Africa: Prohibition of post-employment non-compete clauses in certain francophone jurisdictions

In the large majority of francophone countries in sub-Saharan Africa (i.e. those which are members of the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA), the labour codes and some collective bargaining agreements attach more importance to employees’ ‘freedom to work’ than to protecting a company’s legitimate business interests.

In most OHADA member states, any non-compete clauses cease to have effect upon the termination of the employee’s contract of employment and are deemed legally null and void. This is to enable the employee to work freely for any other business, including a competitor. It is likely that the employee could claim damages for any loss suffered as a result of his or her former employer seeking to enforce a non-compete provision following termination of the contract of employment.

Some labour codes, e.g. in countries such as Benin, Congo (Brazzaville) and Côte d’Ivoire, do not provide for any exceptions for employers. However, other countries enable an employer to enforce non-compete clauses in situations where:

• the employee resigns, or the contract of employment is terminated due to his or her deliberate misconduct;
• the need to safeguard the company’s legitimate interests justifies the restriction; and
• the restriction is reasonably limited; both in geographical scope (usually a 5-50 mile radius in relation to employee’s former place of work) and a maximum duration of (generally) one year.

The latest draft of new OHADA employment-related legislation (the Uniform Act for labour matters), which was made publicly available in 2006, does not appear to offer employers any greater protection.

Action for employers

Employers in francophone sub-Saharan African countries should bear this in mind when entering into contracts of employment, particularly for key employees with access to confidential information.

Article written by Ntube Sone, Of Counsel