East African Court Case on Variable Geometry

The East African Court of Justice explained how variable geometry can let Partner States move at different speeds without turning consensus into a permanent veto over regional integration.

Contents

The case and the question before the Court

What the Council was trying to solve

The Court’s answer

Why consensus is not unanimity

Why the opinion matters today

What earlier and later cases add

The practical lesson for lawyers and Community organs

Dissenting judgment and practical interpretation

The case and the question before the Court

Regional integration often fails in the space between a good common decision and the ability of each country to carry it out. A policy may be accepted by all Partner States, yet the countries may not have the same money, institutions, legislation, infrastructure or political room to implement it at the same time. The East African Court of Justice was asked to decide whether the Treaty for the Establishment of the East African Community could accommodate that reality.

The full citation is In the Matter of a Request by the Council of Ministers of the East African Community for an Advisory Opinion, Application No. 1 of 2008, Advisory Opinion No. 1 of 2008, [2005-2011] EACJLR 331 (EACJ, First Instance Division, 24 April 2009). The Court sat with Johnston Busingye, Principal Judge, Mary Stella Arach-Amoko, Deputy Principal Judge, John Mkwawa, Jean-Bosco Butasi and Benjamin Patrick Kubo. The opinion is commonly classified as an authoritative advisory opinion on EAC institutional law, variable geometry and consensus in Community decision-making.

The legal question was not whether a particular road, market or protocol had been implemented badly. It was more basic and more important: could the EAC principle of variable geometry operate consistently with Treaty requirements that decisions of the Summit and Council be made by consensus? If it could, could variable geometry guide the integration process even though consensus remained the decision-making rule? Finally, did consensus mean that every Partner State had to agree in the sense of unanimity?

What the Council was trying to solve

The dispute began with a practical institutional problem. At its meeting in Arusha on 13 September 2008, the Council of Ministers considered the Treaty’s reference to variable geometry. Article 1 defined it as flexibility allowing a sub-group of members in a larger integration scheme to cooperate in different areas and at different speeds. Article 7(1)(e) made it an operational principle of the Community. Yet Article 12(3) required Summit decisions to be made by consensus, and Article 15(4) used the same language for the Council, subject to the Protocol on Decision-Making.

The Council therefore directed the Secretariat to seek the Court’s advice. Counsel to the Community, Wilbert T.K. Kaahwa, filed the application on 19 December 2008 under Articles 14(4) and 36 of the Treaty and the applicable Court rules. The Court gave the Partner States and the East African Law Society an opportunity to participate. Kenya, Tanzania, Uganda, Rwanda and Burundi made written or oral submissions, and the East African Law Society appeared as amicus curiae.

The submissions show why the question could not be dismissed as a matter of vocabulary. Rwanda supported the view that variable geometry and consensus addressed different stages of integration. Burundi warned that moving at different speeds might be impossible if all executive decisions required agreement by every State. Kenya’s counsel used the experience of European integration to argue that flexibility need not destroy a common legal order. Tanzania placed greater weight on the Treaty’s institutional structure and on the need for Partner States to speak with a common voice. The Court had to turn those competing policy concerns into a legally workable rule.

The Court’s answer

The Court answered the first two questions in the affirmative. It held that variable geometry is compatible with consensus when applied appropriately, and that it can guide the integration process notwithstanding the requirement for consensus in decision-making. Its central distinction was between deciding what the Community should do and implementing the agreed decision in the real conditions of different Partner States.

In the Court’s reasoning, consensus is a decision-making mechanism used by the Summit, Council and other executive organs. Variable geometry is a strategy for implementation. The Community must first reach agreement on a policy or objective that is consistent with the Treaty. The implementation plan can then recognise national interests, negotiations, readiness, capacity and priorities. One State may implement immediately, another later, and another may temporarily opt out and subsequently opt in, but those arrangements must themselves be agreed by the Partner States through the Treaty’s decision-making process.

That last qualification is decisive. The opinion does not grant a Partner State a unilateral power to choose only the EAC policies it likes. Nor does it authorise a group of States to create a parallel institution outside the Treaty and call it variable geometry. The Court treated flexibility as a way of making a common decision workable, not as a method for avoiding a common decision.

The Court illustrated the point through a shared infrastructure project. All Partner States might agree that a regional highway is needed. Consensus would operate at the policy level. Variable geometry could then allow countries with the necessary capacity to begin construction earlier while others start later. The same logic could apply to a sectoral project that is more immediately relevant to some Partner States than to others, provided the arrangement remains connected to the Community’s objectives and is supported through the proper institutional process.

Why consensus is not unanimity

The Court answered the third question in the negative. Consensus under the Treaty does not mean unanimity. The Court acknowledged that the two ideas had been treated as equivalents in practice, but it found no sufficient textual basis for converting that practice into a legal definition. Articles 12(3) and 15(4), Article 2 of the Protocol on Decision-Making and the procedural rules referred to in the case used the word consensus without saying that it meant a complete 100 percent agreement, a qualified majority or a simple majority.

The Court also examined Article 15(3). That provision allows the leader of a Partner State’s delegation to record an objection in the Council. If the objection is not withdrawn, the matter is referred to the Summit. The Court treated this as a route for resolving an objection, not as proof that consensus always requires unanimity. It read Article 148 in the same way. The provision excludes the views of a State facing suspension or expulsion when the relevant decision is reached; it does not turn consensus generally into unanimity.

The reasoning contains an important institutional criticism. If the Treaty does not state how consensus is to be applied, lawyers, ministers and administrators are left to infer the rule from practice. The Court said that the solution to that uncertainty is amendment of the relevant instruments, not the judicial invention of unanimity. That is a restrained approach to interpretation. The Court clarified the legal difference between two concepts but did not pretend that it could write a complete voting code for the Community.

The rule of law from the opinion can therefore be stated simply: an EAC organ must make the common policy decision through the legally prescribed consensus process, while implementation may proceed at different speeds only where the arrangement is consistent with the Treaty, connected to the Community’s objectives and agreed through competent Community institutions. Consensus cannot be used as an unexplained veto, and variable geometry cannot be used as an unexplained escape.

Why the opinion matters today

The decision matters because it gives legal shape to a problem that ordinary language hides. “Consensus” sounds inclusive, while “variable geometry” sounds flexible. Neither word, by itself, tells an official when a decision has been validly made or when a State is merely refusing to implement it. The Court’s two-stage analysis supplies that missing structure: common agreement first, differentiated implementation second.

The current Treaty continues to place the principle in a wider constitutional setting. Article 6 links Community achievement to mutual trust, political will, sovereign equality, good governance, the rule of law and cooperation for mutual benefit. Article 7 treats variable geometry as one operational principle among others. Article 8 requires Partner States to coordinate policies and refrain from measures likely to jeopardise Treaty objectives. Article 16 makes qualifying Council regulations, directives and decisions binding within the limits stated by the Treaty. Read together, these provisions support flexibility, but they also require legality, institutional discipline and good faith.

The regional context is now larger than the one before the Court. The EAC officially has eight Partner States: Burundi, the Democratic Republic of the Congo, Kenya, Rwanda, Somalia, South Sudan, Tanzania and Uganda. The admission of new members makes the Court’s warning about uncertainty more serious. A practice that was difficult to manage among five States becomes harder to defend as an unwritten rule among eight. The Community should not rely indefinitely on ministers and lawyers to guess whether consensus has been reached. The Protocol on Decision-Making and the rules of the relevant organs should be read together and, where necessary, amended so that the legal threshold is visible.

The national dimension also matters. Uganda’s East African Community Act 2002 gives the Treaty the force of law in Uganda and provides for Community Acts to have the force of law after publication in the Community Gazette. Kenya’s Constitution, Article 2(6), provides that a treaty ratified by Kenya forms part of Kenyan law, while the Treaty-Making and Ratification Act 2012 supplies a national ratification framework. Tanzania has its own legislation giving effect to the EAC legal order, and the other Partner States likewise combine the Treaty with their constitutional and statutory procedures. These national routes do not allow a national ministry to rewrite the EAC Treaty. They do, however, affect whether a common decision can be implemented promptly and lawfully inside each State.

That is where the opinion becomes practically useful for citizens and businesses. A regional decision is not complete merely because it has been announced. A lawyer advising a company, transporter, worker or public body should ask three separate questions: was the Community decision made by the competent organ; was the decision recorded and supported by the required Treaty or Protocol procedure; and what national legislation, regulation or administrative action is needed for implementation? Variable geometry may answer the timing question. It does not answer the legality question for the organ or remove the need for domestic implementation.

What earlier and later cases add

The opinion fits the earlier reasoning of the EACJ in James Katabazi and 21 Others v Secretary General of the East African Community and Attorney General of the Republic of Uganda, Reference No. 1 of 2007. In Katabazi, the Court held that the intervention of armed security agents to prevent execution of a lawful court order violated the rule of law and consequently contravened the Treaty. The case also showed that the Court would not abandon its Treaty interpretation jurisdiction merely because a dispute had a human-rights dimension. Katabazi supplies the constitutional instinct behind the advisory opinion: Community integration is not only a political project; it is a legal order in which public power must remain within its mandate.

Calist Andrew Mwatela and two others v East African Community adds the institutional side of the same lesson. The Court treated the creation and use of a Sectoral Council as inconsistent with the Treaty’s allocation of functions and held that decisions made through the defective arrangement were invalid, while applying prospective annulment to avoid destabilising past acts. Mwatela is a warning against treating internal practice as a substitute for legal authority. In the advisory opinion, the Council could not simply label a preferred voting or implementation method “variable geometry” if the Treaty did not support the method.

The later decision in Hon. Sitenda Sebalu v Secretary General of the East African Community, Reference No. 8 of 2012, reinforces the implementation point from the opposite direction. The Court treated failure by the Council or its relevant committee to implement a court judgment as an infringement of Article 38(3) and contempt of court, while allowing a short opportunity to purge the contempt in the circumstances. The advisory opinion’s acceptance of delayed or staged implementation is therefore not a licence for indefinite non-compliance. Delay must be part of an agreed and legally intelligible implementation arrangement, not a quiet refusal to perform.

The cases also show how counsel can win or lose the legal framing. Counsel who relies only on economic convenience may fail to identify the Treaty provision that authorises the proposed action. Counsel who argues only from national sovereignty may overlook the binding institutional commitments that the State has accepted. The stronger argument begins with text, identifies the competent organ, separates decision from implementation, addresses the consequences for non-participating States and shows how the proposed interpretation protects both integration and lawful disagreement.

The practical lesson for lawyers and Community organs

For the Council and the Summit, the practical lesson is to record the two stages separately. The decision should identify the common policy, the Treaty objective it serves, the form of consensus reached and the organ legally authorised to act. The implementation instrument should then identify which States will participate, the reasons for different timelines, the conditions for later participation, the effect on non-participating States and the date or event for review. A short written record of those matters would reduce later arguments about whether a State agreed to the policy or merely accepted an implementation timetable.

For counsel, the lesson is to avoid presenting variable geometry as a slogan. A successful submission should connect it to Article 1 and Article 7(1)(e), read those provisions with Articles 6, 8, 12, 15, 16 and 36, and explain how the proposed arrangement respects Article 148 and the Protocol on Decision-Making. It should also distinguish an agreed opt-out or delayed implementation from a unilateral refusal. If the legal text remains unclear, the honest remedy is an amendment under Article 150 or a properly adopted Protocol, not an argument that past administrative practice has silently changed the Treaty.

For national institutions, the lesson is equally concrete. Parliaments and ministries should check whether domestic legislation, regulations, budgets and administrative systems are ready for the regional decision. Kenya’s treaty framework and Uganda’s EAC Act illustrate different ways in which a Treaty commitment becomes part of domestic legal practice. In every Partner State, an implementing officer should be able to show the legal source of the obligation and the reason for any staged commencement. That record protects the State from the accusation that it has used domestic readiness as a disguised veto, while also protecting national institutions from being ordered to perform an obligation that has never been validly adopted.

Dissenting judgment and practical interpretation

There is no separately recorded dissenting judgment in the official reproduced opinion. The conclusion is signed by all five judges on the coram: Johnston Busingye, Mary Stella Arach-Amoko, John Mkwawa, Jean-Bosco Butasi and Benjamin Patrick Kubo. It would therefore be inaccurate to attribute a minority judicial position to any of them.

There was, however, a practical argument that operated like a dissent in the litigation. Burundi’s submissions expressed the concern that a Community cannot decide together and implement at different speeds without a clearer rule on representation and decision-making. That concern remains valuable even though the Court rejected its legal conclusion. It identifies the point at which flexibility can become institutional fragmentation. The best reading of the opinion is consequently cautious: variable geometry is lawful when it helps the Community implement a common decision, but it should be exceptional, transparent, tied to specified fields or programmes and open to later participation. It must not create an inner circle that permanently controls the Community or reduce the EAC to a loose collection of bilateral arrangements.

The decision is thus neither a command that all Partner States must always move together nor a permission for some States to proceed without the others. It is a legal method for holding those two truths together. That is why the advisory opinion remains useful: it tells ordinary readers, officials and lawyers that integration can move at different speeds, but only after the law has identified who decided, what was agreed and why the difference in implementation is legitimate.

Sources mentioned in this case analysis

This article relies principally on the official EACJ case page and the Court’s reproduced opinion, the Treaty for the Establishment of the East African Community, the EAC Protocol on Decision-Making as discussed in the opinion, the EACJ Court Manual, Uganda’s East African Community Act 2002, Article 2(6) of the Constitution of Kenya and Kenya’s Treaty-Making and Ratification Act 2012. The comparative case references are James Katabazi and 21 Others v Secretary General of the East African Community and Attorney General of the Republic of Uganda, Reference No. 1 of 2007; Calist Andrew Mwatela and two others v East African Community; and Hon. Sitenda Sebalu v Secretary General of the East African Community, Reference No. 8 of 2012. The links below are written as ordinary text rather than embedded hyperlinks.

Suggested citation

Ronald Serwanga, “East African Court Case on Variable Geometry” East Africa Legal Insight (23 September 2026).