On 7 October 2026, the ECOWAS Court delivered a landmark judgment in the consolidated applications of Prof. Nazifi Abdullahi Darma v. The President of ECOWAS Commission and the Council of Ministers, ECOWAS (Application Nos. ECW/CCJ/APP/54/25 and ECW/CCJ/APP/64/25; Judgment No. ECW/CCJ/JUD/53/26).
Professor Darman was recommended by Nigeria for the office of the Commissioner for Internal Services at the ECOWAS Commission. This slot was allocated to Nigeria for the period of 2022 to 2026. Following a rigorous interview process, Prof. Nazifi Abdullahi Darma was appointment to that office by the ECOWAS Council of Ministers in line with the reviewed Treaty of ECOWAS, as amended by Supplementary Protocol A/SP. 1/06/06.
In the course of his tenure, Professor Darman had a disagreement with the then President of the Commission, Dr. Toare, over the legality of some actions taken by Dr. Toare, particularly, Professor Darman’s principled stance regarding the distribution of the functions of the Commissioner for Infrastructure, Energy and Digitalisation, which had been allocated to Niger but became vacate by the operation of law, when Niger exited ECOWAS.
Matters came to a head in October 2025, when, following Prof Darma’s complaint to the Council of Ministers, Dr. Toare issued a Memorandum dated 30th of October 2025, by which he purported to exercise disciplinary powers over Professor Darman by withdrawing the functions allocated to Professor Darman by the Revised Treaty (as amended) on the allegations of certain misconducts. The President acted on the misconception that the functions of Commissioners were delegated to them by him, notwithstanding that there is no support for such belief in any instrument of ECOWAS.
In fact, quite to the contrary, the Revised Treaty (as amended) and the Rules of Procedure of the Commission, expressly precluded the possibility of the President conceiving such a belief, let alone acting on it.
Professor Darman promptly brought a case against the President of the Commission in Prof. Nazifi Abdullahi Darma v the President of ECOWAS Commission, ECW/CCJ/APP/54/25, alongside an application for the indication of provisional measures and an application for expedited hearing. The Respondent filed a preliminary objection to vehemently object to the admissibility of the suit on the ground of non-exhaustion of administrative remedies prescribed by the ECOWAS Staff Regulations.
The Court heard arguments from the parties on 1st December 2025 and delivered its ruling on 10 December 2025 on all three applications. It refused to indicate provisional measures and refused expedited hearing but held that the case was admissible and adjourned for the merit hearing.
Despite the pendency of the matter before the Court, President of the Commission, the Council of Ministers and the Federal Republic of Nigeria took extraordinary steps to remove him and replace him with someone else between the 11th, 12th and 13th of December 2025. This led to the initiation of the second proceedings – Prof. Nazifi Abdullahi Darma v the Council of Ministers, ECOWAS, ECW/CCJ/APP/64/25.
In this second application, Prof Darma argued that his purported removal and replacement grossly violated the provisions of the Revised Treaty (as amended). He based his argument, among others, on article 18 of the Treaty which specifies the ground on which the tenure of a Commissioner may be truncated. These are dismissal by the Council of Ministers for serious misconduct, incapacity or resignation. Professor Darman argued that the Council of Ministers, the only organ upon which the power to dismiss him is vested, did not exercise that power in removing and replacing him as a Commissioner. This is because the only reason given for his replacement was that Nigeria had withdrawn him and nominated a replacement; and this was the argument trenchantly relied upon by the Respondent in defence of the case.
Subsequently, Professor Darman requested the then President of the Court to recuse himself from the case on grounds of likelihood of bias, given that it was the President of the Court, who was also presiding over the matter, that swore in Prof Darma’s successor only two days after the panel he presided over refused to indicate provisional measures.
The President recused himself and the panel was subsequently reconstituted for the Vice President of the Court to preside over the cases, which were subsequently consolidated.
At the merit hearing, the court formulated four issues, but this review focuses on the following two issues:
- Whether Memoranda Nos. ECW/Memo/15.09.25/ak and ECW/Memo/30.10.25/ak, and the measures taken pursuant thereto, were lawful under the Revised Treaty, as amended, the Rules of Procedure of the ECOWAS Commission and other applicable Community law; and
- Whether the recall, termination of Professor Darman’s tenure and subsequent appointment of his replacement before the expiry of his stipulated term were undertaken in accordance with the Revised Treaty, as amended, and other applicable Community Law.
Whether Memoranda Nos. ECW/Memo/15.09.25/ak and ECW/Memo/30.10.25/ak, and the measures taken pursuant thereto, were lawful under the Revised Treaty, as amended, the Rules of Procedure of the ECOWAS Commission and other applicable Community Law.
On this issue, the Court had no difficulties at all holding that the impugned Memorandum violated all applicable legal instruments of ECOWAS. The Court viewed the Memorandum in light of the arrogation of a power reserved to a superior organ by an inferior organ in the hierarchical structure of ECOWAS. Accordingly:
The Court is aware that this dispute must be resolved primarily by reference to the Community’s constituent instruments. The ECOWAS Commission is a principal institution established under Article 17 of the Revised Treaty, as amended, and the appointment, status, tenure and functions of its President, Vice-President and Commissioners derive from the Treaty and instruments lawfully adopted pursuant to it. Subordinate administrative instruments cannot enlarge, diminish or alter powers conferred or circumscribed by those constituent instruments. (paragraph 111).
This reasoning reflects the argument we strongly put before the Court both in our written and oral argument before the Court. We were convinced that it was inconceivable that the President of the Commission could rewrite legislative instruments made by the Authority of Heads of States and Governments (the Revised Treaty); and Regulations made by the Council of Ministers (the Rules of Procedure of the Commission) when neither the Revised Treaty nor any instrument of the Community grants him such competence.
Having needfully affirmed that principle, the Court proceeded to examine the substance of the impugned Memorandum to determine whether, and to what extent, the President of the Commission could administratively restrict the functions of a commissioner.
On this score, the Court distinguished between functions conferred upon the statutory office of commissioners by the Treaty; the Rules of Procedure or another binding Community Act, and administrative, operational or financial authority delegated by the President in the exercise of powers vested in him. The Court affirmed that only the latter can ordinarily be modified or withdrawn by the delegating authority; but that the former stands on a different footing and cannot be extinguished or transferred to another official merely by administrative arrangement. (Paragraph 112).
The Court therefore located the issue within two principles. The first being that administrative authority cannot be used to transfer or extinguish a competence which Community law has vested in a particular statutory Office; and the second being that the legality of an administrative measure falls to be determined by its substance, legal basis and practical effect, rather than solely by the designation given to it. (paragraph 114)
On these bases, the Court held that it was in principle within the President’s competence to, by memorandum withdraw powers genuinely delegated by him, but that such could not operate to extinguish functions which the Treaty, the Rules of Procedure or another binding Community Act independently attached to Professor Darman’s statutory office. (paragraph 125).
On the substance of the Memorandum, we had urged the Court to view the content, drawing by analogy from the Staff Regulations, as a disciplinary measure, while the Respondent firmly argued that it was a mere administrative act without any disciplinary character.
This distinction was important because an acceptance by the Court that it constituted a disciplinary measure invariably establishes a violation of the relevant Community laws without more, given that the President would have acted ultra vires to exercise disciplinary powers vested solely on the Council of Ministers by the Treaty. In addition, if it is a disciplinary measure, the safeguards of fair hearing will engaged, and given that Prof Darma was not afforded any form of opportunity to be heard before and even after the damaging Memorandum was issued, the Memorandum will therefore fail the scrutiny of lawfulness on that ground, also.
The Court rejected the argument that the Respondent’s memorandum was purely administrative and therefore attracting no disciplinary safeguards. Noting that “the memorandum attributed to Professor Darman persistent insubordination, an uncooperative attitude, failure to discharge assigned responsibilities, hostility and abuse towards staff and statutory officials, abuse of authority and disruption of the functioning of the Commission”, the Court agreed with us that those were adverse allegations concerning Prof Darma’s personal conduct and professional performance. The Court specifically noted that the allegations were relied upon in the same instrument which withdrew his authority and recorded that Steps had been taken to secure his withdrawal and replacement. (Paragraph 126).
Accordingly:
The court reasoned that “the memorandum of 30th October must therefore be considered in its proper context. The legally relevant sequence begins with that memorandum and continues through the request for Professor Darman’s withdrawal and replacement, the response of his nominating Member State, the nomination of a successor and the eventual decision affecting his tenure.” (Paragraph 128)
Furthermore,
the Court took the view that once allegations concerning Professor Darman’s conduct and performance were relied upon as grounds for substantially withdrawing his authority and initiating a process for his replacement, procedural fairness required that he be given sufficient notice of the material allegations and an effective opportunity to respond before those allegations produced adverse consequences. (Paragraph 132)
To come to this conclusion, the Court agreed with our argument that, although the Staff Regulations does not regulate the conduct of statutory appointees, the parts defining disciplinary conducts and safeguards are applicable by analogy. (Paragraph 133).
The court affirmed that:
“Where Community law regulates the appointment, functions, tenure and independence of an officeholder, administrative powers must be exercised consistently with that legal framework. The proper construction therefore gives effect to both principles. The President possesses broad authority to direct and coordinate the Commission, to allocate responsibilities falling within his competence and to modify or Withdraw authority lawfully delegated by him. That authority does not permit him to transfer or extinguish competences which Community law independently attaches to another statutory office, nor does it dispense with procedural fairness where adverse measures are founded upon allegations of misconduct or deficient performance”. (Paragraphs 137- 138)
Applying this to the issue, the Court held “Memorandum no. ECW/Memo/30.10.25/ak was procedurally unlawful insofar as adverse allegations concerning Professor Darman’s conduct and performance were relied upon to withdraw his substantive responsibilities and initiate the process for his replacement without prior notice and an effective opportunity to respond”. (Paragraph 140)
Whether the recall, termination of Professor Darman’s tenure and subsequent appointment of his replacement before the expiry of his stipulated term were undertaken in accordance with the Revised Treaty, as amended, and other applicable Community law.
On this, the Court began by noting the Respondents’ argument that the Respondents did not dismiss Professor Darman, but that Nigeria exercised its sovereign prerogative to recall him and nominated a replacement, whereupon the Council of Ministers, acting within its competence, formalised that replacement. They contend that the resulting cessation of Professor Darman’s tenure was therefore lawful and distinct from the administrative measures considered under the first issue discussed above. (Paragraph 142).
In appraising this contention, the Court noted that:
“Under that scheme, nomination and appointment are distinct juridical acts. A Member State participates by nominating a candidate for a statutory position allocated to it. The appointment itself is made by the competent Community organ pursuant to Community law. The distinction is reflected in Community practice, under which Commissioners are appointed by Regulation of the Council for a specified non-renewable term. Once appointed, the officeholder derives his mandate from the Community legal order rather than from the continuing authority of the nominating state”. (Paragraph 144).
Based on this, the Court took the view that the power of nomination cannot, in the absence of an express or necessarily implied provision of the Treaty be converted into an autonomous power of removal. The Court affirmed that this principle is one of “institutional competence: a power conferred by Community law must be exercised by the institution upon which the constituent instrument has vested it”. (Paragraph 146).
The Court had no difficulties declaring that a unilateral recall by the nominating member State is not identified as an autonomous mode by which the statutory appointment is ended, and that its description as an exercise of sovereign authority does not alter that conclusion.
The Court declared accordingly, that:
“Member States retain their sovereignty, but in establishing the Community they conferred defined powers upon its institutions and agreed that matters governed by the constituent instruments would be determined in accordance with Community law. A national act may initiate or inform the institutional process; it cannot by itself produce a legal consequence which the Treaty reserves to a community institution. Nigeria’s communication could therefore constitute a request for Professor Darman’s withdrawal or express the position of his nominating State. It could also nominate a successor for consideration should a vacancy lawfully exist. It could not, without the exercise of the competence prescribed by Article 18, terminate Professor Darman’s existing Community mandate”. (Paragraph 148).
The dilemma that confronted the Respondents was summarised by the Court thus: if the adverse allegations recorded in the memorandum of 30th October 2025 were not relied upon as grounds for dismissal, the Respondents must identify some other mode of premature cessation recognised by article 18, given that national recall does not supply such a mode. If, on the other hand, those allegations constituted the substantive basis for ending Professor Darman’s tenure, the procedural requirements associated with an adverse termination could not be avoided by characterising the intervening national recall as the juridical cause of the vacancy. (Paragraph 154).
The Court noted that there is no evidence before it showing a prior decision by the competent Community organ, taken in accordance with Article 18, which lawfully terminated Professor Darman’s mandate before the appointment of his successor. Rather, that what the evidence discloses is a national recall followed by the nomination and formalisation 0f a replacement. That sequence, in the firm view of the Court, did not establish that the antecedent vacancy required by Community law had lawfully arisen. (paragraph 155).
The Court reasoned that, based on Community law, the appointment of a replacement for the remainder of an existing term, necessarily presupposes a vacancy, the vacancy must precede the replacement and must arise in a manner recognised by the constituent instruments. Therefore, that the nomination or appointment 0f a successor cannot itself retrospectively create the vacancy upon which its legality depends. (paragraph 156)
Affirming the material legal distinction between a decision lawfully terminating the incumbent’s mandate and thereby creating a vacancy, and a decision appointing another person on the assumption that a national recall had already produced that result, the court noted that the Council’s competence to appoint Professor Darman’s successor did not cure the anteriordefect in that article 18 does not permit the latter to substitute for the former. (paragraph 157)
Being mindful that allowing the illegality to stand would allow the conditions governing premature termination to be displaced whenever the nominating member State requested a replacement, the Court held that no vacancy was created; and that t0 hold otherwise would materially weaken both the fixed tenure established by the Treaty and the independence which Article 18 requires member States to respect. (Paragraph 157)
In conclusion, the Court agreed with our argument that the entire charade performed by the trio – the then President of the Commission, the Council of Ministers and the Federal Republic of Nigeria – was unlawful. According to the Court “the premature cessation of Professor Darman’s statutory tenure and the appointment of his replacement before the expiry of his stipulated four-year term were not effected in accordance with Article 18 of the Revised Treaty, as amended, and were therefore unlawful.” Paragraph 167.
On reparation, the Court ordered the Respondents to pay the Professor Drama:
• all proven outstanding salaries, allowances and other accrued and ascertainable financial entitlements from the effective date of the unlawful premature cessation of his tenure until the end thereof, less amounts proved to have been paid (Orders xi and xii);
• US$50,000 (Fifty Thousand United States Dollars) as general damages for the non-pecuniary injury resulting from the procedural unlawfulness and the premature cessation of his tenure (Order xiv); and
• his reasonable costs of the proceedings, to be assessed by the Chief Registrar (Order xvii).
It is important to note that the Court considered the plea for reinstatement but could not, and rightly too, grant it because as of the date of the judgment, Prof Darman’s tenure had expired and the position of the Commissioner for Internal Services had been allocated to another member State. The Court was therefore correct to hold that it was neither practicable nor appropriate to reinstate him. (Paragraph 190)
Conclusion
This case is instructive and consolidates the institutional integrity and independence of ECOWAS institutions in many ways. In terms of the principles it established and affirmed, there has been none like it and there is unlikely to be any like it in many years to come.
The consolidated applications of Professor Darma is a leading authority on several important constitutional issues in the ECOWAS legal order, and the writer is glad to have been part of this history-making applications, being the lead counsel that drafted the applications and argued the applications.
In the first place, by the ruling of 10th December 2025 in Prof. Nazifi Abdullahi Darma v. President of ECOWAS Commission, Application No. ECW/CCJ/APP/54/25. Ruling No ECW/CCJ/RUL/05/25, the Court established that statutory appointees are not staff of the ECOWAS Commission for the purpose of applying the principle of exhaustion in the Staff Regulations as an admissibility criterion. Before that Ruling, the state of the law was unclear. In fact, it was generally believed that the Staff Regulations applied to statutory appointees.
The Court took this a bit further in the merit judgement by affirming our argument that some provisions of the Staff Regulations apply to statutory appointees by analogy only. This is in paragraphs 132 and 133 of the judgement, where the Court used relevant provisions of the Staff Regulations to support its finding that the language of the memorandum of 30th October 2025 constituted it into a disciplinary measure for which Professor Darman ought to have had the benefit of fair hearing.
The decision on the merit of the applications established two fundamental principles: the first is that ECOWAS commissioners do not hold office at the pleasure of the president of the Commission, his supervisory powers, notwithstanding. The president’s supervisory powers do not extend to the authority to exercise disciplinary powers against a commission, nor does it extend to empowering the president to withdraw or restrict functions donated to other commissioners by the Revised Treaty in the misconception that the powers exercised by commissioners were delegated by him/her and thus liable to be withdrawn by him.
It is worthy of note that the Court was mindful of the constitutional implications of its judgment, hence it consciously did the balancing act by clarifying the scope of the principles it weas laying down. On this, two prominent examples stand out.
The first is where, in holding that the president lacked the power to withdraw the statutory functions of a statutory appointee, the Court made it clear that, within limits, the President retains supervisory oversight over commissioners and that they remain under his/her administrative authority. (Paragraphs 137 and 138). It was necessary for the Court circumscribe its decision in this manner so that the power of coordination intended to be exercised by the president within defined limits is not eroded.
Also, in holding that Commissioners are entitled to enjoy their fixed term uninterrupted, the Court made it clear that the immutability of fixed tenure does not confer immunity from accountability: it requires that accountability be exercised by the competent authority, upon a legally recognised ground and in accordance with the applicable procedure. (Paragraphs 157 and 167). Here, the Court was basically making it clear that the decision is not a cover for commissioners to misbehave as they remain amenable to discipline and possible removal upon observance of due process.
Beyond the immediate parties, however, the judgment raises serious issues regarding the validity of the official acts performed by the individual that Nigeria nominated to replace Professor Darma. The necessary implication of the definitive decision of the Court that there existed no vacuum to be filed and that Professor Darman remained in office until the end of his tenure, is that all the acts performed by the person who replaced him, including the salaries and emoluments he received are not legally justifiable.
Although the court could not have made any consequential order in this regard, the Commission is entitled to take the consequential steps to recover every payment made to him and or to account to the citizens of the Community for paying two people for the same position, should it decide not to recover the money.
I conclude by paying tribute to the lawyers who worked assiduously with me on the applications. These are Mallam Mohammed S. Shuaib, Esq, Michael Agbo, Esq, and Huwaila M Ibrahim, esq. I also pay tribute to Orimogunje Samuel, Oluboyo Olumide and Mercy Olatayo for their excellent research assistance.