|ADVISORY OPINION NO. 1 OF 2008
Consensus- The principle of variable geometry- Unanimity- whether variable geometry could be applied to guide the community’s integration process- whether consensus in decision-making implied unanimity.
|East African Community
|Consensus , Unanimity , Variable geometry
|Article 1 , Article 12 , Article 126 , Article 14 , Article 146 , Article 147 , Article 148 , Article 15 , Article 2 , Article 23 , Article 27 , Article 36 , Article 38 , Article 6 , Article 7 , Articles of EAC Treaty , EAC Protocol on Decision Making (Article 2) , Maastricht Treaty On European Union 1992 (Articles 11, 27, 40, 43) , North Atlantic Treaty Organization Treaty (Article 10) , Schengen Convention 1990 , Vienna Convention on the Law of Treaties (Article 31)
First Instance Judgment
1. Variable geometry is one of eight Operational Principles of the Community provided under Article 7 that govern the practical achievement of the objectives of the Community. It is a strategy for implementation that is in harmony with the requirement for consensus in decision-making if applied appropriately. It is not a decision-making tool in itself but can be comfortably applied to guide the integration process. However, it should be resorted to as an exception, not as the rule.
2. In applying variable geometry, the “core” and periphery” approach should be taken into account. Partner States can agree on areas over which the principle can and cannot apply. Simultaneous implementation need not be forced upon a Partner State that is not ready just as a refusal or delay of implementation need not be used to block a Partner State or Partner States that are ready. 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.
3. While achieving consensus by unanimity is a desirable ideal but, it is rarely possible. Implying that consensus in decision-making as used in the Treaty means unanimity of Partner States is a mere perception based on practice. Consensus, and not unanimity, is provided for in the Treaty and Protocol on Decision Making as the basis for decision-making. Consensus is not defined in the Treaty, the Protocol on Decision Making and the Rules of Procedure of the various organs and its application is unclear. It does not imply unanimity as these are two different concepts. The cure for this defect does not lie in equating it, from the blue, with unanimity. Rather it lies in amending the relevant instruments.
4. Article 15 (3) of the Treaty provides how an objection in the Council of Ministers should be handled. It does not mean nor imply that consensus is synonymous with unanimity.
5. Under Article 148 consensus will be achieved as required, but for purposes of achieving that consensus the “views” of the Partner State being expelled or suspended would not count. All Partner States, except the Partner State being sanctioned, would participate in reaching the decision, irrespective of whether the views of the Partner State being sanctioned are supportive of the sanction or not. The Article does not imply that consensus is synonymous with unanimity.
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|April 24, 2009