Recovering a Debt from a Public Entity in the OHADA Zone: The New Article 30-1 Mechanism
Since 16 February 2024, creditors of States, public enterprises and local authorities across the OHADA zone have gained a statutory path to compel budgetary recognition of their claims, without breaching the immunity that shields public assets from seizure. A close reading of Article 30-1 of the revised Uniform Act — and what it changes, in practice, for the foreign creditor.
Direct answer. Yes — since 16 February 2024, a creditor holding an enforceable title or a written acknowledgement of debt against a public legal entity of an OHADA member state may, upon that entity's silence for three months following a formal demand, apply to the competent Minister of Finance for the debt to be inscribed in the entity's budget as a mandatory expenditure. The remedy is new, it is procedural rather than coercive — it does not permit the seizure of public assets, which remain protected by the principle of insaisissabilité — and it rewards the creditor who documents each step with precision.
Legal basis
The mechanism is created by Article 30-1 of the Uniform Act of 17 October 2023 on the organisation of simplified recovery procedures and enforcement measures (the "AUPSRVE"), published in the OHADA Official Journal on 15 November 2023 and in force since 16 February 2024 — ninety days after publication, per the Act's own transitional provision. The 2023 Act supersedes the Uniform Act of 10 April 1998 on the same subject; proceedings already under way on the entry-into-force date remain governed, by way of exception, by the 1998 text.
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Article 30-1 does not disturb the immunity from execution that Article 30 of the same Act continues to afford to persons governed by public law. It creates, alongside that immunity, a distinct budgetary pathway: a formal demand (mise en demeure) addressed to the debtor entity; three months of silence; an application to the Minister of Finance accompanied by the enforceable title or the acknowledgement of debt and by proof that the demand went unanswered; and, upon inscription, the automatic accrual of statutory interest running from the date of the formal demand.
Analysis
The innovation answers a grievance as old as OHADA business law itself: a judgment or an arbitral award against a State or a public enterprise was, for want of any means of enforcement against public assets, frequently a pyrrhic victory — res judicata in form, dead letter in substance. Article 30-1 does not overturn the immunity; it circumvents its practical effect by converting a private claim into a budgetary obligation the State itself must recognise. The distinction matters: the creditor obtains recognition and the running of interest, not a bailiff at the door of a ministry.
Two consequences follow for our clients. First, the three-month silence is a clock that starts upon proof of receipt of the formal demand — service should therefore be effected by a method that produces an unambiguous date and proof of delivery, never by ordinary correspondence. Second, the transitional rule rewards diligence: a claim on which enforcement proceedings were already pending before 16 February 2024 remains under the 1998 regime, which affords no equivalent recourse — a foreign creditor sitting on a dormant title against a public debtor has every interest in reviewing, without delay, whether that title is better pursued under the new Article 30-1 track.
Recommendation
We recommend, for any client holding or contemplating a claim against a State, a public enterprise or a local authority within the OHADA zone: (i) an audit of the underlying title's enforceability and of the precise date on which any recovery step was first initiated, to determine which regime governs; (ii) formal service of the demand by an instrument that will withstand later scrutiny as to its date; and (iii) the assembly, from the outset, of a documentary file capable of persuading a Ministry of Finance — the standard of proof that satisfies a budgetary authority is not always the standard that satisfied the tribunal that rendered the original title. A matter of this nature is rarely won by the text of the article alone; it is won by the file built around it.
This analysis reflects our reading of the Uniform Act of 17 October 2023 and is provided for general information; it does not constitute legal advice on any particular matter, and its application to a specific claim should be confirmed with the firm before any step is taken.
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