprio motu before considering admissibility or the merits. This duty flows from Article 9 of Protocol A/P1/7/91, as amended. The Applicant relied on multiple heads of jurisdiction under Article 9. The Court therefore examined each relevant provision separately.
In Article 9(1)(e), the Court acknowledged that Article 9(1)(e) empowers it to interpret and apply the ECOWAS Treaty, Protocols, Regulations, Directives, and Decisions. However, it held that individuals do not have standing to invoke Article 9(1)(e) directly, as access under that head is not provided for in Article 10 of the Protocol. The Court reiterated its settled position that individuals cannot seize the Court solely to obtain abstract interpretations of Community law. Accordingly, Article 9(1)(e) could not ground jurisdiction in this case.
The Court held that Article 9(1)(f) applies. It found that Commissioners are classified as Statutory Appointees and staff of the Community under the ECOWAS Staff Regulations, and therefore qualify as “Community officials” for the Protocol. The dispute arose directly from the Applicant’s employment relationship with ECOWAS, including the deprivation and reassignment of statutory functions, the issuance and circulation of administrative memoranda, and alleged interference with his independence, dignity, and tenure. Such disputes, the Court held, fall squarely within disputes between the Community and its officials and are justiciable under Article 9(1)(f).
The Court further held that Article 9(1)(g) applies, as the Applicant seeks damages arising from memoranda issued by the President of the Commission in the exercise of official functions. The Court reiterated its jurisprudence that where official acts allegedly cause reputational, administrative, or financial harm to a staff member, the Court has jurisdiction to entertain claims for damages under this provision.
The Court rejected the applicability of Article 9(2). It held that non-contractual liability applies only where there is no contractual relationship between the claimant and the Community. Since the Applicant is a statutory appointee bound by an employment relationship with ECOWAS, the dispute falls within the contractual employment framework, not non-contractual liability. Article 9(2) was therefore inapplicable
The Court concluded that it has full jurisdiction under Articles 9(1)(f) and 9(1)(g). It further noted that the Applicant had pleaded human-rights violations, which ordinarily activate the Court’s autonomous human-rights jurisdiction. However, the admissibility of those claims required separate examination.
The Court proceeded to examine admissibility under Article 10 of the Supplementary Protocol, distinguishing it from jurisdiction. The Court held that the Applicant, as a Commissioner and statutory appointee, qualifies as a Community official and therefore has standing under Article 10(c) to challenge acts or omissions of Community officials allegedly violating his rights.
The Respondent raised a preliminary objection, arguing that the application was inadmissible because the Applicant failed to exhaust internal remedies under Articles 69 and 70 of the ECOWAS Staff Regulations. The Court rejected this objection. It held that the exhaustion requirement must be interpreted teleologically, taking into account the nature of the Applicant’s office, the author of the impugned act, and the availability and effectiveness of internal review mechanisms.
The Court found that the impugned acts emanated directly from the President of the Commission, who has no hierarchical superior; disciplinary authority over Commissioners lies exclusively with the Council of Ministers, not the President; the internal mechanisms under Articles 69–70 are not designed to review interlocutory deprivation of a Commissioner’s statutory mandate; and, no effective or available internal remedy existed in the circumstances. Accordingly, the Court held that the exhaustion requirement was either satisfied or inapplicable, and that requiring exhaustion in these circumstances would defeat the principle of effet utile (practical effect).
The preliminary objection on admissibility was therefore overruled, and the application declared admissible. Notwithstanding the above, the Court declared that claims founded on the African Charter on Human and Peoples’ Rights were inadmissible. It held that only ECOWAS Member States, as signatories to the Charter, may be sued for Charter violations. ECOWAS institutions, including the Commission, are not proper respondents for Charter-based claims.
CONCLUSION
The ruling in Prof. Nazifi Abdullahi Darma v. President of the ECOWAS Commission exemplifies a balanced exercise of judicial authority by the ECOWAS Community Court of Justice. Although the Court declined to grant provisional measures and an expedited hearing, it did so on narrowly defined procedural grounds, finding that the Applicant failed to demonstrate irreparable harm, despite meeting the requirements of urgency and establishing a prima facie case. This affirms the Court’s established stance that interim relief is exceptional and contingent upon strict cumulative conditions. Furthermore, the Court reaffirmed its jurisdiction over disputes between the Community and its officials under Articles 9(1)(f) and 9(1)(g) of the Protocol, and dismissed the Respondent’s objection based on the failure to exhaust internal remedies. Through adopting a purposive interpretation of the Staff Regulations, the Court acknowledged the distinctive constitutional status of Commissioners and the limited efficacy of internal mechanisms in reviewing acts of the President of the Commission. Concurrently, the Court reaffirmed the doctrinal boundary of its human rights jurisdiction by declaring Charter-based claims against ECOWAS institutions inadmissible. Overall, the ruling enhances legal accountability within ECOWAS, whilst maintaining institutional stability, and establishes a clear foundation for the substantive adjudication of the dispute on the merits.
*Eshiozemhe Emmanuel is a First Class Law graduate from faculty of law, University of Benin, Edo State Nigeria.