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Thursday 17 June 2021
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Court rules principle of ‘variable geometry’ can apply in EAC disputes

The East African Court of Justice (EACJ) has ruled that the East African Community can implement the principle of ‘variable geometry’, a ruling the East African La w Society (EALS) Monday described as a critical turning point in fast-tracking r e gional economic and political integration.

The EACJ said the ruling would create room for phased integration, which had bee n opposed by Tanzania, which cited its weaker economy.

The judges delivered their ruling last week at the EAC headquarters in Tanzania’ s northern town of Arusha, which hosts the regional body’s headquarters.

“The principle of variable geometry refers to the flexibility in the process of implementing projects and programmes in the integration process and the possible progression of the activities in co-operation by some o f the partner states as opposed to all partner states simultaneously,” EACJ said.

The decision is a major blow to Tanzania but a boon to Kenya, Uganda and Rwanda, which have been pushing for implementing decisions based on majority support as opposed to the current practice that emphasises dec ision making by consensus.

EACJ ruled that “the operational principle of variable geometry is in perfect ha rmony with the requirement of consensus in decision-making at the EAC.”

It added: “The principle of variable geometry can and should be applied to guide the regional integration process, the requirement of consensus in decision-making notwithstanding.”

The court also trashed Tanzania’s insistence on on consensus saying, “Consensus does not necessitate unanimity of the partner states. In other words, no partner state has a veto power when it comes to decision-making at the EAC.”

The EAC Council of Ministers had sought an interpretation by the EACJ of the pri nciple in an application that EALS joined in as amicus curiae (friend of the court).

Various stakeholders contend that although variable geometry is allowed, in prac tice, it is a “political” rather than legal question.

EALS counsel, Don Deya, had advised in his submissions that in each particular i nstance where the partner states, or any other group within the community, intended to apply variable geometry, they had to consider the politic al ramifications of doing so.

Hardly five days after the decision, partner states agreed to let the principle of variable geometry come into play.

One instance is the approval of the recent summit in Arusha to allow member stat es to use the identity card as a travel document to proceed on bilateral basis. EAC is made up Kenya, Uganda, Tanzania, Rwanda and Burundi.


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