| |
BACKGROUND:
[1] The genesis of the present Application for this Court’s Advisory Opinion
was traced to a before us to a dilemma being faced by the Council of
Ministers, (hereinafter referred to as “the Council”) regarding:-
(a) The Application of the Principle of variable geometry as provided in the
Treaty for the Establishment of the East African Community (hereinafter ‘the
Treaty’); and
(b) The Application of the Principle of variable geometry vis-à-vis the
requirement for consensus in decision-making.
[2] The Court was told that, arising from the aforesaid dilemma, the Council
did at its 16th Meeting held at Arusha, Tanzania on 13th September, 2008
make, vide item 2.7 in its Report of the meeting, a proposal in the
following terms:
‘2.7 Proposal for requesting for Advisory Opinion of the East African Court
of Justice
2.7.1 Introduction:
According to the Treaty “The Summit, the Council or a Partner State may
request the East African Court of Justice to give an Advisory Opinion
regarding a question of law arising from the Treaty which affects the
Community”.
The purpose of seeking an advisory opinion is to enable the Community, its
organs and institutions and the Partner States get a clear interpretation of
the Treaty on matters that are contentious or not clear. To the extent that
the legal position on following issues has affected the decision-making
process, progress in the formulation and progress of programmes or have been
challenged by other organs of the Community, it is important for the Council
to seek an advisory opinion.
2.7.2 Application of the Principal of variable geometry:
The Treaty provides that one of the operational principles of the Community
shall be “the principle of variable geometry which allows for progression in
co-operation among groups within the Community for wider integration schemes
in various fields and at different speeds”.
This provision, read together with the relevant interpretation of this
principle in the Treaty, suggests:
(a) flexibility in the progression of integration activities, projects and
programmes; and
(b) Progression of such activities, projects and programs in co-operation by
some of the Partner States as opposed to all the Partner States
simultaneously.
[3] However, this interpretation is contestable on the basis of the
fundamental requirement, under the Treaty and relevant annexes, for
consensus as a basis for decision-making by the Summit of Heads of State and
the Council of Ministers.’
[4] Stemming from the above concerns;
‘The Council:-
(a) directed the Secretariat to seek an advisory opinion of the East African
Court of Justice on the Application of the principle of variable geometry; (EAC/CM16/Decision
11);
(b) directed the Secretariat to file a request for an advisory opinion on
the application of the principal of variable geometry in the East African
Court of Justice by 31st October, 2008; and (EAC/CM16/Directive 12).’
2 The Application:
[5] Pursuant to the aforesaid directions, the Counsel to the Community did
on 19th December, 2008 file the present Application under Articles 14(4) and
36 of the Treaty for the Establishment of the East African Community (“The
Treaty”) and Rule 75 of the East African Court of Justice Rules of Procedure.
[6] The jurisdiction of this Court is founded in Articles 23(1), 27, 38(3)
on acceptance of judgments and 1, on the definition of ‘judgment’.
3 Initial scheduled hearing:
[7] The hearing of the Application was initially scheduled for 13th February,
2009. On that date the Applicant was represented by Mr. Wilbert T.K. Kaahwa,
learned Counsel to the Community; the Republic of Kenya was represented by
Mr. Anthony Ombwayo, learned Senior Principal Litigation Counsel in Kenya’s
Office of the Attorney-General/State Law Office; the United Republic of
Tanzania was represented by Mr. Sirilius Matupa, learned Assistant Director
in Tanzania’s Office of the Attorney-General, aided by Ms Mwema Punzi Juma,
learned State Attorney there; while the Republic of Uganda was represented
by Mr. Henry Oluka, learned Senior State Attorney.
(a) Joinder of East African Law Society as Amicus Curiae (Friend of the
Court):
[8] At the session of 13th February, 2009 three representatives of the East
African Law Society (EALS), Mr. Alute Mughwai; Dr. Allan Shonubi, President
of the EALS; and Mr. James Mwamu, Secretary-General of the said Society
applied to this Court, to allow the said Society to appear as amicus curiae
vide Application No 1 of 2008.
[9] There was no opposition by the Counsel to the Community, or by the
Partner States represented at the session, to the Society’s request and the
Court granted the said request.
[10] The Republic of Rwanda had, on the previous day filled submissions but
was not represented in Court on 13th February, 2009. The Republic of Burundi
had neither filed written submissions nor was it represented in Court.
Having regard to the importance of the Application Court decided that all
Partner States as well as the East African Law Society ought to be given an
opportunity to make inputs into the impending debate. Accordingly, the Court
ordered all Partner States and the EALS to file and serve their written
submissions by 27th February, 2009.
[11] Hearing of the Application was re-scheduled to 11th March, 2009 when
the parties were to highlight their written submissions.
4 Actual hearing:
[12] At the re-scheduled hearing of the Application on 11th March, 2009, the
Applicant Community, The Republic of Kenya and The Republic Uganda were
represented by the same Counsel who had represented them on 13th February
2009; The United Republic of Tanzania was represented by Mr. Yohana Masara,
learned Senior State Attorney; while the EALS was represented by learned
Counsel, Mr. Donald Deya. There was no appearance for The Republic of Rwanda
and The Republic of Burundi but Burundi had filed written submissions as had
the rest of the Partner States and the amicus curiae. Council for the
Community, the Partner States and EALS made oral highlights of their written
submissions. Summaries of all the submissions made to the Court are given
below for ready reference.
5 Submissions on behalf of the Applicant Community:
[13] Based on the questions posed at the beginning in the very first
paragraph of the background, Counsel to the Community framed the following
as the issues in contention in respect of which this Court’s Advisory
Opinion is sought:-
(i) Whether the principle of variable geometry is in harmony with the
requirement for consensus in decision-making.
(ii) Whether the principle of variable geometry can apply to guide the
integration process, the requirement on consensus in decision-making
notwithstanding.
(iii) Whether the requirement on consensus in decision-making implies
unanimity of the Partner States.
[14] It was Applicant’s Counsel’s contention that this Court has
jurisdiction to handle the East African Community Council of Ministers’
request for an Advisory Opinion pursuant to Articles 23(1), 27 and 36 of the
Treaty. He pointed out that the request is of great significance in the
implementation of the Treaty and the growth and development of the Partner
States’ integration process for the following reasons:-
(a) The request serves to enhance the Court’s role as the Community’s
judicial organ.
(b) The outcome of the request will guide the process of decision-making
which is critical to the institutional development of the East African
Community.
(c) The outcome of the request will also contribute to the development of
regional jurisprudence as envisioned under Articles 6, 7 and 126 of the
Treaty.
[15] Turning to the issue of variable geometry, Applicant’s Counsel pointed
out that it is an innovation of European law allowing member states to
tailor their participation in the European integration process. He said that
in the case of the East African Community, the principle of variable
geometry has not been applied to-date and indicated that the present
Application seeks guidance on how the principle can be applied here. He
reported that within the European Union, application of the principle of
variable geometry allows Member States to negotiate exemptions from certain
Treaty provisions and to individually apply a greater speed on some
integration processes than others, using the institutions and procedures
laid down in the Treaty. He gave as one example in this regard, the opt-out
of Denmark, UK and Ireland from the European Community’s provisions on free
movement of persons, asylum and immigration.
[16] The Applicant’s Counsel submitted with particular reference to Article
7 (1) (e) of the Treaty, that the integration implied by variable geometry
is essentially pragmatic and incremental; that it permits integration to
proceed on the basis of progressive steps, allows smaller sub-groups to move
faster than the whole group and provides that many decisions can be made by
majority rather than by consensus. In the latter regard, he pointed out that
the European Union and the United Nations have gradually shifted from
consensus decision-making to appropriate application of majority
decision-making. It was Applicant’s Counsel’s contention that application of
variable geometry principles could considerably ease some of the tensions
among sub-regional integration arrangements in the Community and enhance the
prospect of closer and more regional co-operation.
[17] With regard to consensus decision-making, Applicant’s Counsel noted
that the principle runs throughout the executive organs of the Community:
for instance, in the Summit by virtue of Article 12(3); and in the Council
by virtue of Article 15(4), subject to the Protocol on decision-making which
enumerates vide Article 2(1) the matters on which decisions of the Council
must be by consensus and provides vide Article 2(2) that all other decisions
of the Council must be by simple majority, without specifying what those
decisions are. Applicants’ Counsel also drew attention to Article 148
providing express Exceptions to the Rule of Consensus, in matters pertaining
to suspension or expulsion of a Partner State where the views of the Partner
State being considered for suspension or expulsion do not count for purposes
of reaching a decision on the proposed suspension or expulsion.
[18] Quoting from International Institutional Law, by Schemers G. Henry and
Niels, M. Blokker, Applicants Counsel identified the following as aims of
consensus decision-making as opposed to the use of Majority rule approach:-
(a) Inclusive: involving as many stakeholders as possible.
(b) Participatory: soliciting the input and participation of all the parties
charged with decision-making.
(c) Co-operative: participants strive to reach the best possible decision
for the group.
(d) Egalitarian: all members in a given group being accorded an equal
opportunity to make input;
(e) Solution-oriented: striving to emphasize common agreement over
differences, using compromise.
Applicant’s Counsel, however, cited the following shortcomings as afflicting
consensus decision-making:-
(a) Delays in arriving at a consensus:
Since consensus decision-making focuses on discussion and seeks the input of
all participants, it can be a time consuming process. Counsel considered
this a potential liability in situations where decisions need to be made
speedily or where it is not possible to canvass the opinion of all delegates
in a reasonable period of time. He added that the time commitment required
to engage in the consensus decision-making process can sometimes act as a
barrier to participation for individuals unable or unwilling to make the
commitment.
(b) Intransigence associated with determining consensus;
(c) The possibility of indiscriminate vetoing of proposals that may be
favoured by the majority of Partner States, which in his view may lead to
the preservation of the status quo. He pointed out that in decision-making
bodies that use formal consensus, the ability of individuals or small
minorities to block agreement gives an enormous advantage to anyone who
supports the existing state of affairs; and that this could mean that a
specific state of affairs can continue to exist in an organization long
after a majority of members would like it to change;
(d) The fact that consensus may not stand the test of usefulness when the
membership of the Community increases to more than five countries;
(e) Susceptibility to disruption: Giving the right to block proposals to all
group members may result in the group becoming hostage to an inflexible
minority or individual. Counsel added that “opposing such obstructive
behaviour” construed as an attack on freedom of speech and in turn resolve
on the part of the individual to defend his or her position. He concluded
that as a result, consensus decision-making has the potential to reward the
least accommodating group members while punishing the most accommodating;
(f) Abilene/Paradox: Applicant’s Counsel pointed out that consensus decision
making is susceptible to all forms of groupthink, the most dramatic being
the Abilene paradox. He explained that in the Abilene paradox, a group can
unanimously agree on a course of action that no individual member of the
group desires because no one individual is willing to go against the
perceived will of the decision-making body.
[19] Finally, the Applicant’s Counsel concluded his submissions with the
following prayer, namely, that the Court gives an advisory opinion on:-
(a) the Application of the Principle of variable geometry;
(b) the Application of the Principle of variable geometry vis-à-vis the
requirement for consensus in decision-making;
(c) Whether the requirement of consensus in decision-making implies
unanimity of the Partner States.
6 Submission on behalf of Rwanda
[20] Rwanda identified the core issues in this application as being:
To determine whether or not the principle of variable geometry and decision-
making by consensus are in conflict.
[21] It was Rwanda’s submission that the two are not in conflict and that
each of them caters for a different set of issues. Rwanda maintained that it
is not a legal requirement under the Treaty that decision-making must be by
consensus; and, in essence, that the concept of consensus has wrongly been
over-emphasized by the Partner States on the basis that the co-operation and
integration processes are still in their infancy. It was Rwanda’s submission
that the principle of variable geometry gives a right to some Partner States
to engage into other activities for wider integration and not to engage in
integration activities of the Community and that this would negate the
objectives for which the Community was established.
[22] To Rwanda, it was evident that for all integration programmes of the
Community, consensus in decision making is indispensable until it is agreed
between the Partner States to amend the Treaty. In Rwanda’s view, the Treaty
gives no flexibility to some groups and that all the Partner States must
agree on each and every activity. Rwanda maintained that there are a number
of activities and programmes that would need a total participation of all
the Partner States, without which implementation would be difficult. In the
latter regard, Rwanda noted that among the fundamental principles to govern
the Community are principles of mutual trust, political will and sovereign
equality; that among reasons leading to the collapse of the previous East
African Community was lack of political will; that decision-making for
progression of the integration programmes would highly depend on the
political will of the Partner States and that, as such, the Partner States
are bound by the Treaty under Article 6(a).
[23] It was Rwanda’s view that issues such as delays in arriving at
consensus and intransigence associated with determining consensus raised by
the Council of Ministers should not be over-emphasized if there is a total
agreement that the provisions of Article 6(a) bind the Partner States.
[24] Rwanda pointed out that under Article 8(1) (c), it is the obligation of
the Partner States to abstain from any measures likely to jeopardize the
achievements of those objectives or the implementation of the provisions of
this Treaty.
[25] Rwanda noted that the Council had already initiated moves within the
Sectoral Committee on Legal and Judicial Affairs to amend the Treaty. It was
Rwanda’s projection that the strict requirement for consensus, which, as we
understood it, Rwanda considered necessary in the Community’s infancy stages,
is bound to be reversed in due course. Rwanda contended that since the issue
of consensus is being handled by the Council through the Sectoral Committee
on Legal and Judicial Affairs, the present Application to this Court is
redundant.
[26] In conclusion, Rwanda submitted that the principle of variable geometry
is in harmony with the requirement of consensus in decision making in that
the principle of variable geometry governs progression in the integration
activities for some groups within the Community to engage in other
activities outside the Community while the requirement of consensus in
decision making caters for only activities of the Community and not
otherwise. Rwanda reiterated:-
(a) That the Application by the Council is redundant because the issue said
to be in contention has been resolved; and
(b) That the Court should advise the Applicant that the principle of
variable geometry is in harmony with the requirement for consensus in
decision-making.
7 Submissions on behalf of Burundi
[27] In Burundi’s submission, the principle of variable geometry may be
questionable in practice in view of the mandatory requirement of decision
making by consensus in all executive organs of the East African Community.
To Burundi, it cannot be possible to move together and decide by consensus
while it is at the same time allowed to go at different speeds. As far as
Burundi is concerned, the principle of variable geometry can apply and allow
the integration process only if there is a clear provision which regulates
decision-making by specifying certain new required quorum of representation
in meetings. Burundi maintained that in practice, there remains a
controversy between application of the principle of variable geometry and
the principle of decision making by consensus by all Partner States.
Accordingly, Burundi was categorical that the two principles are not in
harmony as far as practice is concerned.
[28] With regard to the second issue, Burundi applied similar arguments as
the ones just advanced above and concluded that variable geometry cannot
apply to guide the integration process in light of the requirement of
consensus in decision-making.
[29] As regards the third issue, Burundi’s position was that unanimity
requires complete agreement by all Partner States on discussed issues while
consensus in decision-making requires flexibility in favour of quick
decision-making and the integration process. It was Burundi’s contention, as
we understood it that, in the latter event, the requirement of
decision-making by consensus necessitates unanimity of all Partner States
except the one which has taken an option of applying the principle of
variable geometry.
8 Submissions on behalf of Kenya
[30] Counsel for Kenya referred to various dictionary definitions of the
term ‘consensus’ and noted that they tended towards a general agreement or
majority view, not necessarily amounting to unanimity. As regards the
principle of variable geometry, he submitted that it is a strategy allowing
negotiations of one or more particular issues to lead to an agreement.
[31] Counsel referred to the European Community and identified proponents of
variable geometry as falling into two camps:-
(a) Integrationists – impatient to accelerate the process of unification and
unwilling to be held up by the ‘slowest ship in the convoy’ to ensure there
is no regression to national individualism.
(b) Countries that wish to slow or halt the federal moment but are prepared
to allow others to go ahead, provided they themselves can be left out of
policies they consider unsuited to their national interest.
[32] In further reference to the European Union, Counsel identified
opponents of variable geometry as also falling into two camps:-
(a) Those who fear it will be an excuse for creating a privileged inner
circle, a ‘top table’ of decision makers from which they will be excluded.
(b) Those who suspect that their exemptions will prove transient and that
sooner or later they will be sucked into an unwanted process of ever deeper
integration.
[33] Counsel identified, also within the European Community, a middle group
comprising members from both sides of the debate, i.e. those who believe
that institutionalized flexibility may lead to ultimate break-up of the
European Community or to its transformation into a ‘mere’ free trade area.
[34] Counsel noted from the formulation entitled ‘close co-operation’ in the
Amsterdam Treaty that groups of Member States wishing to act together using
the European Community’s institutions could ‘as a last resort’ do so by
qualified majority vote in the Council of Ministers, provided none of the
non-participants exercised a veto at Head of Government level. Counsel also
noted that other conditions of application of the principle of variable
geometry included the following:-
(a) That the participants must represent a majority of Member States.
(b) A right of deferred participation by those who chose to stay out
initially.
[35] The same Counsel also noted from the European Community experience that
practical realities on the ground led to the Luxembourg compromise, under
which it was conceded that decisions affecting a vital national interest
would have to be unanimous even if the Treaty specified majority voting. He
added, however, that the Luxembourg compromise was virtually abolished by
the 1980’s in favour of majority voting. Counsel, instructively, reported
that the unanimity principle still exists for:-
(a) Accession to Treaties and Treaty amendments;
(b) Appointments to the European Commission;
(c) Changes to the Community’s revenue raising power;
(d) Resolution of certain disputes within the European Parliament;
(e) Common Foreign and Security Policy; and
(f) Co-operation in Justice and Home Affairs.
[36] Counsel pointed out, still with reference to the European Community,
that the concept of variable geometry allows countries to opt out of
unwanted policies rather than being obliged to choose between vetoing them
or accepting a majority verdict.
[37] Turning to the East African Community, Counsel for Kenya submitted that
as far as the Community’s non-judicial organs are concerned, their decision
making process is by consensus which, in practice, has meant that there has
to be complete unanimity over an issue. He wondered in the latter regard
whether consensus really means complete unanimity and drew attention in this
connection to Chambers 21st Century (English) Dictionary which defines
‘Consensus’ as the majority view. He acknowledged the challenges outlined by
Applicant’s Counsel as being associated with the requirement of consensus in
decision-making and proceeded to compare and contrast the principles of
variable geometry and consensus in decision making.
[38] He submitted that the principle of variable geometry is very different
from consensus in decision making and added that variable geometry is a
flexibility that permits Member States in a regional integration arrangement
to pursue integration at different levels in different fields/policy areas,
so long as the enhanced integration contributes to enhancing integration in
the regional integration arrangements, and does not create a barrier to
trade or discriminate among Member States. In Counsel’s view, the principles
of variable geometry and requirement of consensus in decision making can
operate together if the scope of where each principle applies is clearly
defined and there is no conflict in scope, otherwise the two cannot be in
harmony with each other.
[39] He maintained that the principle of variable geometry can guide the
integration process notwithstanding the requirement of consensus in decision
making, provided the scope of the policy areas in which each will apply are
defined. He cited as a living example the fact that the European Community
has two tracks towards integration, i.e. the body of common rights and
obligations which bind all Member States within the European Community (aquis
communautaire) and variable geometry.
[40] Counsel pointed out that whereas the East African Community’s Protocol
on Decision-making provides that decisions on the matters specified in
Article 2 (1) shall be by consensus, the said Article 2(1) does not
specifically provide whether the consensus is unanimous or general majority
view. He noted the definition of consensus in Chambers 21st Century
Dictionary already alluded to and also to:-
(a) Black’s Law Dictionary which defines ‘Consensus’ as a general agreement
or collective opinion; and
(b) Wikipedia, Tthe Free Encyclopedia which defines ‘Consensus’ as a group
process that not only seeks the agreement of most of the participants, but
also the resolution or mitigation of the objections of the minority.
[41] Having noted that consensus is usually defined as meaning general
agreement and the process of getting to such agreement, Counsel reminded
this Court that in the case of the executive organs of the Community,
consensus has been treated as being synonymous with unanimity. He submitted
that the requirement of consensus in decision making does not necessitate
Unanimity unless specifically provided for in the subject document, as in
the case of Article 10 of the North Atlantic Treaty (NATO) which
specifically provides that there has to be a unanimous decision.
[42] Counsel observed that in the case of the European Community, the need
to accommodate States with different capacities within the same
international framework gradually triggered various forms of variable
geometry. He, however, noted the danger of unconstrained variable geometry
arising from the concern that the more the Community allows countries to
pick and choose the policies they like and form into small groups of
like-minded countries, the greater the risk that some fundamental policies
will not be addressed by some Member States.
[43] In conclusion, Counsel for Kenya submitted that there is uncertainty as
to what consensus in decision making precisely refers to and that the
uncertainty is slowing down the success of the integration process as the
Treaty is silent on the issue. He asked this Court to elucidate what
consensus means. He noted that each country has a different rate of economic
growth, different socio-economic factors and varying national policies that
it takes into consideration when deciding whether or not to vote in favour
of a specific proposal. He asked the Court to advise whether consensus in
decision making refers to a strict 100% majority, 2/3 majority or simple
majority; and that once such clarification is made, it is of paramount
importance that the Treaty is amended to reflect the Court’s decision in
order to eliminate confusion and uncertainty in the future. He maintained
that variable geometry is an important principle that operates side by side
with consensus in decision making as it accommodates each country’s unique
features and that as such it should be embraced by the Community and not
ignored by forcing States to adopt blanket proposals which may not be best
suited to their interests. He commended to this Court the sentiments of
Judge Tanaka of the International Court of Justice on the same issue in the
West African case of Liberia against the Union of South Africa, namely:
‘to treat unequal matters differently according to their inequality is not
only permitted but required’.
[44] He urged that the Court should define the policies that each Member
State must participate in without derogation, taking into consideration that
the Community is developing beyond issues of economics and governance into
fields such as fundamental rights and freedoms, freedom of movement and
information, competition, and the like. Finally he suggested the policies
which in his view should be subject to consensus in decision-making and
those which in his view should be subjected to the principle of variable
geometry.
9 Submissions on behalf of Tanzania
[45] Council for Tanzania opened his submissions by taking the adversarial
position that the resolution of the Council of Ministers seeking the Courts’
Advisory Opinion was not pleaded and that, therefore, it did not form part
of the Application before this Court. This prompted the Court to call for
the Council’s resolution, which was provided and it is reproduced at the
start of this Advisory Opinion. Tanzania’s Counsel recited the three issues
identified by the Applicant’s Counsel and noted that the principle of
variable geometry is captured under Article 7(1) (e) of the Treaty. He also
noted the definition of the principle of variable geometry given in the
interpretation Article 1 of the Treaty. He also revisited consensus in
decision-making at meetings of the Council of Ministers as provided for
under Article 15 of the Treaty and noted that vide Article 15 (3) a member
of the Council who is a leader of his/her Partner States’ delegation to a
meeting of the Council may record his/her objection to a proposal submitted
for the decision of the Council and that if such objection is recorded, the
Council shall, unless the objection is withdrawn, refer the matter to the
Summit for decision. Council submitted that this Court may, in determining
whether the principle of variable geometry is in harmony with the
requirements of decision-making by consensus, consider the operational
principles laid down under Article 7, the fundamental principles laid down
under Article 6 and the procedure for decision making which is predominantly
by consensus.
[46] He suggested to the Court that in determining the aforesaid question,
the Court may wish to appreciate that the objectives of the Community are
found in Article 5. He highlighted those objectives, laid down in Article
5(1), as: development of policies and programmes aimed at widening and
deepening co-operation among Partner States in political, economic, social
and cultural fields, research and technology, defence, security plus legal
and judicial affairs – for the Partner States’ mutual benefit.
[47] Counsel pointed out that in endeavouring to fulfill the objectives in
Article 5, the Partner States are guided by the fundamental principles laid
down in Article 6 which include: mutual trust, political will and sovereign
equality; peaceful-co-existence and good neighbourliness and peaceful
settlement of disputes. In his view, the operational principle of variable
geometry, provided for in Article 7(1) (e), flows from the above fundamental
principles, i.e. recognition of the fact that there may be in existence such
groups of members in a larger integration scheme who require varied
developmental speeds. He submitted that those sub-groups must be afforded
their pace of development into an integrated Community. He also submitted
that the principle of variable geometry likewise recognizes the existence of
varied areas of integration. It was his view that all the integration
processes alluded to above require the forging of a common stand in
attaining the larger objective. He submitted that the only mechanism that
may afford members and sub-groups with varied levels of developmental
ability to forge a common voice is that of consensus in decision making. He
drew the Court’s attention to the fact that in embracing both variable
geometry and consensus in decision-making in the same Treaty, the Community
need not re-invent the wheel as the European Community before it went
through a windy path prior to attaining its present achievements.
[48] It was Counsel’s plea that this Court should recognize that the
decision by the framers of the Treaty to adopt consensus in decision making
was purposeful to carry on board all members in its decision-making process.
He contended that the decision took into account the stark reality that each
Partner is a Sovereign State and that in the Partner States’ peaceful
co-existence, mutual trust is of the essence. He noted that the people the
Partner States represent are varied in their stages of development and that
the dual mandate of the leaderships of the Partner States to the people they
represent on the one hand and to the Community on the other demands that the
leaderships and their people be heard and their positions respected. He
submitted that the Partner States’ commitment that decisions be made by
consensus is in clear accord with reality on account of their commitment to
have a single voice, notwithstanding their variables in terms of sizes or
stages of development. Alternatively, he asked the Court to look at the two
principles as standing alone, each serving a specific purpose but each
complementing the other. He contended that consensus in decision-making is
pivotal to the attainment of the fundamental principles in Article 6 and
operational principles in Article 7 of the Treaty.
[49] Revisiting the question of definition of consensus, Counsel pointed out
that the Thesaurus legal dictionary gives an outline of the meaning of
consensus to the effect that is connotes general agreement and contended
that consensus means unanimity.
[50] Counsel urged this Court to advise that:-
(a) the plain meaning of the provisions of Article 12 (3) is that decisions
of the Summit shall be by consensus;
(b) the plain meaning of Article 15(3) to the effect that a member of a
Partner State’s delegation to a meeting of the Council of Ministers can, by
recording an objection, block a proposal submitted for the Council’s
decision thereby necessitating referral of such proposal to the Summit,
comprising the Heads of State and Government of the Partner States; and
(c) the plain meaning of the provisions of Article 15(4) that, subject to
the Protocol on Decision-making, the decisions of the Council shall be by
consensus;
[51] Indicate the intention of the Partner States to be that consensus
should mean unanimity of all partner States in their decision-making.
Counsel asked this Court to take note of the developments that have taken
place in the Sectoral Committee on Legal and Judicial Affairs where
initiative to amend the Treaty on the decision-making process of the Council
has commenced; and submitted that the Council of Ministers, being a policy
organ of the Community, is better placed to manage the amendments rather
than the present judicial recourse. He questioned the appropriateness of the
Council’s decision to seek judicial recourse in what he considered a pure
policy matter which it has power to address; and noted that both the process
of amendment of the Treaty and the seeking of an Advisory Opinion of the
Court are continuing simultaneously. He contended that the object of the
present Application for the Court’s Advisory Opinion is sub-judice as the
Council of Ministers directed that the issue of amendment of the Treaty
regarding consensus in decision-making be left to the Sectoral Committee on
Legal and Judicial Affairs, which, according to Tanzania, is where the
matter belongs; and submitted that this Application for the Court’s Advisory
Opinion is an abuse of the process of the Court.
10 Submissions on behalf of Uganda
[52] Counsel for Uganda opened his submissions by acknowledging that the
East African Community came into being on 7th July, 2000, thereby marking
the beginning (re-birth) of formal collaboration of the East African
countries of Kenya, Tanzania and Uganda in economic and social integration
carried on informally over many years in the various fields of life in the
East African region (after the collapse of the previous East African
Community). He noted that the objects of the Community today stand out on a
much broader vision comprising five Partner States following incorporation
of Rwanda and Burundi in the East African Community bloc. He acknowledged
that in pursuit of attainment of its vision of establishing an East African
Customs Union, a Common Market and ultimately a Political Federation, the
East African Community has set itself to ascribe to universally acceptable
principles of good governance, democracy, the rule of law, observance of
human rights and social justice. He observed that in an endeavour to bring
the above norms of good governance to fruition, a set of operational
principles were laid down in Article 7 of the Treaty.
[53] He noted that the operational principle singled out for purposes of the
present Application is that of variable geometry provided for under Article
7 (1) (e) of the Treaty and contended that the said principle is subject to
the fact that under the Treaty, any decision made has to be arrived at with
consensus and unanimity by all parties to the Treaty.
[54] Counsel revisited the issues framed for determination. He noted the
definition of variable geometry in Article 1 of the Treaty. With regard to
consensus, he referred to the Advanced Learners Dictionary which defines
consensus as an opinion that all members of a group agree with and repeated
the core issue raised in the present Application, i.e. whether the principle
of variable geometry is in harmony with the requirement for consensus in
decision-making.
[55] He identified the Summit, Council of Ministers and Co-ordination
Committee of the East African Community as being endowed with specific wide
ranging powers to give general direction as regards attainment of the
objectives of the Community and pointed out that all the three organs have
adopted and passed Rules of Procedure and that the overriding fact in their
meetings is that decisions at these meetings are made by way of consensus.
He wondered where this leaves the principle of variable geometry and
submitted that it is one of the potential avenues for actualization or
implementation of policies, visions and objects for which the Treaty was
established. Counsel contended that with regard to the policies formulated
in each of the Community organs, each Partner State is fairly well placed to
have a local feel and understanding of the course of speed or urgency with
which it can implement, actuate or formulate the policies adopted in the
Community. In this regard, he maintained that the East African Community has
to give each Partner State a reasonable time to adopt a method of compliance
agreeable to its people and posited that it is the principle of variable
geometry that would allow for this.
[56] Counsel submitted that the principle of variable geometry is in harmony
with the requirement of consensus in decision making since variable geometry
would allow each country to pace changes brought about in the Treaty at a
speed and course that meets and fits unique local conditions of each
specific Partner State. He contended that variable geometry is one of the
operational principles to enable the East African Community established
under the Treaty to achieve its mission and goals. It was his submission
that consensus and variable geometry cannot be put at par or side by side;
and that one has to decide on a policy or objective before arriving at
variable geometry which has to take account of practical realities in the
different Partner States on the mode and speed of implementation of the
policy.
[57] He noted that policies, once conceived, have to be discussed,
culminating in decisions being taken; that Articles 12 (3) and 15 (4)
provide for decisions in the Summit and Council, respectively, by consensus;
and that the Protocol on Rules of the Co-ordination Committee is also
specific in that, vide Rule 13, the recommendations of the Co-ordination
Committee have to be agreed by consensus. It was his contention that any
decision made in the organs of the Community will only be carried through
with the unanimous agreement of all the Partner States and that it is only
after such agreement is reached that the principle of variable geometry
comes into action.
[58] Counsel then proceeded to frame what he considered to be the core
question arising from the present application differently, namely:
‘Whether the principle of variable geometry should have an application in
the process of decision making at the level of organs of the Community. In
other words, can decisions between Partner States at the Summit, Council and
Co-ordination Committee be made using variable geometry?’
[59] He submitted that this question cannot be answered in this Court as in
his view the Court is not the vehicle for amendment of the Treaty, nor is it
a legislative organ for the Community. He acknowledged that the present
application has noted the fact that there are delays in arriving at
consensus, intransigence associated with determining consensus, the
possibility of vetoes, the fact that there are now five Partner States, and
that these factors delay decision making. It was his contention, as we
understood it, that the option of variable geometry or some other principle
being used in the making of decisions by the Community is one that the
governing bodies and the administrators of the East African Community should
consider, but not this Court.
[60] He submitted that the principle of variable geometry can guide the
integration process, notwithstanding the need for consensus in
decision-making.
[61] On the question whether the requirement for consensus in decision
making necessitates unanimity of Partner States, Counsel referred to the
definition of unanimity in the Oxford Learners Dictionary, namely, ‘…
Complete agreement about something among a group of people…’ and submitted
that signatories to the Treaty are bound to depict a sense of unanimity
before a decision is made and that this is the only manner in which
consensus can be arrived at. He concluded that it is pertinent to have
unanimity of all Partner States in decision making.
11 Submissions on behalf of the East African Law Society
[62] Mr. Deya, Counsel for the EALS acknowledged the East African Council of
Ministers as the policy making body of the Community. He noted that
increased integration under the Community has faced challenges of ever
complex negotiations with notable differences arising between policies of
Partner States and the Community’s ambitions of integration. He saw the
principle of variable geometry provided for under Article 7(1) (e) as
envisaging flexibility in the integration process and allowing progression
in the East African Community activities by some Partner States and not all.
He pointed out that due to the requirement of consensus as well as the
necessity of quorum in the decision-making processes of the Organs of the
Community, it has been implied that application of the principle of variable
geometry may be contestable and that the principle cannot be relied on to
quicken the process of integration since such decisions can be vetoed and
challenged on the ground that they are not consistent with the Community
Protocols.
[63] Counsel for the EALS sought to borrow a leaf from comparable
institutions outside the East African Community to show how the principle of
variable geometry has been applied there. In this connection, he noted from
the glossary of the official European Union website at: www.europa.eu that
variable geometry is described as a term used to mean a method of
differentiated integration which acknowledges that there are irreconcilable
differences within the integration structure and, therefore, allows for a
permanent separation between a group of Partner States and a number of less
developed integration units. He suggested that such differences might be
founded on aspects related to different sizes, different priorities,
different levels of political development, and differences in economic
development, culture and language which make it difficult for members to
meet the criteria set for membership at the same speeds and depths, this
resulting in either deeper integration or making use of ‘opt-out’ clauses in
certain areas. He submitted that variable geometry connotes an endorsement
of a ‘flexible and pragmatic approach’ to integration by States at different
paces depending on their various determinants. He pointed out that the level
of a country’s commitment to the integration process is determined by the
depth of its interest and that variable geometry applies where there is a
lack of commonality of interests and values by the contracting parties who
seek to deepen their co-operation and promote flexibility in decision making
and co-operation.
[64] It was the contention of Counsel that agreement on enhanced
co-operation operates as multi-literal agreements within the general
principles of the original Treaty and that any member is free to decide
whether or not to join initiatives beyond the original Treaty. In this
connection, he pointed out that in instances where the principle of variable
geometry has been applied, it accommodates countries which feel that their
interests were not being served in certain situations whereas those who wish
to pursue deeper international integration through multi-lateral agreements
in that area could do so within the framework of the original Treaty.
[65] He referred the Court to instances where variable geometry was applied
in Europe such as The European Economic and Monetary Union, The Schengen
Agreement and the European Defence Initiative.
[66] Counsel noted that at the heart of variable geometry in Europe lies the
distinction between:-
(a) The core, which includes what all members have in common in their
integration programmes;
(b) The periphery, which contains those policies that are shared by some but
not by all members of the European Community.
[67] He submitted that variable geometry does not require all members to
participate in all areas of integration and that it should not be
interpreted to mean restricted membership.
[68] Turning to the African continent, Counsel for the EALS pointed out that
economic integration in Africa is moving the various economic blocs (pillars)
toward an African Economic Community (AEC). He noted, for instance, that the
Treaty of the Common Market for East and Southern Africa (COMESA) has two
important innovations. Firstly, the concept of multiple speed or variable
geometry provides for a group of countries to move faster in the regional
economic integration process than some of the other countries or at the
policy level, like at Southern Africa Development Community (SADC). He
further pointed out that the preamble to the COMESA Treaty states that the
parties were convinced that co-operation at sub-regional levels in all
fields of human endeavour will raise the standards of living for the African
Peoples, maintain and enhance economic stability, foster close and peaceful
relations among African States and accelerate the successive stages in the
realization of the proposed African Economic Community and Political Union.
[69] In the case of SADC, Counsel for the EALS noted that its common agenda
are based on various principles, e.g. development orientation; subsidiarity;
market integration and development, facilitation and promotion of trade and
investment; and variable geometry. He added that SADC has also implemented a
Free Trade Area (the Southern African Customs Union – SACU) and that under
the protocol establishing the SACU, Angola, the Democratic Republic of Congo
and Malawi chose to opt out of this arrangement.
[70] Reverting to the East African Community, Counsel for the EALS noted
that neither the Treaty nor the various protocols define consensus. Relying
on Black’s Law Dictionary, 8th Edition, he contended that general consent
when reached without objection is equivalent to consensus and that this
implies that all parties are in agreement. He saw consensus as a decision
making process that fully utilized the resources of the group and
acknowledged that it is more difficult and time-consuming to reach than a
democratic vote or an autocratic decision and complete unanimity is rarely
possible.
[71] He invited this Court to apply Article 31 (1) of the Vienna Convention
on the Law of Treaties in interpreting the principle of variable geometry,
i.e. interpret the principle in good faith in accordance with the ordinary
meaning to be given to the terms of the Treaty and in the light of its
object and purpose. He urged the Court to apply the principle of harmonious
construction in interpreting the principles of variable geometry and
consensus in decision making. It was his submission that there is no
conflict in application of the principle of variable geometry and the
requirement for consensus in decision making. He pointed out that the
requirement for consensus in decision-making has been stressed in the Treaty
considering the history of the former Community which collapsed, inter alia,
as a result of lack of political will and mistrust. He submitted that in the
short-term consensus in decision making is necessary in order to get all
Partner States on board in the integration process.
[72] It was, however, his contention that in regional organizations,
decision-making by application of variable geometry should be the exception
rather than the norm.
[73] Counsel for the EALS further submitted that the principle of variable
geometry applies to guide the integration process, the requirement of
consensus in decision-making notwithstanding as in his view the requirement
of decision-making is not necessarily inconsistent with the principle of
variable geometry. He also urged this Court to advise the East African
Community to consider amending the Treaty and Protocols to provide for
application of the principle of variable geometry in specific areas of
activity.
[74] As to whether the requirement of consensus in decision-making
necessitates unanimity of the Partner States, Counsel for the East African
Law Society submitted that the words ‘unanimity’ and ‘consensus’
substantively mean the same thing.
CONSIDERATION OF THE ISSUES RAISED IN THE APPLICATION AND OPINION OF THE
COURT
12 Our Opinion on issues (i) and (ii), namely:-
(i) Whether the principle of variable geometry is in harmony with the
requirement on consensus in decision-making;
(ii) Whether the principle of variable geometry can apply to guide the
integration process, the requirement on consensus in decision-making
notwithstanding;
[75] Is as follows:-
[76] The principle of variable geometry is defined in Article 1 of the
Treaty to mean ‘… the principle of flexibility which allows for progression
in co-operation among a sub-group of members in a larger integration scheme
in a variety of areas and at different speeds.’
[77] It is one of eight Operational Principles of the Community provided
under Article 7 as ‘The Principles which shall govern the practical
achievement of the objectives of the Community….” Article 7(1) (e) describes
it as “…the Principle of variable geometry which allows for progression in
co-operation among groups within the Community for wider integration schemes
in various fields and at different speeds.’
[78] The term consensus is not defined in the Treaty. We have, therefore,
sought guidance from sources outside it.
[79] Wikipedia, The Free Encyclopedia, provides that ‘Consensus has two
common meanings. One is a general agreement among the members of a given
group or community, each of which exercises some discretion in decision
making and follow-up action. The other is a theory and practice of getting
such agreements. Achieving consensus requires serious treatment of every
group member’s considered opinion. Once a decision is made it is important
to trust in members’ discretion in follow-up action. In the ideal case,
those who wish to take up some action want to hear those who oppose it,
because they count on the fact that the ensuing debate will improve the
consensus. In theory, action without resolution of considered opposition
will be rare and done with attention to minimize damage to relationships.’ [Source:
http://en.wikipedia.org/wiki/consensus].
[80] We have also, in interpreting the principle of variable geometry and
the requirement of consensus in decision-making as used in the Treaty sought
guidance from the Vienna Convention on the Law of Treaties which provides,
vide Article 31, inter alia, as follows:
[81] ‘Article 31: General rule of interpretation
1. A Treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the Treaty in their context and
in the light of its object and purpose.’
[82] Having carefully considered the submissions of learned Counsel, the
above definitions and interpretation guidelines, we opine as follows:-
Variable geometry is in harmony with the requirement for consensus in
decision-making if applied appropriately.
[83] Consensus as applied in the Treaty and Protocols referred to in this
Application is purely and simply a decision-making mechanism in Summit,
Council and in the other executive organs of the Community while variable
geometry as used therein is a strategy for implementation.
[84] It is the Court’s opinion that decisions in any of the executive organs
of the Community are made with two aspects in mind. The first aspect is that
a decision is made on the basis of it being consistent with the objectives
of the Treaty and desirable at the time. At this level the basis of making
the decision is consensus.
[85] The second aspect is the implementation of what has been decided as, in
our view, a decision that will not be implemented is not worth the paper on
which it is written.
[86] With this aspect of implementation comes the practical realities such
as the vital national interests, the negotiations, the give and take and
consultations that each Partner State will inevitably have to take care of
for the good of the Partner State and ultimately that of the Community.
[87] Consensus in making the decision will then be tailored to the elements
just above highlighted and a suitable operational principle, which may well
be variable geometry, will be agreed upon to govern the practical
implementation of that particular decision. Partner States may agree on
implementation at different speeds due to different readiness levels or
different priorities, some may choose to opt out of implementation
altogether due to national realities, yet others may decide to ‘opt out’ and
at a future time they will ‘opt in’. All these will be agreed by the Partner
States, by consensus.
[88] As submitted by Counsel for the Community as well as Counsel for EALS,
the principle of variable geometry has been internationally applied to
deepen integration. Examples include:-
(a) SADC:
Under the Protocol establishing the Southern African Customs Union within
the Free Trade Area of SADC, the Republic of Angola, The Democratic Republic
of Congo and The Republic of Malawi chose to opt out of the Customs Union.
(b) Schengen
The 1985 Schengen Agreement, and the 1990 Schengen Convention which
supplemented it, relate to the free movement of persons among the
signatories and the Schengen States. Since the freedom of movement is
guaranteed within the Union for all persons who are nationals of an EU
Member State, it related to the intra-union movement of non-EU nationals
wishing to move among Member States.
The Schengen States have also agreed to establish common controls at their
external borders and adopted a common visa policy. For the signatories, the
effect was to allow the removal of all internal border controls on the
movement of persons for both EU nationals and non-EU nations. It implements
complete freedom of movement of all persons residing in or admitted to a
Schengen State. The territory without internal borders is known as the
Schengen Area.
Of the 15 “old” Members States at the time of negotiations, Ireland and the
United Kingdom were not willing to remove controls on the intra-EU movement
of non-EU nationals, and they retained their national border controls on the
movement of persons from other EU member States.
(c) Monetary Union
Provision for a Monetary Union was formulated in the Maastricht Treaty on
European Union of 1992 though the agreement was preceeded by three stages
and the initial Monetary Union did not come into effect until 1 January
1999. The European Economic and Monetary Union (EMU) involve adoption of a
common currency (the Euro) and a common monetary policy administered by a
common central bank (the European Central Bank or ECB). Member States that
are not members of EMU retain their own currencies and central banks. At the
time of its formation 12 of the 15 Member States opted in; the three member
states that did not sign were the United Kingdom, Ireland and Denmark.
Member States opting in to the EMU must meet specified conditions. They must
meet a detailed set of convergence criteria and they must have their
national currency in the European Exchange Rate Mechanism (ERM II) for two
years.
(d) EU Social Policy agreement.
A third example in the EU is the 1991 Social Policy Agreement. It set out
the policy objectives for the 1889 Social Charter relating to employment and
working conditions and other social policies. 11 of the then 12 Member
States signed this agreement. The United Kingdom opted out (or, more
accurately, did not opt in). Following the election of a new Labour
Government in 1997, the United Kingdom announced that it would drop its
opt-out. The Social Policy Agreement was then incorporated into the Social
Chapter of the EC Treaty through the Treaty of Amsterdam.
[89] Looking at the three examples together, one feature is that, at the
time of their formation, they involved different subsets of the members of
the EU. The UK is the only country that opted out of all three. Another
feature is that all involved the adoption of common policies in one policy
area.
[Source: “The Variable Geometry Approach to International Economic
Integration” by Peter Lloyd, University of Melbourne].
[90] The Principle has also been incorporated in Integration Treaties. A
case in point is its incorporation in the Treaty of the European Union by
virtue of Article 43 under the title “Provisions on Enhanced Cooperation.”
We quote a few excerpts to illustrate this incorporation:-
‘Article 43: Member states which intend to establish enhanced cooperation
between themselves may make use of the institutions, procedures and
mechanisms laid down by this Treaty and by the Treaty establishing the
European Community provided that the proposed cooperation:
(a) aimes at furthering the objectives of the Union and of the Community, at
protecting and serving their interests and at reinforcing their process of
integration;
(b) respects said Treaties and the single institutional framework of the
Union; does not constitute a barrier to or discrimination in trade between
the Member States and does not distort competition between them;
(c) respects the competences, rights and obligations of those member States
which do not participate therein.’
‘(i) Article 43(b)
When enhanced cooperation is being established, it shall be open to all
member States. It shall also be open to them at any time, in accordance with
Article 27e and 40b of this Treaty and with Article 11a of the Treaty
Establishing the European Community, subject to compliance with the basic
decision and with the decisions taken within that framework. The Commission
and the member States participating in enhanced cooperation shall ensure
that as many Member States as possible are encouraged to take part.’
[91] The Partner States of the East African Community may wish to study, and
possibly emulate some of the examples of application of these concepts to
deepen integration.
[92] 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…’.
[93] 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.
[94] It was also suggested by a number of learned Counsel, and the Court
agrees, that variable geometry should be resorted to as an exception, not as
the rule, as indeed institutionalized flexibility might lead to break-up of
the Community or its transformation into “a mere free trade area”. Even in
the European Union where its application is incorporated into law Article
43b of that law provides conditions precedent for it to apply. It reads, “…Enhanced
cooperation may be undertaken only as a last resort, when it has been
established within the Council that the objectives of such cooperation
cannot be attained within a reasonable period by applying relevant
provisions of the Treaty.”
[95] Also, in applying the principle, the Community might wish to borrow a
leaf from the European Union “core and periphery” approach which requires
that Partner States agree on certain areas over which the principle can
apply and areas over which it cannot.
[96] Difficulties arise, in the Court’s view, where consensus in making a
decision is equated and/or juxtaposed to consensus in implementing it and is
debated as one and the same issue in the process of decision-making, as
Partner States will hesitate to take a decision whose simultaneous
implementation they may not undertake due to their respective practical
realities.
[97] It is the Court’s opinion, and we so advise, therefore, that for
avoidance of internal conflict and a possible emergence of mistrust among
the Partner States, and in accordance with the Treaty provisions above
discussed, decisions should be taken with the above two aspects in mind and
simultaneous implementation thereof need not be forced upon an unready
Partner just as refusal or delay of implementation thereof need not be used
to block a ready Partner or Partners.
[98] 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.
What seems to cause this hesitation is the requirement, inherent in
decisions made, for simultaneous implementation by all Partner States.
[99] Simultaneous implementation is impracticable in some circumstances and
Partner States cannot be expected to operate within such strait jacket or
one size fits all situations. Variable geometry is, therefore, intended, and
actually allows, those Partner States who cannot implement a particular
decision simultaneously or immediately to implement it at a suitable certain
future time or simply at a different speed while at the same time allowing
those who are able to implement immediately to do so.
[100] As Tanaka J put it in ICJ Reports 1966, page 6 “… to treat unequal
matters differently according to their inequality is not only permitted but
required”.
[101] The upshot of the Court’s above analysis of the concepts of consensus
in decision-making and variable geometry is that consensus is fine at policy
level. Take as an example the need for a superhighway linking Tanzania,
Kenya, Uganda, Rwanda and Burundi. The mutual benefits of such a joint
project are immediately clear to all the Partner States and none would
require much persuasion to sign up for it. Since the project is a policy
issue in line with objectives of the East African Community Treaty, there
must be consensus at policy level for all Partner States to endorse the
project. The policy having been agreed upon by consensus, the programme of
implementation of the policy may, however, be agreed upon by the application
of the principle of variable geometry bearing in mind the capacity of each
Partner State to implement its portion of the task of constructing the
superhighway within a given time frame. The Partner States may agree, for
instance, on a 5-year time-frame for all portions of the superhighway to be
completed. Two Partner States with the ability to start in the first year
may go ahead and start; a third partner State may be able to start its
portion in the second year; while the remaining two Partner States may be
able to start only from the third year. In this scenario, both concepts of
consensus and variable geometry are at play in the same decision, each
playing its key role i.e. consensus in deciding to build the highway and
variable geometry in deciding the implementation of the program.
[102] Another illustration may be taken from a project for modernization of
the fishing industries in Kenya’s and Tanzania’s exclusive economic zones
within the Indian Ocean. The project may not be of immediate or direct
interest to the land-locked Partner States within the East African Community.
Kenya and Tanzania may enter into bilateral arrangements to go into the
project as a joint venture, in the context of the objectives of the
Community with full support of the non-participating land-locked Partner
States.
13 Our Opinion on issue (iii), namely:-
Whether the requirement of consensus in decision-making implies unanimity of
the Partner States.
[103] Wikipedia defines unanimity as follows:-
‘Unanimity is complete agreement by everyone. When unanimous, everybody is
of same mind and acting together as one. Many groups consider unanimous
decisions a sign of agreement, solidarity, and unity. Unanimity may be
assumed explicitly after a unanimous vote or implicitly by a lack of
objections.’ [Source: http://en.wikipedia.org/wiki/unanimity].
[104] Achieving consensus by unanimity is a desirable ideal but, in our
opinion, rarely possible.
[105] Consensus, and not unanimity, is provided for in the Treaty and
Protocol on Decision Making as the basis for decision-making. Articles
12(3), 15(4) of the Treaty, Article 2 of the Protocol on Decision Making and
Rule 13 of the Rules of Procedure of the various organs are all clear on
this. The definition of both terms leaves us in no doubt that consensus does
not mean unanimity.
[106] Equating consensus to unanimity in decision making in the executive
organs of the Community is a procedure that has obtained for years and it
would appear from the instant Application that all has not been well.
[107] We observe that, as integration deepens, different Partner States
continue to have differing attachments to certain policies and their
citizens continue to have differing passions towards such policies. In that
environment, understandably, choices become tougher, decisions become harder
and the perceived unanimity enjoyed in decision making over the years begins
to be less forthcoming. This in our view explains the emergence of this
debate at this particular time.
[108] Implying that consensus in decision-making as used in the Treaty means
unanimity of Partner States is a mere perception based on the said practice
as we have shown. Such perception is, in our view, neither supported by the
Treaty nor the definitions surveyed.
[109] As stated above, consensus as it stands in the Treaty, the Protocol on
Decision Making and the Rules of Procedure of the various organs, is
undefined and its application is unclear. Articles 12 (3), in 15 (4) and 148
of the Treaty, Rule 13 of the of Rules of Procedure for the Summit of the
Heads of State or Government, Rule 13 Rules of Procedure for the Council of
Ministers, Rule 13 of the Rules of Procedure for the Coordination Committees,
Article 2 of the Protocol on decision making simply state “consensus” plain
and naked.
[110] It is not defined in terms of unanimous, absolute, qualified or simple
majority. It is not defined in relation to differing weights of particular
decisions. It is not defined in relation to the various executive organs of
the Community according to their hierarchy. If anybody was to pose the
question “How is consensus applied under the Treaty and Protocol?” we are
afraid the answer would be guesswork. We were not shown any answer and we
found none. Little wonder therefore that this vacuum was filled by unanimity.
Consequently, the Court is of the opinion that the cure for this defect does
not lie in equating it, from the blue, with unanimity. Rather it lies in
amending the relevant instruments.
[111] Further, it is our considered opinion, from the above discourse, that
consensus does not mean unanimity either from ordinary English meanings or
from legal dictionaries and it does not imply unanimity when used in the
Treaty, the Protocol on Decision Making or the Rules of Procedure of the
various organs. They are two different concepts.
(a) Whether Article 15(3) of the Treaty implies that consensus is synonymous
with unanimity
[112] Article 15(3) was raised during submissions as evidence that consensus
as used in the Treaty refers to unanimity. The Article provides that: “…A
member of the Council who is the leader of his or her Partner State’s
delegation to a meeting of the Council, may record his or her objection to a
proposal submitted for the decision of the Council and, if any such
objection is recorded, the Council shall not proceed with the proposal and
shall unless the objection is withdrawn refer the matter to the Summit for
decision.”
[113] With due respect, this Court finds Article 15(3) to be a specific
provision on how an objection in the Council of Ministers is handled.
Suffice it to state that the position of the Treaty as we construe it is
that either such objection is withdrawn and a decision is taken in Council
or it is not withdrawn and the Council takes a decision to refer the matter
to the Summit ‘for decision’. In the Summit, that decision will be made by
consensus in accordance with Article 12 (3). Either way a decision will be
made, by a competent organ of the Community, by consensus.
[114] The import of Article 15 (3), therefore, in the Court’s view, is to
provide the above recourse only and neither means nor implies that consensus
is synonymous with unanimity.
(b) Whether the exception to consensus created by Article 148 of the Treaty
implies unanimity
[115] During the hearing, the exception created by Article 148 was raised as
evidence that consensus as used in the Treaty actually refers to unanimity
because of the title and content of the said Article which reads:
“Exception to the Rules of Consensus Notwithstanding the provisions of
paragraph 3 of Article 12 of this Treaty, the views of the Partner State
being considered for suspension or expulsion shall not count, for the
purposes of reaching a decision under the provisions of Articles 146 and 147
of this Treaty.”
[116] The Court, with due respect, does not agree with this interpretation.
The import of Article 148 is that consensus will be achieved as required,
but for purposes of achieving that consensus the “views” of the Partner
State being expelled or suspended will not count.
[117] In other words, all Partner States, except the Partner State being
sanctioned, will participate in reaching the decision. And this is, in the
Court’s view, irrespective of whether the views of the Partner State being
sanctioned are supportive of the sanction or not. It does not imply even
here, that consensus is synonymous with unanimity and we advise accordingly.
(c) The reported amendment of the Treaty
[118] It was reported during submissions that there is a parallel process of
amending the Treaty to take care of the issue of the decision-making process
in the Community’s executive organs. In particular the United Republic of
Tanzania and the Republic of Rwanda submitted that this was purely a policy
matter to be addressed by the Council rather than the Court; and that this
application was not only redundant but also subjudice and an abuse of Court
process.
[119] The Court was not given any evidence, and it did not find any, that
the two processes might be inconsistent or incompatible with each other and
that the Application is an abuse of the process of this Court. The Court
considered the above submission and is of the view that the process of
amending the Treaty reported to be underway in the Executive Organs of the
Community, as well as this Application for an Advisory Opinion are perfectly
compatible. The application was brought to this court on a directive of the
Council, the very organ reported to be overseeing the said amendment. It was
properly brought and the Court has jurisdiction. It is our considered view
also that the reported amendment process is not “subjudice” as the term
refers to a Court process that is pending “before the Court or Judge for
determination” (see Black’s Law Dictionary, 8th Edition, page 1466).
CONCLUSION:
[120] In conclusion we answer issues (i) and (ii) in the affirmative and
issue (iii) in the negative.
We advise accordingly.
Delivered at Arusha, Tanzania this…………………Day of …………………., 2009.
|
|