Advisory Opinion to the Council of Ministers

Key Facts

Issues

• Whether the principle of variable geometry can apply to guide the integration process, the requirement on consensus in decision-making notwithstanding.
• Whether the requirement of consensus in decision-making implies unanimity of the Partner States.
• Whether the principle of variable geometry is in harmony with the requirement for consensus in decision-making.

Holdings

• The Court affirmed that the principle of variable geometry can apply to guide the integration process even when decisions are made by consensus. It highlighted that variable geometry is intended for implementation flexibility, not as a substitute for consensus in policy formulation. The Court cautioned against treating variable geometry as the norm, suggesting it should be used as an exception to accommodate practical differences among Partner States.
• The East African Court of Justice determined that the principle of variable geometry is in harmony with the requirement for consensus in decision-making. It clarified that variable geometry serves as a strategy for implementation rather than a decision-making tool, allowing Partner States to progress at different speeds or opt out of certain initiatives while maintaining consensus on broader policy decisions. The Court emphasized that consensus, as defined in the Treaty, does not equate to unanimity and is instead a flexible mechanism for decision-making, distinct from the rigid requirements of unanimity.
• The Court concluded that the requirement for consensus in decision-making does not imply unanimity of all Partner States. It noted that consensus, as used in the Treaty, is a process of general agreement rather than absolute unanimity. The Court criticized the practice of equating consensus with unanimity, stating this misinterpretation has led to procedural challenges and called for amending the Treaty to clarify the definition of consensus.

Remedies

Legal Principles

• The Court applied the Purposive Approach under Article 31(1) of the Vienna Convention on the Law of Treaties, interpreting the principle of variable geometry and consensus in decision-making by examining the Treaty's objectives and the broader context of regional integration. This method ensured alignment with the East African Community's goals of cooperation and development.
• The Court utilized the Literal Rule to analyze the plain meaning of Article 7(1)(e), which defines variable geometry as allowing 'progression in co-operation among groups within the Community for wider integration schemes in various fields and at different speeds,' and Article 15(3), which outlines objection procedures. This reinforced that the principles operate as distinct mechanisms within the Treaty's framework.

Precedent Name

Cited Statute

• Treaty for the Establishment of the East African Community
• Vienna Convention on the Law of Treaties
• Protocol on Decision-making

Judge Name

• Mary Stella Arach-Amoko
• Jean-Bosco Butasi
• Johnston Busingye
• Benjamin Patrick Kubo
• John Mkwawa

Passage Text

• The Court finds that the principle of variable geometry, as its definition suggests, is a strategy of implementation of Community decisions and not a decision making tool in itself. Indeed as already noted, it appears in Article 7 of the Treaty only as one of the operational principles '...that shall govern the practical achievement of the objectives of the Community...'.
• It is the Court's view based on the submissions that problems associated with obtaining consensus stems from hesitation to take particular decisions, not rejection thereof, as once a decision is consistent with the objectives of the Treaty there is no room left for rejecting it as such rejection would be tantamount to rejection of a particular Treaty provision.
• The Court is of the opinion, therefore, that the principle of variable geometry can comfortably apply, and was intended, to guide the integration process and we find no reason or possibility for it to conflict with the requirement for consensus in decision-making.