EAC Summit Decisions and Treaty Led Political Union

The East African Community Summit can set direction for integration, and its Secretariat can do substantial preparatory work. But the Treaty still determines which organ takes each legal step. Timothy Alvin Kahoho v Secretary General of the East African Community is useful because it tests Summit authority against the Treaty’s institutional design, clarifies the Secretariat’s implementation role and shows why a claimant must prove a legal defect rather than rely on concern about political speed.

Contents

The Summit communiqué that prompted a challenge

The legal questions

Judges and advocacy on the record

What the Court held

The rule stated clearly

Why the case matters beyond institutional charts

Political participation and its evidential burden

The legal process for a Protocol

Earlier and later decisions

What the case says about counsel’s choices

Domestic instruments and the limits of regional review

No dissent and the practical lesson

Preparation, adoption and legal effect

Institutional accountability without paralysis

People-centred integration in practice

A careful reading of the dismissal

The Summit communiqué that prompted a challenge

Timothy Alvin Kahoho, a Tanzanian journalist, challenged decisions announced after the EAC Summit met in Bujumbura on 30 November 2011. The Summit approved a Protocol on Immunities and Privileges for the Community and directed the Secretariat to prepare a roadmap for institutions needed by the Customs Union, Common Market and Monetary Union. It also asked the Secretariat to prepare an action plan and draft model for the East African Political Federation for later consideration.

Kahoho argued that these directions crossed Treaty lines. He said that the immunity proposal did not fall within the Treaty’s permitted fields for a Protocol, that the Secretariat had been assigned work that should have been undertaken through the Council, and that citizens needed a central role in the political federation process. The Court dismissed the reference. Its reasoning is a guide to the difference between political direction, technical preparation and the formal adoption of new legal obligations.

The legal questions

The First Instance Division framed questions about whether the Summit breached Treaty Articles 6, 7, 73, 123(6), 138 and 151 by approving the immunities Protocol and assigning preparatory work to the Secretariat. It also considered whether Protocols could be made only in fields expressly listed in Articles 74 to 130, whether political federation was exclusively controlled by the Summit or Council, and whether Kahoho was entitled to damages.

The central institutional question was whether Summit directions and Secretariat preparation, before adoption of any final legal instrument, exceeded the functions allocated by the Treaty. The related participation question was whether the Summit or Council could advance the process without ensuring a meaningful place for the public. Those questions required reading the Treaty as a whole, including Articles 11 and 71 on the Summit and Secretariat, Article 123(6) on political federation, Article 131 on cooperation in other fields, and Articles 138 and 151 on privileges, immunities and Protocols.

Judges and advocacy on the record

The judgment was delivered by Principal Judge Johnston Busingye, Deputy Principal Judge Mary Stella Arach-Amoko and Judges John Joseph Mkwawa, Jean Bosco Butasi and Isaac Lenaola. Kahoho appeared in person. The Secretary General was represented through the Community’s legal team; the judgment records the respondent’s arguments but the published text does not identify counsel by name in the passages relevant here. No name should be supplied by inference.

Kahoho’s case had a clear legal anchor: Article 123(6) describes a process toward political federation, while Article 151 governs Protocols. He also used the Summit’s own communiqué as evidence of what had been directed and raised the importance of public participation under the Treaty’s people-centred principle. The difficulty was that he challenged preparatory steps and claimed consequences that the record did not establish. The respondent connected the communiqué to prior work by a Team of Experts and to the Secretariat’s functions under Article 71, arguing that drafts remained subject to later consideration by the Summit.

What the Court held

The Court held that Article 71 gave the Secretariat a broad implementation and coordination role. The Secretariat could prepare proposals, collect information and follow Summit or Council decisions. The Summit, under Article 11(1), could give general direction and impetus to Community development. Because the Secretariat’s draft proposals were to return to the Summit for consideration, the preparation stage did not itself replace the Treaty’s formal decision-making process.

On the proposed Protocol on Immunities and Privileges, the Court read Article 131 as allowing cooperation to develop in fields not expressly enumerated in Articles 74 to 130. It found that the Treaty did not freeze regional cooperation to the subject headings listed in 1999. On political federation, it said the process was not the exclusive preserve of the Council and that all Community organs had to work together; it noted consultations with citizens had already taken place and found no evidence that they would not continue. The Court dismissed the reference and ordered each party to bear its own costs. It also rejected Kahoho’s request for US$60,000 in specific damages because he had not justified or proved the amount.

The rule stated clearly

The rule is that Treaty institutions may take preparatory and coordinating steps within their assigned functions, and the Summit may give general directions toward the Community’s objectives. A draft, roadmap or action plan prepared by the Secretariat does not become binding law merely because the Secretariat worked on it; formal adoption must still follow the Treaty’s procedures. At the same time, the Treaty’s cooperation fields are not necessarily closed to new subjects where Article 131 permits cooperation in other fields.

The rule has a participation dimension. Political federation is not a private project reserved to the Summit or Council; the process must remain people-centred and involve Community organs working together. But a court requires a pleaded legal obligation and evidence of its breach. An objection to the political wisdom or pace of integration will not by itself invalidate an institutional decision. A claimant must connect the challenged step to a specific Treaty clause, show what legal boundary it crossed and request a remedy the Court can grant.

Why the case matters beyond institutional charts

Citizens often encounter regional decisions as communiqués, roadmaps and press statements rather than as enacted laws. Kahoho explains that these forms can have different legal weight. A communiqué may direct work or set political priorities, while a protocol or later Council/Summit act may create operative rules. A reader should ask whether the challenged statement is preparatory, recommendatory or binding, and whether the proper Treaty process has been completed.

The decision also recognizes that the Secretariat is not merely a clerical office. It has continuous technical and implementation responsibilities that allow part-time political organs to function. That practical capacity matters across the Community: research, drafting and harmonization are necessary before leaders can decide. Yet administrative capacity does not make the Secretariat a substitute legislature. Its work must remain traceable to Treaty functions and be returned to the organ with authority to adopt the resulting legal instrument.

Political participation and its evidential burden

Kahoho argued that citizens’ participation was essential to federation and that a referendum was needed before the project advanced. The Court accepted that the Treaty’s people-centred principle made public input important, but it found that the record showed prior consultations in Partner States and contained no evidence that participation would cease. It did not declare a universal referendum requirement. A referendum may arise under a national constitution or a later treaty procedure, but this judgment did not create one.

For advocates, this part of the case is a reminder to convert a broad democratic concern into an evidential claim. Identify the Treaty text, national constitutional provision or formal consultation policy that creates a duty; specify which community was excluded and at what stage; gather notices, minutes, submissions, attendance records and responses; and show why the omission could affect legality. Without that work, the state can point to a process already underway and the court may find that the alleged breach is premature or unproven.

The legal process for a Protocol

Articles 73 and 138 deal with privileges and immunities for Community staff, experts, consultants and the Community itself. Article 151 provides the general Treaty framework for protocols, including recommendation by the Council, affirmation by the Summit, signature and ratification. Kahoho disputed whether those provisions authorized a Protocol on immunities. The Court’s response was to read them alongside Article 131, which permits cooperation in additional fields, rather than to treat the subject list in Articles 74 to 130 as exhaustive.

This is not a blanket license for the Summit to bypass the Council or for any organ to make a treaty alone. Kahoho concerned Summit approval for conclusion and Secretariat preparatory work. The case distinguishes the initial political decision to develop a proposal from the legally required steps that make a protocol binding. A later challenge should inspect the actual instrument, the recommendation, affirmation, signature and ratification history, then identify precisely where the required step was missing.

Earlier and later decisions

The EACJ had previously emphasized that institutional action is measured against the Treaty, not only by political convenience. Cases such as James Katabazi and Others v Secretary General of the EAC, Reference No. 1 of 2007, established that Treaty principles and institutional duties can be judicially tested when a claimant brings a proper reference. Kahoho applies that idea to the internal allocation of work among the Summit, Council and Secretariat, while giving considerable room for coordination and policy preparation.

Kahoho itself was later considered by the Appellate Division in Timothy Alvin Kahoho v Secretary General of the EAC, Appeal No. 2 of 2013, [2014] EACJ 21 (28 November 2014). The appeal maintained the importance of reading the Treaty’s institutional provisions in context and did not transform the original reference into a successful challenge. That later stage reinforces a practical point: applicants must preserve the exact legal questions, identify appealable errors and show how the Treaty was misread; disagreement with the First Instance Division’s policy assessment is not enough.

What the case says about counsel’s choices

Kahoho argued the case personally and raised substantial constitutional questions about integration, participation and the shape of a political federation. His strongest method was to use the communiqué and Treaty text together, which gave the Court a concrete act to review. His weaker point was the requested damages: the Court found the US$60,000 amount unsupported by evidence or calculation. The claim of continuing breach also faced the problem that the Summit had adjusted its directions and the Court saw an ongoing participatory process.

A respondent facing an institutional-law challenge should produce the complete chain of authority: the relevant Treaty provisions, Council and Summit minutes, prior decisions that initiated the work, terms of reference given to experts, Secretariat work product and evidence that final adoption remained with the competent organ. The government’s position benefited from showing the actions as preparatory and connected to a long-running process. The judgment does not disclose a dissent, and it does not contain a separate judicial opinion that would support a different reading.

Domestic instruments and the limits of regional review

No Partner State statute was the decisive instrument in Kahoho. The Court interpreted the EAC Treaty and the communiqué, particularly the rules governing regional institutions. Still, political federation may eventually engage domestic constitutions, national referendum laws, parliamentary approval procedures and treaty-ratification rules. Those requirements vary by state. The EACJ’s role is to decide whether an act of a Community institution complies with the regional Treaty; it does not replace the constitutional processes of Tanzania, Uganda, Kenya, Rwanda, Burundi or other Partner States.

For a present-day analysis, the Treaty version and amendments in force must be checked, together with the text of any later protocol or Summit decision. The ruling addressed the 2011 communiqué and the 1999 Treaty framework, including Article 131 as then applicable. Later legal developments may alter the institutional process or create new obligations. Kahoho remains valuable for method: distinguish the regional organ’s authority from national ratification, and distinguish a preparatory assignment from the final legal act that binds Partner States or citizens.

No dissent and the practical lesson

The published First Instance judgment is unanimous on its face and is signed by all five judges. It contains no separate dissenting judgment. Its holding should be described with care: the Court dismissed the claims before it, accepted a substantial role for the Secretariat in preparing and implementing decisions, and expected the people-centred process to continue. It did not approve every future Summit directive or decide that public consultation could be omitted.

The practical lesson is to follow the decision from proposal to legal effect. For a citizen or organization, obtain the communiqué, meeting records, enabling Treaty clause and any later adoption instrument; then assess whether the challenged action is final, whether the correct organ acted and whether the required recommendation and ratification steps occurred. For Community officials, document the authority for each assignment, keep preparatory work distinct from adoption, and make public participation visible in the record. Kahoho makes lawful integration depend on both institutional capacity and Treaty-defined limits.

Preparation, adoption and legal effect

One of the case’s most useful distinctions is between doing the work needed for a decision and taking the decision that creates legal effect. A Secretariat may analyze options, draft a roadmap, prepare model language and coordinate experts. Those activities do not by themselves amount to a Protocol or bind Partner States. A later instrument must pass through the approval, affirmation, signature and ratification steps that the Treaty prescribes. This distinction prevents procedural formalism from disabling government while protecting the Treaty’s allocation of legal authority.

The distinction offers a practical way to test institutional power. Ask what the challenged document actually does. Does it instruct staff to prepare options? Does it announce a political objective? Does it impose a legal duty on a Partner State? Does it purport to amend an existing right? Each function may have a different source of authority. Kahoho treats preparation as permissible within Article 71 and Summit direction as part of Article 11, but it does not suggest that the Secretariat can ratify a Protocol or independently enact new law.

Institutional accountability without paralysis

The judgment recognizes an institutional reality: the Summit and Council cannot personally perform every technical task. They meet periodically and depend on the Secretariat’s continuous work. If every research assignment were treated as an unauthorized transfer of power, integration could stall before a formal decision reached the proper organ. Article 71 therefore enables administration and implementation, while Article 11 allows the Summit to give general direction.

Functional efficiency is not a blank cheque. The work must be connected to a Community objective and remain within a role allocated by the Treaty. If officials use a preparatory mandate to create obligations without Council or Summit approval, that could present a different legal issue from the one decided in Kahoho. A future claimant should provide the actual output, evidence of how it was used, and a clear account of why it crossed from preparation into law-making. This distinction is essential for meaningful judicial review.

People-centred integration in practice

The Court did not treat “people-centred” cooperation as empty language. It accepted that citizens should have a place in the process toward political federation and noted evidence that consultation had taken place in Partner States. It nevertheless declined to infer that a referendum was legally required at that stage. This shows how a broad Treaty principle can guide interpretation without automatically dictating one specific participation mechanism.

Public bodies can make future legal disputes less likely by showing how people were informed, consulted and heard. Publishing plain-language proposals, inviting submissions in relevant languages, recording who participated and explaining how feedback shaped a draft would turn a Treaty principle into visible practice. These steps also help residents understand whether a proposal is still under discussion or has become binding law. For litigants, those records can clarify whether participation was meaningful or merely asserted after the fact.

A careful reading of the dismissal

The result should not be reduced to the proposition that Summit action is immune from judicial scrutiny. The Court considered the Treaty questions and dismissed the claim because it found no breach on the facts and provisions before it. The Summit had acted within its general direction-making role, the Secretariat’s work was preparatory and connected to Article 71, the Treaty allowed cooperation in other fields under Article 131, and the record did not establish that citizens were excluded from the federation process.

That reasoning leaves open future cases involving a different act. A final Protocol concluded without the Council’s recommendation, a binding measure issued by the wrong organ, or a process that demonstrably excluded the people in breach of a binding rule would require separate analysis. A claimant would need to distinguish Kahoho on the facts and show why its support for preparation and coordination does not answer the new question. A careful distinction is more persuasive than claiming that the precedent has no relevance.

Sources mentioned

Treaty for the Establishment of the East African Community, arts 6, 7, 11, 71, 73, 123(6), 131, 138 and 151; Communiqué of the 13th Ordinary Summit, 30 November 2011; James Katabazi and 21 Others v Secretary General of the EAC, Reference No. 1 of 2007; Timothy Alvin Kahoho v Secretary General of the EAC, Appeal No. 2 of 2013, [2014] EACJ 21 (28 November 2014); EACJ Law Report 2012–2015.

Suggested citation

Ronald Serwanga, “EAC Summit Decisions and Treaty Led Political Union”, East Africa Legal Insight (11 October 2026).