Eshiozemhe Emmanuel*
INTRODUCTION
The Kassoum Coulibaly v. ECOWAS case clarifies employment status for ECOWAS contract staff, internal discretion, and military affiliation impacts in civil service. The applicant, a Burkina Faso military officer, challenged the refusal to convert his contract to permanent, citing Council recommendations and human rights violations under the African Charter. The case clarifies legal status of Council recommendations, conditions for contract conversion, and loyalty principles. It also explores military status versus permanent employment in international organizations, relevant beyond ECOWAS. This review covers facts, issues, jurisdiction, and Court reasoning, situating the judgment within ECOWAS jurisprudence on staff and administrative accountability, and its impact on employment practices.
FACTS
The Applicant, Kassoum Coulibaly Kassoum, is a Community citizen from Burkina Faso, Ouagadougou. He is a Senior Officer of the Army who served with the Department of Political Affairs, Peace and Security at the ECOWAS Commission as a contract staff between 2018 and 2022. The claim is an administrative one bordering on the alleged failure by the Respondent (ECOWAS Commission) to regularise his employment status from contract to permanent, in accordance with the recommendations contained in the Report of the 83rd Ordinary Session of the Council of Ministers of 19th December 2019. Furthermore, the Applicant is claiming lost wages for the contract period. In particular, the Applicant contended that the actions of the ECOWAS Commission were unlawful, unjust, and inconsistent with obligations imposed by the African Charter on Human and Peoples’ Rights. He argued that the Commission’s conduct amounted to a denial of fundamental rights and sought declaratory relief affirming such violations, as well as monetary compensation for the harm allegedly suffered.
The ECOWAS Commission, in response, acknowledges that the Applicant worked within its Department of Political Affairs, Peace and Security (PAPS), but maintains that his engagement was strictly contractual and project-based, funded by the European Union. His appointment, beginning in December 2017, was set to expire on 13th October 2019.
The Respondent explains that although this letter of appointment explicitly provided that the Commission have the right to fill up the position following a competitive process in accordance with Article 12 of the Staff Regulation, if it decides to create the position in its organogram at the end of European funding. In other words, no automatic absorption was guaranteed. Following the expiry of the initial contract, the Applicant was granted a series of renewals: first, a renewed fixed-term contract, then a subsequent extension, and finally, a one-year contract scheduled to expire on the 10th of February 2023.
The Respondents further aver that the Appellant himself formally requested to be released from his contractual obligations to assume ministerial duties in Burkina Faso. With respect to the 83rd Ordinary Session, the Respondent confirms the deliberation but reiterated that the effect of the Session is that contract staff recruited after a competition by ECOWAS or through donor-funded projects with an absorption clause at the end of the project, who have obtained positive assessments, should be recruited in 2020, provided that the position exists on the approved chart of the Organisation. Pursuant to this, an ad hoc Committee was constituted in 2020, which decided that military personnel, including the Applicant, were ineligible for conversion.
The Respondent justifies the refusal to convert the Applicant on the grounds of his military status. As a Colonel Major in the Burkina Faso Army, he remained subject to a binding link of subordination to his home State. The Applicant never proved he had been released from his obligation, thereby failing to establish a status of proper secondment. The Respondent urged the Court that there is an incompatibility between permanent ECOWAS employment and military status. According to the Respondent, military officers remain absolutely attached to their national armed forces by a chain of command, whereas ECOWAS requires exclusive loyalty of its permanent Staff; it was this incompatibility that informed their decision not to convert him, as they usually convert only civilian staff.
The Commission denies any discrimination, noting that another military officer was converted only after retiring from national service. It further argues that converting the Applicant would have created unlawful double employment, contrary to the Revised ECOWAS Treaty and Staff Regulations. The Respondent also contends that Council reports and committee recommendations are merely advisory and do not bind the President of the Commission, who retains discretion over conversion decisions.
On remuneration, the Respondent justifies the suspension of the Applicant’s salary in November–December 2022 on the ground that he had assumed duties as Burkina Faso’s Minister of Defence following a military coup and had effectively abandoned his ECOWAS functions. His subsequent request to be released from his contract further undermined his claim to salary arrears. The Commission concludes that conversion is an exceptional measure, not an entitlement, and that international practice supports the exclusion of military officers from permanent international civil service posts. It therefore urges the Court to dismiss all claims and award costs against the Applicant.
In response, the Applicant argues that the Respondent misapplied both ECOWAS staff rules and Burkinabè law on secondment. Relying on Burkina Faso’s military service legislation, he contends that secondment to an international organisation legally suspends national duties and remuneration, thereby releasing him from national subordination during his ECOWAS service. He maintains that he was independently recruited through a competitive process and not merely seconded by his State, and that no ECOWAS rule expressly bars military officers from permanent employment.
The Applicant rejects the alleged incompatibility between military status and permanent ECOWAS service, emphasising that precedent exists of military personnel being converted or recruited as permanent staff without resigning from national forces. He further asserts that his salary suspension was unlawful, as his absence in November 2022 was covered by approved leave and he remained under ECOWAS authority at the time. On this basis, he insists that the refusal to convert his contract and the withholding of his salary lacked legal justification.
DECISION OF THE COURT
On the question of jurisdiction, the Court reiterated its settled position that Article 9(1)(f) of the Supplementary Protocol (2005) vests it with competence to hear cases involving allegations of human rights violations. Importantly, the Court reaffirmed that this jurisdiction is not limited to actions against Member States but may extend to ECOWAS institutions, including the ECOWAS Commission, where such institutions are alleged to have violated protected rights. Citing the Case of Jonas Kugblenu Adeunkpe v Council of Ministers, ECOWAS & Ors (ECW/CCJ/JUD/09/25), the Court noted that it is vested with authority to adjudicate disputes between the Community institutions and their officials, including those arising from conditions of employment, benefits, or administrative decisions affecting staff.
The Court further noted that two conditions must be satisfied before jurisdiction can be exercised as decided in Kabore Henri v ECOWAS Commission (ECW/CCJ/JUD/25/23); first, that there exists a dispute arising out of the relationship between the Community and an official; and, that the parties to the dispute are the Community (acting through its institutions or organs) on the one hand, and an official of the Community on the other hand. The Court, after establishing that these two conditions were met, held that it had jurisdiction to entertain the Application.
In addressing the issue of admissibility, the Court noted that an application, despite being within jurisdiction, will only be determined if the Appellant complied with the internal appeal mechanisms provided by the ECOWAS Staff Regulation before approaching the Court. Following the provisions of Article 10(e) of the 2005 Supplementary Protocol, the Appellant is expected to prove exhaustion of all internal remedies before seizing the Court with an employment-related dispute. The alleged violation concerning the Applicant’s non-conversion to permanent staff arose from the conclusions of the Ad Hoc Committee of May 2020, but he did not immediately initiate a challenge to this decision until 2014.
A new ECOWAS Staff Regulation (C/REG.29/12/21), which entered into force in December 2021, repealed the earlier 2005 version. It provides that all staff-related complaints initiated after it enters into force shall be governed by the procedures stipulated under the new Regulation. Where an alleged violation occurs under the old regime but no formal appeal was pursued, the procedural framework of the new Regulation applies.
Article 69 of the 2021 Staff Regulation establishes a sequential mechanism for staff disputes; an application for review to the immediate supervisor within one month; a hierarchical recourse to the Head of institution if the supervisor rejects or fails to act within one month; and referral to the committee for conciliation for staff claims and dispute resolution and eventually to the joint advisory board, in the event of continued dissatisfaction. The Applicant lodged a hierarchical complaint directly with the President of the Commission on 31st January, 2024, which went unanswered. Further appeals and complaints to the Administrative and Finance Committee, the Council of Ministers, the Authority of Heads of States and Government, and the Committee for Conciliation of staff claims and dispute resolution. He was thus deemed to have exhausted all available remedies.
Having settled the preliminary matters of jurisdiction and admissibility, the Court ruled on the merits of the petition. On the issue of whether the resignation of military personnel before conversion into permanent employment within ECOWAS was valid and lawful, the Court interrogated the legality of the Respondent’s insistence on resignation from the national armed forces as a condition for conversion, considering both Community Law and the Appellant’s contractual framework. Also on the Issue of whether the suspension of a political appointment in Burkina Faso, during the subsistence of the contractual relationship with ECOWAS, was legally justified, the court determined whether the stoppage of the Applicant’s salary, notwithstanding his approved leave and continuing contractual status, conformed to the law governing staff rights and obligations.
To this, the Court held that exclusive loyalty to the Community is a foundational principle of the Community civil service. This is reflected in Article 20 of the Revised Treaty of ECOWAS, which provides that staff of the Community owe their loyalty entirely and exclusively to ECOWAS and shall neither seek nor accept instructions from any government or external authority. Member States are, in turn, obliged to respect the international character and refrain from seeking to influence staff in the performance of their duties.
The Court observes that neither Article 20 of the Treaty nor Article 5 of the Staff Regulations expressly stipulates that military personnel must resign from their national service before conversion. However, a contextual and purposive interpretation of these two reveals that their objective is to prevent any conflict of interest, whether actual or perceived, and to ensure that permanent staff give undivided loyalties and align with the spirit and letter of the Treaty and Staff Regulations. The Court drew from international practice in other international organisations such as the United Nations and the African Union, where military personnel typically serve as contract staff only and are not granted permanent staff status to avoid instances of dual loyalty.
Regarding the Council of Ministers’ report, the Court affirmed that under the current legal regime, only Regulations, Directives, and Decisions have binding force, while Recommendations remain non-binding. Thus, the establishment of the Ad Hoc Committee and its subsequent exclusion of military personnel represented a lawful exercise of administrative discretion. Accordingly, the Respondent’s requirement that military personnel resign from their national armed forces before conversion to permanent status was a legitimate and lawful measure, grounded in the need to uphold institutional integrity, neutrality, and exclusive loyalty to the Community. The Applicant’s claim that the requirement was without a lawful basis fails.
On the legality of the termination of the Applicant’s salary following political appointment, the Court ruled that, according to Article 69 of the ECOWAS Staff Regulation (2021), disputes arising from employment, including salary complaints, must ordinarily be submitted first to the internal dispute resolution mechanism. Since the internal framework was inoperative, the next course of action was the Court. Before the Court, he ought to prove the existence of a contractual relationship by producing his employment contract and renewals, as the burden of proof is on him who asserts. He was able to prove this, but was unable to prove that he did not abandon his post, but was legitimately absent on leave. Thus, the termination of his salary was consistent with the enforcement of staff obligations.
CONCLUSION
The judgment in Kassoum Coulibaly Kassoum v. ECOWAS Commission affirms the ECOWAS Court’s cautious and principled approach to employment-related disputes involving Community institutions. While the Court upheld its jurisdiction and found the application admissible, it ultimately dismissed the Applicant’s substantive claims, finding that the Respondent acted within the bounds of Community law and established international administrative practice.The Court’s reasoning underscores the foundational principle of exclusive loyalty to the Community, as enshrined in the ECOWAS Revised Treaty and Staff Regulations. By endorsing the requirement that military personnel resign from national armed forces before conversion to permanent status, the Court emphasised the need to avoid actual or perceived conflicts of interest and to preserve the neutrality and integrity of the international civil service. The Court further clarified that Council of Ministers’ reports and recommendations, though influential, are not legally binding unless adopted as Regulations, Directives, or Decisions.On remuneration, the Court reinforced the burden of proof resting on staff members alleging unlawful salary suspension, holding that the Applicant failed to demonstrate lawful absence from duty. Overall, the judgment strengthens administrative coherence within ECOWAS and provides authoritative guidance on contract conversion, staff discipline, and institutional discretion within the Community legal order.
*Eshiozemhe Emmanuel is a First Class Law graduate from faculty of law, University of Benin, Edo State Nigeria.
