The East African Court of Justice says there is nothing wrong with some member countries moving faster than others on regional integration.

This means that the EAC Common Market might come into force much earlier than anticipated, without “pending issues” necessarily being resolved first.

In a ruling on an application by the East African Community Council of Ministers, through the Community’s counsel, the First Instance Division of the Court said such flexibility is consistent with the Treaty on the Establishment of the EAC.

The council comprises member country ministers in charge of the EAC affairs from Kenya, Uganda, Tanzania, Rwanda and Burundi.

It had formally sought the court’s opinion on whether the operational principle of variable geometry, which is provided for in the Treaty on the Establishment of the EAC, contradicts the requirement that decisions of the EAC organs should be by consensus.

Variable geometry is a principle in regional integration whereby some community members can move faster than others on some matters.

In an opinion delivered by the principal judge of the First Instance Division, Justice Johnson Busingye of Rwanda, the East African Court of Justice said the operational principle of variable geometry is in harmony with the requirement of consensus in decision-making.

The court also said the principle of variable geometry can guide the regional integration process, the requirement of consensus in decision-making notwithstanding.

The court said “consensus is simply a decision-making mechanism, while variable geometry is a strategy for implementation.”

They, however, warned the partner states that variable geometry should be the exception, rather than the rule.

The court’s ruling comes at a time when there are differences between Kenya, Uganda, Rwanda and Burundi on one hand, and Tanzania on the other, over three key provisions of the Common Market protocol.

These are access to land, the right of establishment and permanent residence, and use of national identity cards as travel documents.

On April 29, EAC heads of state met in Arusha and directed that pending issues in the Common Market protocol be agreed on as soon as possible so that the pact can be signed in November.

According to the integration process calendar, the Common Market, which is the second phase of regional integration after the Customs Union, will come into force by January next year.

However, the signing of the Common Market protocol has had to be postponed twice due to delays in negotiation. Initially, the signing was planned for December last year. This was pushed to last month, which also never materialised.

At the end of the heads of state summit in Arusha last month, Dr Juma Mwapachu, the EAC Secretary-General, alluded to the Community’s possible application of variable geometry.

If there is no consensus on the other pending issues by November, chances are high that the EAC Secretariat might invoke the variable geometry principle, leading to the signing of the protocol.

But legal experts, led by the East Africa Law Society, have warned that such flexibility, which is mainly used as a political tool, should be applied with great care so that it does not end up being counter-productive.