the right to secession: a case study of mombasa republican council in kenya
TRANSCRIPT
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THE RIGHT TO SECESSION: A CASE STUDY
OF MOMBASA REPUBLICAN COUNCIL IN
KENYA
BY J. D MALOWA
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Contents
CHAPTER ONE ........................................................................................................................................... 4
General Introduction ..................................................................................................................................... 4
1.1 Introduction ....................................................................................................................................... 4
1.2 Background to the study ................................................................................................................... 4
1.3 Problem statement ................................................................................................................................... 8
1.4 Literature review ............................................................................................................................... 8
1.5 Research question ................................................................................................................................. 10
1.6 Research objectives ......................................................................................................................... 10
1.7 Conceptual clarification. ....................................................................................................................... 11
1.8 Research methodology .......................................................................................................................... 11
1.9 Chapter breakdown ............................................................................................................................... 11
1.10 Conclusion. ......................................................................................................................................... 12
CHAPTER TWO ........................................................................................................................................ 13
Law on the Right to Secession at the International and National Level. .................................................... 13
2.0 Introduction ........................................................................................................................................... 13
2.1 The International Law on secession ...................................................................................................... 13
2.2 The Law on the Right to Secession in Kenya ....................................................................................... 19
2.1.1 The constitutional provision for secession ..................................................................................... 20
2.1.2 The legal process of secession ....................................................................................................... 20
2.1.2.1 Procedure One ......................................................................................................................... 20
2.1.2.2 Procedure Two ........................................................................................................................ 22
2.3 Conclusion ............................................................................................................................................ 23
CHAPTER THREE .................................................................................................................................... 24
The Legal Challenges That the MRC Is Facing In Realizing the Right to Secession in Kenya. ................ 24
3.1 Introduction. .......................................................................................................................................... 24
3.2 Legal challenges that the MRC faces under the law. ............................................................................ 24
3.2.1 Are the Inhabitants of the coastal part of Kenya a “People”? ........................................................ 26
3.2.2 The MRC’s Ability to Restore the Previous Sovereignty of the Coastal Region .......................... 29
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3.2.3 Secession as a Legal Remedy for the Kenyan Coat People To Exercise The Right To Self
Determination. ........................................................................................................................................ 30
3.2.4 In the Absence of a Right to Secede Is Secession Still Valid? ...................................................... 31
3.3 Conclusion ............................................................................................................................................ 32
4.1 The Status of Kosovo’s Unilateral under International Law. ............................................................... 34
4.2 Jurisprudence on State Practice and Secession In Relation To Kosovo’s Secession. ........................... 37
4.2 Recognition of Kosovo. ........................................................................................................................ 39
4.4 Conclusion ............................................................................................................................................ 40
CHAPTER FIVE: ....................................................................................................................................... 41
Conclusion and Recommendations. ............................................................................................................ 41
5.1 Introduction. ...................................................................................................................................... 41
5.2 Conclusion ............................................................................................................................................ 41
5.3 Recommendations ................................................................................................................................. 43
Bibliography. .............................................................................................................................................. 45
List of International legal instruments. ................................................................................................... 45
List of books ........................................................................................................................................... 46
List of cases............................................................................................................................................. 49
List of journals and articles ..................................................................................................................... 49
Neto Aghostino, ‘The government should listen to Coast’s MRC’ the star newspaper, Saturday, 28 April,
2012. ........................................................................................................................................................... 50
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CHAPTER ONE
General Introduction
1.1 Introduction
The right to self-determination has become popular where some regions who feel aggrieved tend
to push for secession. Ideally, this amounts to a group becoming or pushing for being
independent from the larger group that it belongs to. The United Nations International Covenant
on Civil and Political Rights and the International Covenant on Economic, Social and Cultural
Rights (1966), both which Kenya has ratified reads: “All peoples have the right of self-
determination. By virtue of that right they freely determine their political status and freely pursue
their economic, social and cultural development.” 1 This right forms Article 1 of both these the
two major human rights conventions. The Constitution of Kenya2 further provides that, the
general rules of international law shall form part of the law of Kenya and that any treaty or
convention ratified by Kenya shall form part of the law of Kenya.
1.2 Background to the study
Centrifugal forces are threatening the integrity of plural societies. In Eastern Europe, Central
Asia, the Near East, and Sub-Saharan Africa, separatist movements with deadly weapons are
resisting the classical idea of e pluribus unum.3
1 United Nations International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (1966). Available at < http://www.globalgovernancewatch.org/human_rights/the-international-covenant-on-civil-and-political-rights > accessed on 24/4/2014. 2 The Constitution of Kenya, Art 2(5)(6). 3http://encyclopedia2.thefreedictionary.com/e+pluribus+unum
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Under the banner of self-determination, active campaigns for either full sovereignty or minority
rights now operate in more than sixty countries, one-third the total roster of nations. Each day the
political and ethnic dissonance continues to mount.
Kenya as a nation is not an exclusion to these campaigns the categorical pronouncement by the
proscribed Mombasa Republican Council (MRC) that Pwani Si Kenya (Coast Province is not
part of Kenya) has elicited varied reactions.4 This has been a product of variety of causes.
The bad experiences that the people and the champions of the well renowned Mombasa
Republican Council (MRC) live in, is inexcusable, for 50 years after independence. The same
Socio-economic status applies to sections of Northern Kenya, from Todonyang, illiret, Moite and
other parts of the region, in fact when you arrive in these parts of the country they ask you how
Kenya is doing.5
Various governments since Kenya got its independence in 1964 have been seen to neglect the
communities at the Kenyan coast. A good example to justify this neglect is the lack of action in
the part of the government against the human rights violations that the locals are subjected to by
the salt mining and manufacturing companies at the coast and most often experienced in the
recent times, the government forces.6
These violations have been highlighted in various Human Rights reports but no one is bothered.7
The number of squatters at the Coast and the number of citizens who have never realized the
4 Expatriates Forums in Kenya, The Law Allows MRC a Procedural Right to Secede, 13 May 2012. Available at < http://www.alloexpat.com/kenya_expat_forum/the-law-allows-mrc-a-procedural-right-to-secede-allafrica-t15934.html > accessed on 24/4/2014. 5 Neto Aghostino, ‘The government should listen to Coast’s MRC’ the star newspaper, Saturday, 28 April, 2012. 6 MO Makoloo, Kenya: Minorities, Indigenous Peoples and Ethnic Diversity. Available at < citizenshiprightsinafrica.org/docs/MRGKenyaReport-Makoloo.pdf > accessed on 24/4/2014. 7 The Truth Justice and Reconciliation Report, 2013. Available at < http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&ved=0CEoQFjAE&url=http%3A%2F%2Fwww.acordinternational.org%2Fsilo%2Ffiles%2Fkenya-tjrc-summary-report-aug-2013.pdf&ei=xSVfU6i5H8b6PK3mgfgO&usg=AFQjCNH3I5M2q-
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right to property makes the Kenyan constitution sound weird as its aspirations are barely met if
the people are really to be sovereign. The Kenyan Constitution states that, the general rules of
international law shall form part of the law of Kenya and that any treaty or convention ratified by
Kenya shall form part of the law of Kenya under this Constitution.8 Kenya has ratified the
International Covenant on Civil and Political rights, as well as the International Covenant on
Economic and Social Cultural Rights, both these conventions recognize the right to self-
determination as a fundamental and inalienable human right. This right forms Article 1 of both
these the two major human rights instruments because of its importance to the international order
and the protection of individual rights.9 The right to self-determination is therefore a collective
right that all people have to determine their destinies.10 This right therefore entitles them to three
basic things that also amount to a component of the sovereignty.
These include the right to freely decide their political status, the right to freely pursue their
economic, social and cultural development, the right to freely dispose of their natural wealth and
resources.
The right to self-determination is therefore a right held by the people rather than the rights held
by the government alone.11 The right of self-determination in regard to the question of
membership in a state thus means: whenever the inhabitants of a particular territory, whether it
be a single village, a whole district, or a series of adjacent districts, make it known, by a freely
conducted plebiscite, that they no longer wish to remain united to the state to which they belong
XmbKd0_dvwgvDUmyqSNQ&sig2=OZ_qCVOVjN2ZSVxlm2fNTQ&bvm=bv.65397613,d.ZWU > accessed on 24/4/2014. 8 The Constitution of Kenya, 2010, Art 2(5)(6). 9 FR Araujo, Sovereignity, Human Rights and Self Determination, 2000. Available at < http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCgQFjAA&url=http%3A%2F%2Fir.lawnet.fordham.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1770%26context%3Dilj&ei=oSdfU6nTFcnHPML5gLgP&usg=AFQjCNFCByvKnIEeVCAFMQDDnFDMrrkbAw&sig2=ZBMRfpnzlqZx7Zx_oTBgJQ&bvm=bv.65397613,d.ZWU > accessed 25/4/2014. 10 Ibid. 11 Supra note 9.
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at the time, but wish either to form an independent state or to attach themselves to some other
state, their wishes are to be respected and complied with.
According to the Vienna Declaration, UN World Conference on Human Rights, 1993, the right
to self-determination and secession “shall not be construed as authorising or encouraging any
action which would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States conducting themselves in compliance with the
principle of equal rights and self-determination of peoples and thus possessed of a Government
representing the whole people belonging to the territory without distinction of any kind.” 12 As
far as sovereignty is concerned, this might be construed to have two distinguished kinds of self-
determination. The first being the internal self-determination (defined as the absence of
discrimination in political, administrative, and legal institutions, and the presence of special
group rights) in ‘just’ states that conduct themselves properly and the other one being
dismemberment of ‘unjust’ states that do not conduct themselves properly, where the oppressed
group has the right to rebel, and rebellion may lead to secession, and this may be represented as
an exercise of the right of national self-determination. Hence, a ‘just’ state which is governed
democratically and respects the human rights of all its peoples is entitled to respect for its
territorial integrity.
However, the right to secede is never an absolute right.13 Any group that wishes to secede, must
always act within the scope of the concretely provided for, procedures on how to secede. It
should also be noted that Separatists, like The Mombasa Republican Council (MRC), neither
dissolve existing institutions, like revolutionaries, nor recognize state authority, like disobedient.
12 Vienna Declaration, UN World Conference on Human Rights, 1993, available at < http://www.unesco.org/education/information/nfsunesco/pdf/VIENNA.PDF> 13 Gene H. Kizer Jr, The Right of Secession. Available at < http://www.bonniebluepublishing.com/The%20Right%20of%20Secession.htm > accessed on 24/4/2014.
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Instead, breakaway groups liberate themselves from the political ambit of the prevailing
government.
1.3 Problem statement
States are sovereign and the sovereign power of the state is always derived from the people and
is always exercised by the people either through their democratically elected representatives or
individually. The Kenyan constitution14 clearly justifies this position. However, it is not clear the
relationship between the states right to sovereignty and the people’s right to secession. This
subjects the two human rights goals to a grave conflict. It is also an issue that lacks clarity on
whether the right to secession is an absolute right or not. It is therefore imperative for an
exclusive study to be carried out to deal with this field of the two conflicting human rights goals
and objectives as it is one of the contemporary problems that Kenya, as a country faces currently.
It is imperative therefore that the study clearly tries to establish the extent to which these two
rights conflict or complement and to also try to establish the possible solutions between the two
competing rights in law, that is the states right to its sovereignty and that of its people and the
people’s right to secession.
The need for a clear separation and distinction between the two rights is therefore the driving
force and the motivating factor of this paper. The paper is written with strong belief that with this
in place, the coastal communities shall have made a bold step in their quest for an amicable
solution to their long time problems.
1.4 Literature review
The roes of international perceptions on ethnic, regional and political divisions as in the face of
state sovereignty is an issue that has not seen many scholars dedicates their works. These
14 The Constitution of Kenya, 2010 Article 1
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divisions however are not a novel to the African continent, insights being directed to Kenya,
Sudan and Somalia.
Barbara Harff and Ted Robert Gurr15 provide a comprehensive theoretical background for the
concept of ethnicity and ethnic conflicts. They characterize ethnic conflicts as “a manifestation
of the enduring tension between states that want to consolidate and expand their power and
ethnic groups that want to defend and promote their collective identity and interests”. 16 They see
a tension between the legal recognition of a state by the international community (which confers
upon a state almost the status of personhood) and the various ethnic minorities that comprise the
populations of these states. They however do not move to the extent of exclusively dealing with
this subject. They don’t look at the state sovereignty in relation to the right to secession.
Raymond C. Taras and Rajat Ganguly17 also dedicate their work in looking at the theoretical
frameworks of ethnic identity and ethnic conflict. Particularly relevant to this discussion is their
framing of the issue of ethno secessionist movements. They argue that, in the past, the
international community rarely heeded arguments for secession by various ethnic groups, but
that these calls are being listened to with a greater frequency today. In particular, they
demonstrate that a secessionist movement, in the eyes of others becomes “more worthy of
international support the most at-risk a minority is, the more serious its grievances are, and the
more realistic, flexible, and accommodating its demands have been over time.” They too fall
short of discussing this issue to the depth of clearly establishing its relationship with the right to
self-determination and sovereignty.
15 Harff, B., & Gurr, T. R. ‘Ethnic conflict in world politics’ (2nd ed.) (2004). Boulder, CO: Westview Press. 16 Harff, B., & Gurr, T. R. Ethnic conflict in world politics (2nd ed.). (2004)Boulder, CO: Westview Press, 17 17 Taras R.C. & Ganguly R. Understanding ethnic conflict: The international dimension. New York: Longman. (2002).
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Taras and Ganguly,18 on their part tackles this issue in a different perspective. The further the
argument that suggests that there may be a list of criteria the international community uses when
deciding whether or not to recognize an entity. They engage the work of a political philosopher,
Allen Buchanan, who identifies which cases of ethnic secessionism may be more likely to
receive international attention.
1.5 Research question
This research seeks to answer various questions.
i) The main question that this paper seeks to answer is to what extent should the right to
sovereignty and the right to secession be exercised?
ii) Are these two rights are absolute or they are tied upon some conditions?
iii) Are the right to secession and the right to sovereignty compliment and or compete?
1.6 Research objectives
This study shall clearly try to establish the extent to which these two rights, the right to secession
and the right to sovereignty, conflict and or complement. It shall also try to investigate into the
possible solutions available whenever these two rights compete, that is the states right to
sovereignty and the people’s right to secession.
The need for a clear separation and distinction between these two rights therefore becomes the
driving force behind this research. With this study in place, it is worth investing ones belief that
the coastal people, the Mombasa Republican Council, shall at least have seen the tip of the bag in
their quest for an amicable solution to their long term grievances.
18 Taras R.C and Ganguly R. Understanding ethnic conflict: The international dimension. New York: Longman. (2002).
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1.7 Conceptual clarification.
A right- A right specifies behavioural norms that govern relationships among people and
things.19 It favours the bearer over the addressee in disputes concerning the actions of either
party.20
Sovereignty- the state of being a country bestowed with the freedom and obligation to govern
itself.21
Cede- To give or to surrender to somebody control or the power to control something.22
Secession – is the process by which a group seeks to separate itself from the state to which it
belongs, and to create a new state on a part of the territory of that state. 23
1.8 Research methodology
The most preferred method for this study will be desktop analytical research of available
secondary sources; which includes books, journals, articles, internet, treaties, conventions and
case study.
1.9 Chapter breakdown
This study shall be taken in four chapters. Each chapter shall be dedicated to answering one or
more questions as regards to the topic of study.
Chapter one shall entail the introduction to the study, the background to the study, the literature
review, the problem statement, the research question and objectives, the theory behind the study,
the research methodology and the chapter preview.
19 Alexy, "Rights, Legal Reasoning and Rational Discourse," 144-45; Martin, A System of Rights, 24-50. 20 Wellman, A Theory of Rights, passim. 21 The concise oxford English dictionary 7th edition 22 ibid 23 James Crawford, 1997, ‘State Practice and International Law in Relation to Unilateral Secession.’ Acquired on February 1st, 2014 from: http://www.justice.gc.ca/en/news/nr/1997/factum/craw_ptl1 .html
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Chapter two shall look into the right to secession. It shall be looked at in the context of the law
that governs the realm of the right to secession at the domestic level and at the international
level. It will also assess whether the right is absolute or conditional.
Chapter three of this work shall asses the challenges that the MRC are likely to face in realizing
their right to secession. In looking into this, the chapter shall also look at how the right is related
to other rights.
Chapter four shall be composed of the comparative study done in comparison with Kosovo. This
shall be done by looking at how this realm of law is dealt with in other jurisdiction.
Chapter five of this work shall be the last and shall contain recommendations and conclusion.
1.10 Conclusion.
The right to self-determination is one that is granted by law on one hand and taken by the other.
The Mombasa Republican Council might really have had genuine reasons to affect their right to
secession, the law availed to them a lot of challenges in their course to realize their aspirations.
The government instead of affording them a chance to enjoy their right to secede prioritized
national security.
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CHAPTER TWO
Law on the Right to Secession at the International and National Level.
2.0 Introduction
The prevailing view espoused by many legal commentators24 is that international law neither
explicitly prohibits nor recognises the right of an ethnic group to unilaterally secede from a
parent State.25 The scenario poised by the Kenyan law does not differ from that of international
laws. The right is viewed as not an absolute right of individuals but rather a group right littered
with procedural barriers. This therefore necessitates the need to look at the operating laws as
regards to the right to secession at the domestic level and also at the international level.
2.1 The International Law on secession
The Constitution of Kenya categorically declares that, ‘the general rules of international law
shall form part of the law of Kenya and any treaty or convention ratified by Kenya shall form
part of the law of Kenya under this Constitution.’26 This forms the basis of international law
application in Kenya. This position is different from the previous position where any
international legal instrument had to be enacted as an act of Parliament before it could form part
of the laws of Kenya.
24 James Crawford The Creation of States in International Law (Second Edition, Oxford University Press, 2006) 5. 25 See Peter Malanczuk Akehurst’s Modern Introduction to International Law (7th Revised ed, Routledge, 1997) 78; Rein Müllerson International Law, Rights and Politics – Developments in Eastern Europe and the CIS (Routledge, 1994) 83; Bartram S Brown ‘Human Rights, Sovereignty, and the Final Status of Kosovo’ (2005) 80 Chi.-Kent l. Rev 235, 236; John Dugard and David Raič ‘The role of recognition in the law and practice of secession’ in Kohen, above n 2, 102; Antonello Tancredi ‘A normative ‘due process’ in the creation of States through secession’ in Kohen above n 2, 188; James Crawford The Creation of States in International Law (Second Edition, Oxford University Press, 2006) 5. 26 The Constitution of Kenya, art 2 (50 (6). Available at < http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=Const2010 > accessed on 25/4/2014.
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International law does not grant sub-state entities a general right to secede from their parent
states, nor does it prohibit secession.27 Exceptions to this supposed neutrality arise from the
international legal principles of territorial integrity and self-determination.28
The first common article that forms the basis the law on the right secession is echoed in the
International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR), the Declaration asserts that: ‘All peoples have
the right of self-determination.29 By virtue of that right they freely determine their political status
and freely pursue their economic, social and cultural development.’30
The UN Charter also requires that all members must respect the “principle of equal rights and
self-determination”.31 However, it is unclear whether this principle translates into a positive legal
right, given that “[not every statement of a political aim in the Charter can be regarded as
automatically creative of legal obligations”.32 Antonio Cassese argues that the debates preceding
the adoption of Article 1 (2) confirms that the principle of self-determination did not include the
right of a minority ethnic or national group to secede from a sovereign country.33
Many scholars have fostered the argument that this right is just a “remedial right.”34 The notion
of remedial secession assumes that international law provides a right to secession for peoples
subject to extreme persecution or unable to internally realize their right to self-determination.35
27 Thomas Franck, “Opinion Directed at Question 2 of the Reference,” in Self-Determination in International Law: Quebec and Lessons Learned, ed. Anne Bayefsky (Cambridge: Kluwer Law International, 2000), 83. 28 Marcelo Kohen, introduction to Secession: International Law Perspectives, ed. Marcelo Kohen (Cambridge: Cambridge University Press, 2006), 6–9. 29 United Nations International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (1966) 30 G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66, 67, U.N. Doc A/4684 (1960). 31 Charter of the United Nations (1945), Articles 55 and 1(2) <http://www.un.org/aboutun/charter/> accessed 22/02/2014. 32 Malcolm Shaw International Law (5th ed, Cambridge University Press, 2003) 226. 33 Antonio Cassese Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press, 1995), 42. 34 Buchanan, A. (2003) Justice, legitimacy and self-determination: moral foundations for international law. Oxford: Oxford University Press. 35 OAU Assembly Resolution 16(I) of July, 1964.
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This theory argues that if groups fall victim to ‘serious breaches of fundamental human and civil
rights’ through the ‘abuse of sovereign power,’ then international law recognizes the right of the
afflicted group to secede from the offending state.36
The legal sources for this right derive primarily from UN General Assembly (GA) resolutions,
although earlier sources from the inter-war period also exist.37 For instance, the Commission of
Rapporteurs in the League of Nations’ Aaland Islands dispute found that:
separation of a minority from the state of which it forms part . . . may only be considered
as an altogether exceptional solution, a last resort when the state lacks either the will or
the power to enact and apply just and effective guarantees.38
Despite thoroughly discouraging secession, the Commission nevertheless provided legal space
for a group to secede under extraordinary circumstances—where the state lacks the will or the
power to protect the group at issue.
Subsequent international legal developments retained this space for secession, and may have
widened it.39 The Declaration on Friendly Relations among States contains a provision, referred
to as a “safeguard clause,” that reiterates the principle of the territorial integrity of states, but
places a number of conditions on that affirmation. The Declaration implicitly authorizes the
violation of territorial integrity if states are not:
36 Antonello Tancredi, “A Normative ‘Due Process’ in the Creation of States through Secession,” in Secession: International Law Perspectives, ed. Marcelo Kohen (Cambridge: Cambridge University Press, 2006), 176. 37 Infra 38 The Aaland Islands Question: Report Submitted to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations Doc. B7.21/68/106, at 28 (1921). 39 1st and 2nd Optional Protocols to the International Covenant on Civil and Political Rights. Available at < http://www.ohchr.org/EN/ProfessionalInterest/Pages/2ndOPCCPR.aspx > accessed on 25/4/2014.
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in compliance with the principle of equal rights and self-determination of peoples as
described [in the Declaration] and thus possessed of a government representing the whole
people belonging to the territory without distinction as to race, creed or colour40
The same language was adopted, without the qualifications of “race, creed, or colour,” by the
UN World Conference on Human Rights in 1993.41 The conference replaced the words ‘race,
creed, or colour’ with the inclusive phrase ‘any kind.’42 The UN General Assembly affirmed the
modified text in 1995.43 An expansive interpretation of this provision suggests that if peoples
cannot exercise their right to self-determination internally because their government oppresses
them or does not represent them, then they may exercise that right externally through secession.
There is however an uncertainty as to which ‘peoples’ are entitled to benefit from the right of
self-determination and whether such a right is applicable to minorities within existing States.
Given that there are approximately 8,000 identifiable cultures and languages in the world,44 but
fewer than 200 states currently in existence, if every conceivable ethnic, religious or linguistic
subgroup claimed statehood, then in theory, there would be no limit to the fragmentation of
existing States.45
It should also be understood that the idea of self-determination is balanced by the principle of
integrity of existing states. According to the Vienna Declaration, UN World Conference on
Human Rights, 1993 which states thus:
40 G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, at 121, U.N. Doc. A/8018 (1970). 41 U.N. Doc. A/Conf.157/24 42 Ibid. 43 G.A. Res. 50/6 of 24 October 1995. 44 Rein Müllerson International Law, Rights and Politics – Developments in Eastern Europe and the CIS (Routledge, 1994) 83. 45 Bartram S Brown ‘Human Rights, Sovereignty, and the Final Status of Kosovo’ (2005) 80 Chi.-Kent l. Rev 235, 236.
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the right of self-determination shall not be construed as authorising or encouraging any
action which would dismember or impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States conducting themselves in compliance
with the principle of equal rights and self-determination of peoples and thus possessed of
a Government representing the whole people belonging to the territory without
distinction of any kind.46
State authorities however must respect the right of the state’s entire population to internal self-
determination and ‘[represent] the people . . . without distinction of any kind.’47 Therefore, if the
state excludes a group from the decision-making process it violates that group’s right to self-
determination and may activate a right to remedial secession.48
In an influential opinion, the Canadian Supreme Court found that a right to secession may arise
“under the principle of self-determination of people at international law where ‘a people’ . . . is
denied any meaningful exercise of its right to self-determination within the state of which it
forms a part.49
A problem arises in international law on the right toe secession and the right to self-
determination on the ambiguity of the term the ‘people’. Common Article 1 of the International
Covenant on Civil and Political Rights (“ICCPR”), and the International Covenant on Economic,
Social and Cultural Rights 1966 (“ICESCR”) state that “[a]ll peoples” have the right to self-
determination. However, Article 1 does not define “peoples”, while minorities are afforded
46 United Nations International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (1966) 47 G.A. Res. 50/6 of 24 October 1995. 48 Antonio Cassese argues that the right to secede requires both the denial of internal self-determination and human rights violations. 49 Reference, Re Secession of Quebec, 2 S.C.R. 217 (Can. 1998).
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specific protection under Article 27 of the ICCPR.50 The Supreme Court of Canada in the
Reference re Secession of Quebec (the “Quebec Case”) sought to clarify this ambiguity by
affirming that “a people” may include only a portion of the population of an existing state.51
The only international instruments which contain a reference, and even then only implicit, to a
right of secession are the 1970 Friendly Relations Declaration89 and the 1993 Vienna
Declaration.52 The Friendly Relations Declaration declares that “[b]y virtue of the principle of
equal rights and self-determination of peoples ... all peoples have the right freely to determine,
without external interference, their political status and to pursue their economic, social and
cultural development”. Antonio Cassese argues that this text suggests that secession may be
permitted when very stringent requirements have been met, namely, when “the central authorities
of a sovereign State persistently refuse to grant participatory rights to a people, grossly and
systematically violate their fundamental rights, and deny the possibility of a peaceful settlement
within the framework of the existing State”.53 Conversely, this declaration does not explicitly
recognise an unlimited right to secession, and instead affirms that this declaration “shall not be
construed as authorizing or encouraging any action which would dismember or impair, totally or
in part, the territorial integrity or political unity of sovereign and independent States”.54 While
50 Article 27 ICCPR states that “In those States in which ethnic, religious or linguistic minorities exist persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” 51 Reference re Secession of Quebec [1998] 2 S C R 217; 37 ILM, 1998, 1342, at para 124. In this case, the Supreme Court of Canada was asked to determine whether “there is a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally”. 52 1993 Vienna Declaration and Programme of Action, World Conference on Human Rights (1993) 32 ILM 1661, 1663 (25 June 1993) 53 Supra note 21, 119. 54 Article 6 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples. Para 7.
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recognising that “all peoples have the right of self-determination”, the Vienna Declaration also
discourages actions that would dismember or impair the territorial integrity of sovereign States.55
2.2 The Law on the Right to Secession in Kenya
The law on the right to secession in Kenya is one that is bugged with a lot of procedural
technicalities. The main source of the law on this right in Kenya is the constitution of Kenya. To
start with, the Kenyan Constitution provides, ‘The general rules of international law shall form
part of the law of Kenya. Any treaty or convention ratified by Kenya shall form part of the law
of Kenya under this Constitution.’56 It is therefore clear that the general rules of international law
do apply to Kenya as laws. One would therefore ask, in the event of a conflict between domestic
and international law on the matter, which should take precedence in Kenya? This calls for a
scrutiny of the hierarchy of the sources of law in Kenya.
That notwithstanding, indeed, the Preamble proclaims our desire “… to live in peace and unity as
one indivisible sovereign nation,”57 and also prohibits any constitutional amendment affecting
Kenya’s territory, without approval through a referendum.58
Besides endorsing the reality that the State is united by consent and not force, the fact that the
Constitution does not prohibit amendment to any matters, including of Kenya’s territory, means
that, implicitly, even if inadvertently, it recognises a procedural right to secession.
That right is not substantive, absolute, unilateral or unlimited. It is heavily qualified by the
imposition of procedural hurdles,59 allowing the Kenyan State to use the rule of law to control
the secession process through consensual negotiation.
55 Supra note 25, Principle 2, paragraph 3 56 The Constitution of Kenya, Art 2(5) (6). 57 The Constitution of Kenya, preamble, para 3. 58 The Constitution of Kenya, art 255(1) (b).
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2.1.1 The constitutional provision for secession
The Constitution of Kenya provides for a very concrete procedure on how to legally secede.
These procedures are clearly outlined under chapter sixteen of the constitution.60 During the
process of secession, the boundary of the current state is always altered. For this reason, the
constitution boldly provides that:
A proposed amendment to this Constitution shall be enacted in accordance with Article
256 or 257, and approved in accordance with clause (2) by a referendum, if the
amendment relates to any of the following matters— the territory of Kenya.61
Article 255 of the constitution therefore becomes the foundation of the laws regarding secession
in Kenya. It can thus be said to be the constitutional provision that opens up and legalizes any
secessionist ideas and promotes the right to self-determination in Kenya. It however subjects the
same to concrete procedures.62
2.1.2 The legal process of secession
The constitution provides for two procedures on how to initiate and carry out a legally
constitutional amendment that would vary the boundaries of Kenya as a state. 63
2.1.2.1 Procedure One
Article 257 of the Constitution provides that such an amendment as to lead to a secession ‘…
may be proposed by a popular initiative signed by at least one million voters.’64 This provision
therefore requires that a secessionist idea must be supported by at least one million registered
59 The procedures outlined under Articles 255, 256 1nd 257 of The Constitution of Kenya, 60 The Constitution of Kenya, Chapter on amendment of the constitution. 61 The Constitution of Kenya, art 255. 62 Procedures as outlined in Articles 256 and 257 of the Constitution of Kenya. 63 The Constitution of Kenya, art 256,257. 64 The Constitution of Kenya, art 257 (1).
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voters as at that time.65 The Constitution then lowers the par and provides that such an
amendment by popular initiative must not be in form of a draft bill. It permits such an
amendment to be in the form of a general suggestion.66 However, after garnering the required
number of signatures, that is 1000000, the promoters are required to formulate it into a bill.67
The promoters of the same secessionist idea, upon drafting it into a bill are then required to
deliver the draft Bill and the supporting signatures to the Independent Electoral and Boundaries
Commission (IEBC), which shall verify that the initiative is supported by at least one million
registered voters.68 The IEBC, upon being satisfied that all the prerequisites were indeed met,
shall submit the draft bill to all county assemblies for consideration for a period of three months
from the date of submission.69 Each county assembly upon approving the bill, the speaker of the
assembly shall submit the bill to the speakers of the two houses of parliament.70 If however the
bill is approved by a majority of the county assemblies, it shall be introduced in parliament
immediately.71
Such a bill as to alter the boundaries of Kenya, shall be deemed passed by parliament if
supported by a majority of members of both houses and shall then be forwarded to the president
for assent.72 If however the bill fails to gain the support of the majority if the members from both
houses of parliament leading to it not passed, the proposed amendment shall then be submitted to
the people for a referendum.73
65 Ibid. 66 The Constitution of Kenya, art 257 (2). 67 The Constitution of Kenya, art 257 (3). 68 The Constitution of Kenya, art 257 (4). 69 The Constitution of Kenya, art 257 (5). 70 Ibid, art 257 (6) 71 Ibid, art 257 (7) 72 Ibid, art 257 (8) (9) 73 Ibid, art 257 (10) (11).
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2.1.2.2 Procedure Two
Article 256 of the Constitution of Kenya provides for a second procedure to carrying out an
amendment that would alter the boundary of Kenya leading to secession. Such an amendment
may be introduced in any of the houses of Parliament and may not address any other matter apart
from consequential amendments to legislation arising from the bill.74
Article 256 further provides that such a bill for secession should be able to stay in each of the
houses for a period not less than 90 days before the same is brought for a second reading.75 A bill
of this nature is deemed passed by Parliament when it has been supported by not less than two
thirds of all members of parliament in each houses of Parliament.76 Parliament is also mandated
to publicise the bill and facilitate public discussion on the bill.77This is meant to enhance public
participation. Upon passing of the bill, the speakers of the two houses shall jointly forward the
bill to the president for assent alongside a certificate that the bill has been duly passed in
accordance with the prerequisites.78
As regards to the assenting of the bill, the president is mandated to request the Independent
Electoral and Boundaries Commission (IEBC) to conduct, within ninety days, a national
referendum for approval of the Bill.79 Upon being approved by the referendum, the chairman of
the IEBC should then present the bill to the president. Within thirty days after the chairperson of
the Independent Electoral and Boundaries Commission has certified to the President that the Bill
has been approved in accordance with Article 255 (2), the President shall assent to the Bill and
cause it to be published in the Kenya gazette.80.
74 The Constitution of Kenya, art 256 (1)(a) (b). 75 Ibid (c) 76 The constitution of Kenya, art 256 (1) (b) 77 The constitution of Kenya, art 256 (2) 78 The constitution of Kenya, art 256 (3) 79 The Constitution of Kenya, art 256 (5) (a) 80 The Constitution of Kenya, art 256 (5) (b)
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2.3 Conclusion
It cannot be denied that a State is always united by consent and not force. The fact that the
Constitution does not prohibit amendment to any matters, including of Kenya’s territory, means
that, even if inadvertently, it recognises a procedural right to secession.
That right however is not substantive, absolute, unilateral or unlimited. It is heavily qualified by
the imposition of procedural prerequisites. It allows the Kenyan State to use the rule of law to
control the secession process through consensual negotiation.
Thus, the MRC is clearly within its right to demand secession if it feels that the Constitution’s
devolution, checks and balances, entrenchment of civil rights and liberties, recognition of
marginalised groups, integrity requirements, promise of democratic elections, and judicial review
powers can’t address historical injustices.
However, the MRC must strictly follow the concrete procedure on how to secede. The
Constitution requires the consent of other Kenyans, in order to prevent impulsive, public
opinion-driven secessions by individuals or by any small group of citizens, including strategic
behaviour by economically rich political subunits not willing to share their wealth with the larger
state.
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CHAPTER THREE
The Legal Challenges That the MRC Is Facing In Realizing the Right to Secession in
Kenya.
3.1 Introduction.
Whether the legal doctrines discussed in chapter two of this study entitle the Mombasa
Republican Council to secede from Kenya requires a three-part analysis that will as well look at
the challenges that the movement faces. First, self-determination is only available to “peoples”
under international law. The obvious question, therefore, is whether the inhabitants of Mombasa
are a “people.” It is argued in this paper that they are. Next, the chapter explore whether self-
determination allows Mombasa to secede as an instance of decolonization. In other words, did
the inhabitants of Mombasa retain a right to secede due to the invalidity of the Act of uniting the
coastal strip to Kenya by the British colonies? The study acknowledges that it did. And finally,
can Mombasa Republican Council remedy its inability to exercise internal self-determination
through secession? Yes, it can.
3.2 Legal challenges that the MRC faces under the law.
The MRC is faced with many legal challenges, however, the first and major challenge that they
face is the issue to deal with locus standi. It has always been argued that the MRC not being a
registered organization, or not pursuing the process of registration or exemption from
registration, lacked legal capacity to institute the petition as well as make the application. As
such, it had brought the motions before court prematurely and without the legal capacity to do so.
This position was reiterated in the case of Randu Nzai Ruwa & 2 others v Secretary,
Independent Electoral and Boundaries Commission & 9 others.81 The court opined:
81 Randu Nzai Ruwa & 2 others v Secretary, Independent Electoral and Boundaries Commission & 9 others [2012]eKLR.
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Neither the Applicants as individuals acting on behalf of MRC, nor the MRC as an
unregistered, amorphous body espousing an unconstitutional agenda, had neither the
locus standi nor the legal competency to bring the Originating Motion or the
Interlocutory Motion, or to be entitled to pursue the reliefs sought…The MRC, not being
an entity known to law, and having evinced its intention to be a registered body, but
having failed to do so, and having expressly been established to tread an unconstitutional
journey evidenced in its intrinsic constitutional character, had no locus or competency to
bring the application for constitutional protection,82
On the other hand, one can argue that the above case should have been heard since the
Constitution of Kenya lowers the locus standi83 for human rights cases and hence any one can
institute a court proceeding on grounds of human rights. This constitutional right however should
be guaranteed to Kenyan citizens. One would therefore ask if the MRC was at the time a Kenyan
citizen.
Courts have always adopted a narrow interpretation of who a Kenyan citizen. This definition
would not incorporate the MRC. In the case of Famy Care Limited vs. Public Procurement
Administrative Review Board & Another Petition No. 43 of 2012,84 the court was of the opinion
that the constitutional rights was only guaranteed to Kenyan citizens and by natural Kenya
Citizens and not Kenyan juridical persons such as corporations, or associations only.85 This
argument would still lead one to a conclusion that the MRC does not have the capacity to
institute a legal proceeding in Kenya courts.
82 Ibid, para 3 and 4. 83 The Constitution of Kenya, Art 22. 84 Famy Care Limited vs. Public Procurement Administrative Review Board & Another Petition No. 43 of 2012, 85 Ibid.
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Other than the challenge of locus standi, other challenges still exist and they include the ones
tackled below. But the question that still remains is whether the person acting on behalf of the
MRC is not entitled to the right. The persons acting should be entitled to the right to institute a
legal proceeding in court. The argument for this stand is because, denying any applicant the right
to ensure his rights are respected, ends up lowering the person’s dignity. The foundation of
human rights is always based on an individual’s right to have the dignity respected. This is also a
right that is enshrined under the Kenyan Constitution.86
However, the courts in dealing with the MRC have always decided that not even the applicants
can be said to be acting on behalf of other persons as guaranteed in the constitution.87 This
position is evident in the case of Randu Nzai Ruwa & 2 others v Secretary, Independent
Electoral and Boundaries Commission & 9 others.88
3.2.1 Are the Inhabitants of the coastal part of Kenya a “People”?
A basic principle of international law is that “all peoples have the right to self determination.”89
Unclear, however, is what group constitutes a “people.” Scholars such as Marcelo Kohen argue
that international law only allows one “people” to exist within the territory of a state. Under this
theory, more than one “people” inhabit a state only if the state “defines itself as constituted by a
plurality of peoples having the right to self-determination.” The logic of the theory requires a
distinction between “peoples,” minorities, and indigenous populations, with only “peoples”
86 Supra note 4, art 23. 87 The Constitution of Kenya, Art 22. 88 Supra note 81, para 5. 89 U.N. Charter art. 1, para. 2; International Covenant on Civil and Political Rights art. 1, Dec. 16 1966, 999 U.N.T.S. 171.
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enjoying a right to self-determination. Minorities and indigenous populations, these scholars
argue, form part of the “people” itself.90
The Canadian Supreme Court however embraced an opinion that many “peoples” may exist
within the territory of a single state. Concerning the right of the province of Quebec to secede
from Canada, the court noted how restricting the term “people” to the “population of existing
states would render the granting of a right to self-determination largely duplicative.”91 This latter
view seems more logical than the former. If “peoples” were merely defined by the territory in
which they lived, then there would be no tension between the principles of self-determination
and territorial integrity, and the “safeguard clause” of the Declaration on Friendly Relations
would be redundant.92
Assuming that a “people” may form only part of the population of a state, as the inhabitants of
Mombasa are trying to do within Kenya, the question remains how to define a “people.” If the
term “people” is defined merely by objective criteria such as distinct language, ethnicity, and
religion, then the inhabitants of Mombasa are a people. Such an exclusive definition appears
overly broad, however. For instance, Norwegians, Swedes, and Danes are considered different
“peoples” despite their shared language, ethnicity, and religion.93
Subjective criteria may provide more useful tools for determining whether a group constitutes a
“people” entitled to self-determination. According to a subjective sense of identity, a “people”
may exist if it is perceived to exist. This self-awareness of group identification may exist because
90 Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples. < http://books.google.co.ke/books?hl=en&lr=&id=Nad7afStdr8C&oi=fnd&pg=PR9&dq=This+is+because+the+postwar+process+of+decolonization+recognized+%E2%80%9Cpeoples%E2%80%9D+as+being+the+inhabitants+of+defined+colonial+territories&ots=lClGa7rz6m&sig=ZDcUHkZETDfi9Pxo6dunfbFRR_w&redir_esc=y#v=onepage&q&f=false > accessed on 5th march, 2014. 91 Reference re Secession of Quebec, 2 S.C.R. 217 (Can. 1998). 92 Supra note 90. 93 Lars Vikør, “Northern Europe: Languages as Prime Markers of Ethnic and National Identity,” in Language and Nationalism in Europe, ed. Stephen Barbour et al. (Oxford: Oxford University Press, 2000), 105.
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the group perceives itself as existing, or because outsiders define the group as distinct from them,
or some mixture of internal and external identification. Sartre, for example, argued that “the Jew
is a man that other men consider to be Jewish . . . it is the anti-Semite that makes the Jew.”94 The
MRC has been granted this kind of self awareness too.
International criminal tribunals have embraced a similar subjective identification of groups in the
context of genocide. The trial chambers of the International Criminal Tribunal for the former
Yugoslavia (ICTY), for instance, have found that:
attempt[ing] to define a national, ethnical or racial group today using objective and
scientifically irreproachable criteria would be a perilous exercise whose result would not
necessarily correspond to the perception of the persons concerned by such categorization.
Therefore, it is more appropriate to evaluate the status of a national, ethnical or racial
group from the point of view of those persons who wish to single that group out from the
rest of the community.95
It may be possible to translate the subjective identification of groups from the context of
genocide to this discussion of national self-determination for peoples. The inhabitants of the
Kenyan coast were singled out by the former regime for persecution because of their maybe
religion and political affiliations. By committing atrocities against a segment of its own people,
and by defining that segment with an immutable and collective characteristic, the state may have
raised the Mombasa residents to the status of a “people” with rights of self-determination
independent of the greater Kenyan community.96
94 Jean-Paul Sartre, Anti-Semite and Jew: An Exploration of the Etiology of Hate (New York: Schocken Books, 1948), 69. 95 Prosecutor v. Jelisic, Case No. IT-95-10-T, Judgment, 14 December 1999, para 70. 96 Maurice Odhiambo Makoloo, Kenya: Minorities, Indigenous Peoples and Ethnic Diversity.5. Available at < http://citizenshiprightsinafrica.org/docs/MRGKenyaReport-Makoloo.pdf > accessed on 25/4/2014.
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The coastal people, however after being raised to the status of a ‘people’, have failed to unite
under one umbrella. It has had various factions struggling for various interests. This therefore
poses a greater challenge to them.
3.2.2 The MRC’s Ability to Restore the Previous Sovereignty of the Coastal Region
The main concern of the MRC has always been the status of the ‘Ten-Mile Strip’. Running the
length of the Kenya coastline, but never properly defined or mapped, this was nominally the
territory of the Sultan of Zanzibar.97 Therefore had coastal ten mile strip achieved its
independence from the Sultan of Zanzibar and become a sovereign state in its own right through
the normal process of decolonization, the question of whether coastal people were a “people”
would therefore be a moot point. This is because the post-war process of decolonization
recognized “peoples” as being the inhabitants of defined colonial territories.98
Assuming that the Act of Union did constitute a valid treaty between the coastal strip and the
mainland Kenya, however, MRC could plausibly argue in the alternative that material breaches
of the treaty under the dictatorship and segregation allows them to terminate the agreement.
Article 60.1 of the Vienna Convention allows parties to bilateral treaties to invoke breach as
grounds for termination. Both the Law of Union and the Act of Union can therefore structure the
new Coast as a country.
In the event that the bilateral treaties unifying the coastal strip and the original Kenyan state were
invalid or terminated, MRC’s claims to independence would not violate the territorial integrity of
a united Kenya, since that union would have ceased to exist. In such a scenario, MRC could
possibly justify its secession as a valid exercise of self-determination under the decolonization
framework of the Declaration on the Granting of Independence to Colonial Countries and
97 James Brennan, ‘Lowering the Sultan’s flag: sovereignty and decolonization in coastal Kenya’, Comparative Studies in Society and History 50, 4 (2008), pp. 831–61. 98 Supra note 2.
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Peoples. Viewed through this lens, the secessionist ideas pioneered by MRC from Kenya would
not dismember a sovereign state, but rather restore a previously sovereign state to its earlier
status.99
3.2.3 Secession as a Legal Remedy for the Kenyan Coat People To Exercise The Right To
Self Determination.
International law may entitle the people of MRC to remedy their inability to exercise self-
determination within Kenya by seceding from Kenya.100 In an influential opinion, the Canadian
Supreme Court found that a right to secession may arise “under the principle of self-
determination of people at international law where ‘a people’ . . . is denied any meaningful
exercise of its right to self-determination within the state of which it forms a part.”101 The people
of the Kenyan coast can argue that their right to self-determination has been denied by the
continuous violence and extra judicial killings by a government that did not respect their civil,
political, and human rights. For these reasons, it is a finding that the MRC has a right to remedial
secession, because state authorities must respect the right of the state’s entire population to
internal self-determination and “[represent] the people . . . without distinction of any kind.”102
Therefore, if the state excludes a group from the decision-making process it violates that group’s
right to self-determination and may activate a right to remedial secession.103 The MRC therefore
is still faced with the challenge of being recognized as legal entity that should be heard. The
government of Kenya has ever still criminalised the MRC.
99 Instances of independent and ethnically similar colonial states uniting and later breaking apart and securing independent sovereignty include Senegal and French Sudan forming the Mali Federation and Egypt and Syria forming the United Arab Republic. Both unions failed and all four states returned to their previous status. 100 Assuming for the sake of argument that the inhabitants of Somaliland are indeed a “people.” 101 Reference re Secession of Quebec, 2 S.C.R. 217 (Can. 1998). 102 G.A. Res. 50/6 of 24 October 1995. 103 Antonio Cassese argues that the right to secede requires both the denial of internal selfdetermination and human rights violations.
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3.2.4 In the Absence of a Right to Secede Is Secession Still Valid?
Should MRC fail to hold a secessionist right to self-determination maybe because its inhabitants
are not a people, international law may still legitimize its de facto secession as a procedural
matter. It can be argued that international law neither authorizes nor prohibits secession,
secession is a fact that international law will recognize as legitimate if it succeeds.104
Antonello Tancredi argues that international law addresses the procedure of secession, not
whether it substantively occurs. His argument rests on the assumption that although international
law is neutral on the issue of secession, the “dynamics of secession represent a process which
potentially collides with international rules at a higher level, designed to protect the common
interests of the intergovernmental community.”105
In other words, secession threatens the established order, so international law should guide the
process along a nonthreatening path. Tancredi maintains that three procedural criteria must be
met in order for international law to legitimate secession. First, the secession must occur without
military aid from foreign states. Second, the population of the seceding territory must
democratically approve of the secession. And third, secession must respect the principle of uti
possidetis.106
This is another aspect that the MRC still stands to be challenged. The coastal region has lately
been the home of very many terrorists and the al shabaab members and recruitment zones. One
can therefore base an argument that the MRC is funded the Somali militias hence making them
fall short of Trancendi’s standards. While hostile critics persistently allege that the MRC was a
radical
104 Thomas M. Franck, Legitimacy in the International System, The American Journal of International Law , Vol. 82, No. 4 (Oct., 1988) , pp. 705-759. < http://www.jstor.org/stable/2203510 > 105 A. Tancredi, James Ker-Lindsay, (2013) Preventing the Emergence of Self-Determination as a Norm of Secession: An Assessment of the Kosovo ‘Unique Case’ Argument. Europe-Asia Studies 65:5, pages 837-856. 106 Ibid., 189–191.
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Muslim organization linked to al-Shabaab, support has by no means been confined to
Muslims.107 In mid-2011 a meeting of ‘[t]he Pwani Church, which is a confederation of Christian
churches of indigenous coastal peoples’ asserted its support for the Mombasa Republican
Council as a ‘spontaneous coastal people response to the long-standing grievances of the coastal
people against the government of Kenya and…up-country immigrants communities’.108
3.3 Conclusion
The secessionist ideologies fostered by the MRC is a fact. The study portrays an argument that
this fact enjoys international legal legitimacy for three reasons. The people of the Kenyan coast
may be considered a distinct “people” entitled to exercise rights of self determination because
they perceive themselves as such and because the former regime viewed them as a distinct group
unworthy of state protection.
The ruling by the high court in Mombasa regarding the banning of Mombasa Republican Council
and lifting of the ban wasn’t quite a surprise. What the ruling did legally, was an overture to
freedom of speech, assembly and association, technically and practically it was a strategic gag.
In essence, were MRC to strictly follow those guidelines and the conditions necessary for
amending the constitution, the group would simply cease to logically exist or function and thus
posing a greater challenge to MRC?
107 For the al-Shabaab allegation see for example James Macharia, ‘Separatist storm brewing on Kenya’s coast’, Reuters, 23 July 2012, <http://uk.reuters.com/article/2012/07/23/uk-kenya-coast-mrc-idUKBRE86M0H820120723 > (5th march 2012). 108 ‘Statement on the Mombasa Republican Council’, Bishop James Mungumi and Bishop Stephen Mkomu and 31 signatories, nd, 2010 (document supplied by Randu Nzai, November 2011).
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CHAPTER FOUR:
COMPARATIVE STUDY WITH THE SECESSION OF KOSOVO.
4.0 Introduction
Under this chapter a detailed comparison will be made between the Kenyan laws on the right to
secession in relation to the MRC and how the law, both domestic and international was
employed in the case Kosovo’s secession from Serbia.
This study shall mostly be based on how the law was applied successfully in the case of Kosovo.
And also where, when and which gaps would the law not fill in.
On the 17 February 2008, the international community was forced to confront this phenomenon
head-on after the Assembly of Kosovo unilaterally proclaimed the Republic of Kosovo
(“Kosovo”) to be an independent and sovereign State, irrespective of the existing claims of the
Republic of Serbia (“Serbia”) to sovereignty over this autonomous province.109
The genesis of the modern dispute over Kosovo arose following the collapse of the Ottoman
Empire during the Balkan Wars of 1912 and 1913.110 At the conclusion of the first Balkan war,
major European powers awarded the victorious Balkan allies, including Serbia, large areas of
Albanian-claimed territory. Although Albania’s independence was formally recognised by the
Treaty of London in May 1913, it was accepted that Kosovo did not form part of this new
Albanian state.111
109 See Kosovo Declaration of Independence, < http://en.wikipedia.org/wiki/2008_Kosovo_declaration_of_independence > accessed on 29th march, 2014. 110 Bridgette Martin, Secession and Statehood: The International Legal Status of Kosovo. 2008. Available at < http://www.otago.ac.nz/law/research/journals/otago036276.pdf > accessed on 28/4/2014. 111 Miranda Vickers The Albanians: A Modern History (I.B.Tauris, 1995) 97.
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Similarly, following the conclusion of the Second Balkan War, the Great Powers assigned
Kosovo to Serbia under the Protocol of Florence in December 1913.112
There was strong Albanian dissatisfaction with this outcome, as the agreement implied that more
than half of the Albanian population would remain outside the new State of Albania.113 Kosovo
Albanian separatists argue to this day that this incorporation with Serbia was illegal.114
Regardless of such claims, Serbia’s sovereignty over Kosovo was formally recognised at this
time.
Serbia’s sovereignty over Kosovo was reinforced at the 1918 Paris Peace Conference, in which
the Entente Powers rewarded Serbia for its contribution to the Allied victory in the First World
War. Kosovo was assigned to the new Serbian-dominated ‘Kingdom of Serbs, Croats and
Slovenes’ (known as Yugoslavia after 1929), despite the 1921 consensus suggesting that
Albanians constituted 64.1 per cent of the population in Kosovo.115
This basically is the origin of the dispute over Kosovo.
4.1 The Status of Kosovo’s Unilateral under International Law.
On the 18 February 2008, the Serbian National Assembly declared Kosovo’s declaration of
independence to be null and void, and contrary to the UN Charter, Security Council Resolution
1244, the Helsinki Final Act, and the norms of international law on which the world order
112 Miranda Vickers Between Serb and Albanian: A History of Kosovo (London, 1998) 6, in Dick Leurdijk & Dick Zandee Kosovo: From Crisis to Crisis (Ashgate Publishing Ltd, 2001) 5. 113 Ibid. 114 James Headley ‘The way opened, the way blocker: Chechnya and Kosovo’ in Peter Radan and Aleksandar Pavokic (eds), On the Way to Statehood (Aldershot: Ashgate, forthcoming 2008) 8. 115 Supra note 2.
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resides.116 It is however undisputed that at this particular time, Serbia was sovereign over
Kosovo.
According to the principle of sovereign equality of States, Serbia was entitled to jurisdiction over
the territory and permanent population of Kosovo,117 and to expect that no other State intrudes on
this territory.118 The principle of non-intervention in the internal or external affairs of other
States also requires States to refrain from instigating, organising, or officially supporting the
organisation on their territory of activities prejudicial to foreign countries.119 An examination of
Resolution 1244 is required to establish whether Serbia is entitled to exclusive enjoyment of
these sovereign rights.120
Considerable ambiguity surrounds the proper interpretation of Resolution 1244. The EU took the
position that Resolution 1244 is not a bar to Kosovo’s independence.121
They argued that Resolution 1244 contemplated only the formal retention of sovereignty by
Serbia during the period of UN administration and clearly contemplated some other sovereign
arrangement for Kosovo’s final status.122 Support for this proposition was derived from the
annexes of Resolution 1244, which called for the establishment of an “interim administration to
provide transitional administration while establishing ...provisional democratic self-governing
116 National Assembly of Serbia, above n 6. Spain has also described the declaration as “not in accord with international law”. BBC News (19 February 2008) available at < http://www.bbc.com/news/world-europe-19550809 > accessed on 29th march, 2014. 117 Ian Brownlie Principles of Public International Law (5th ed, Claredon Press Oxford, 1998), 289. 118 Antonio Cassese International Law (Oxford University Press, 2001) 89. 119 Ibid 98. 120 Serbia repeatedly argued that Kosovo has acted contrary to the provisions of the Final Act of the Conference on Security and Co-operation in Europe 1975 (henceforth referred to as “the Helsinki Final Act”). Article 1 of the Helsinki Act stipulates that “[t]he participating States will respect each other's sovereign equality and individuality as well as all the rights inherent in and encompassed by its sovereignty”. Though not a treaty, the provision is generally accepted as declaratory of customary international law and is therefore binding on the ‘State’ of Kosovo. 121 Christopher Borgen ASIL Insight: Kosovo’s Declaration of Independence: Self-determination, Secession and Recognition (2008) American Society of International Law 29 February 2008 < http://www.asil.org/insights/2008/02/insights080229.html > accessed on 29th march, 2014. 122 Henry H. Perritt, ‘Final Status for Kosovo’ (2005) 80 Chicago-Kent Law Review 3, 10.
36
institutions”.123 Against that, however, other legal commentators support Serbian and Russian
contentions that Resolution 1244 unambiguously provided for the full restoration of sovereignty
in Serbia if some other final status was not agreed to by Serbia or formally mandated by the
Security Council.124Reliance is placed on the preamble of Resolution 1244 which reaffirms the
“sovereignty and territorial integrity” of the FRY.125
Leaving aside this division, it is clear that the Resolution 1244 did not expressly revoke the
FRY’s sovereignty over Kosovo. Therefore, by virtue of the FRY’s reconstitution as the
Republic of Serbia in 2006, it can be conceded that Serbia officially held sovereignty over
Kosovo at the date of independence.126 The question therefore remained to ascertaining whether,
in law or in fact, Serbia’s sovereignty has been displaced in the period subsequent to this
declaration of independence.
Again, while Kosovo Albanians may been eligible for a right to internal selfdetermination, it
raised doubts as to whether this entitlement extends to the right of external selfdetermination or
secession, given Kosovo’s status as an autonomous province within Serbia prior to the
declaration.
123 Resolution 1244, above n 45, Annex 2 (5). Resolution 1244 also calls for the establishment of an “interim political framework agreement providing for a substantial self-government for Kosovo” while taking into account the territorial integrity of FRY. Resolution 1244, 124 Supra note 13. 125 Resolution 1244, above n 45, Preamble. In 2003, when the FRY transformed into the Union of Serbia and Montenegro, the Constitutional Charter of the State Union stipulated that upon dissolution of the Union, all duties having belonged previously to the FRY, especially with respect to Resolution 1244, would be transferred to Serbia as the successor State. Viola Trebicka, ‘Lessons from the Kosovo Status Talks: On Humanitarian Intervention and Self-Determination’ (2007) 32 The Yale Journal of International Law 255, 255. 126 The Federal Republic of Yugoslavia (FRY) reconstituted in 2003 as the State Union of Serbia and Montenegro, which in 2006 became the Republic of Serbia after the secession of Montenegro. Jean d’Aspremont ‘Regulating Statehood: The Kosovo Status Settlement’ (2007) 20 Leiden Journal of International Law, 649, 653.
37
4.2 Jurisprudence on State Practice and Secession In Relation To Kosovo’s Secession.
This study is not to determine whether State practice was or is sufficient to amount to evidence
of a norm of customary international law, but to question whether there is evidence of a
precedent of successful cases of unilateral secession in the past.
In March 26 1971, East Pakistan unilaterally declared independence from Pakistan. There were
many extraordinary factual circumstances prompting this secession, the first of which was that
East Pakistan was geographically separated from its parent State, West Pakistan, by 1200 miles
of Indian Territory.127 Adding to this territorial anomaly were the cultural, ethnic and linguistic
distinctions between the Bengalis and the West Pakistanis, as well as the extremely marked
political and economic disparities between East and West Pakistan. 128 Yet the immediate trigger
for this secession was West Pakistan’s large-scale military operation in East Pakistan on the 25 -
26 March 1971,129during which the Pakistani Army was responsible for widespread violations of
human rights and the deaths of over one million Bengalis.130
International support for independence was also readily forthcoming, with some 100 States
recognising Bangladesh by September 1973. Ultimately, Bangladesh was admitted to the UN in
1974.131
Despite Bangladehs’s successful secession, the status of secession in international law still
remains problematic.
127 David Raič, Statehood and the Law of Self-Determination (Kluwer Law International, 2002),335. 128 Joshua Castellino International Law and Self-determination (Martinus Nijhoff Publishers, 2000) 153. After twenty-one years of independence, East Pakistani’s occupied a mere fifteen per cent of the central government services, while eighty per cent of Pakistan’s budget was spent in West Pakistan. These figure are based on a survey by a Pakistan economist, quoted in Ray, ‘Web of Bourgeois Politics’, (1971) 6 Economic & Political Weekly 1222, in Ved P. Nanda, ‘Self-Determination in International Law: The Tragic Tale of Two Cities – Islamabad (West Pakistan) and Dacca (East Pakistan)’ (1972) 66 The American Journal of International Law 321, 330. 129 Supra note 18, 339. 130 John Dugard and David Raič ‘The role of recognition in the law and practice of secession’ in Kohen, above n 2, 121. 131 Ibid.
38
There were many extraordinary extenuating circumstances within this particular case which
made independence the only realistic option for Bangladesh’s future status.
In 1961, the Security Council reaffirmed the proposition that international law does not explicitly
recognise the right of unilateral secession, after it declared Katanga’s secession from the
Republic of Congo illegal.132 At the time, it was disputed whether this attempt, conducted with
the support of foreign mercenaries, actually represented the true wishes of the majority of the
Katangese people, especially in light of the Katangese tribal and regional diversities.133
Similarly, the UN and the Organization of African Unity categorically rejected the Biafran claim
for independence in 1967, despite reports of human rights violations committed against the
seceding population.107 UN Secretary-General U Thant affirmed that “the United Nations has
never accepted and does not accept ... the principle of secession of a part of its Member State.”134
It is however not disputed that in certain circumstances, international law allows for changes to
State boundaries through consensual instances of State dissolution, merger, or union. Article
2(1)(b) of the Vienna Convention on Succession of States in respect of Treaties 1978 and Article
2(1)(a) of the Vienna Convention on Succession of States in Respect of State Property.
There is however not ad idem in this field. In the Quebec Case,135 the Supreme Court of Canada
acknowledged that:
“[a]lthough there is no legal right, under the Constitution or at international law, to
unilateral secession ... this does not rule out the possibility of an unconstitutional
declaration of secession leading to a de facto secession”.136
132 Supra note 18, 334. 133 M. Rafiqul Islam ‘Secessionist Self-Determination: Some Lessons from Katanga, Biafra and Bangladesh’ (1985) 22 Journal of Peace Research 215. 134 UN Monthly Chronicle, 1970, no. 2, 2, 135 Re Secession of Quebec [1998] 2 S C R 217; 37 ILM, 1998, 1342. 136 Ibid, para, 449.
39
The Court suggested that the ultimate success of such secession would depend on the recognition
of the international community, having regards to the merits of the case.137
4.2 Recognition of Kosovo.
From the above findings of this chapter, it is evident that “[T]he international community does
not have a clearly defined and coordinated response” to Kosovo’s declaration of
independence.138 In the absence of any established legal right of secession, and given that over
140 States have not accorded recognition, it is difficult to conclude that the current recognition of
Kosovo’s independence is sufficient to amount to confirmation of Kosovo’s de jure statehood.
Rather, all that can be concluded from the degree of current recognition is that Kosovo has
accomplished a unilateral de facto secession from Serbia. Italy’s recognition text corroborates
this view, declaring that “Kosovo’s independence is today a fact. It is a new reality which we
must face and acknowledge”.139
States also appear to have granted recognition on the premise that they were entitled to do so.140
For instance, the United States formally recognised Kosovo as a “sovereign and independent
state” on the basis that “independence is the only viable option to promote stability in the
region”.141 Similarly, Germany formally recognised the Republic of Kosovo on the ground that
further negotiations would not have resulted in a breakthrough.142
137 Ibid. 138 International Crisis Group Kosovo’s First Month Europe Briefing Nº 47 , Pristina/Belgrade/Brussels, 18 March 2008, < http://www.crisisgroup.org/home/index.cfm?id=5335&l=1 > accessed 31/03/14, 2. 139 Colin Warbrick, ‘Kosovo: The Declaration of Independence’ (2008) 57 International and Comparative Law Quarterly 675,687. 140 Ibid, 684. 141 Condoleezza Rice U.S Recognizes Kosovo as Independent State (18 February 2008) U.S Department of State, < http://www.state.gov/secretary/rm/2008/02/100973.htm > accessed on 30th march, 2014.. 142 Germany recognises Kosovo (20/02/2008 ) REGIERUNGonline, Federal Government, < http://www.bundesregierung.de/nn_6562/Content/EN/Artikel/2008/02/2008-02-20-deutschland> accessed on 30th march, 2014
40
Given that recognition is legally declaratory, this suggests that recognising States are
acknowledging Kosovo’s fulfillment of the criteria of statehood and its de facto independent
status. Since recognition is politically constitutive, those States that have refused to recorgnise
Kosovo are affirming that they will not establish diplomatic relations with this new State.
4.4 Conclusion
In conclusion, before addressing the secession claim, relational issues must be resolved: What is
the nature of the territory claiming secession, and what is its relation to the parent state? The
parent state must show that it has legal jurisdiction over the seceding territory.
The study also highlights two harms. First, international law has consistently condemned states
that remove internal self-determination from a portion of its citizenry. By making internal self-
determination the bedrock of secession, it correctly places the right incentives on states. If states
want to avoid secessionist claims attaining legitimacy in international law, they need to address
demands for internal self-determination. Finally, the Remedial Model treats secession as a form
of humanitarian intervention. If the seceding entity demonstrates violations of peremptory norms
by the parent state, then secession provides a remedy of last resort that international law should
recognize. If a parent state has denied internal self-determination and, for example, committed
ethnic cleansing against its people, then secession provides a justifiable remedy.
41
CHAPTER FIVE:
Conclusion and Recommendations.
5.1 Introduction.
This chapter shall contain the recommendations that the study deems fit as far as the right to
secession is concerned in Kenya and the world at large and the conclusion thereof.
5.2 Conclusion
The law on the right to secession in Kenya is one that lacks clarity and bugged with a lot of
procedural technicalities. It is therefore a difficulty to try and legitimize the MRC demands as
well as well as legitimizing the government’s demands for the right to sovereignty.
From the analysis carried out in chapter of the study, it is crystal clear that the law on the right to
secession in Kenya is one that lacks clarity and bugged with a lot of procedural technicalities.
The only source of law governing this realm is the Kenyan constitution, there is no any other.
The right to secession is only viewed as a matter of human rights and in Kenya can only be
enforced through the set out procedures in the constitution.
The study also highlights two harms. First, international law has consistently condemned states
that remove internal self-determination from a portion of its citizenry. By making internal self-
determination the bedrock of secession, it correctly places the right incentives on states. If states
want to avoid secessionist claims attaining legitimacy in international law, they need to address
demands for internal self-determination. Finally, the Remedial Model treats secession as a form
of humanitarian intervention. If the seceding entity demonstrates violations of peremptory norms
by the parent state, then secession provides a remedy of last resort that international law should
42
recognize. If a parent state has denied internal self-determination and, for example, committed
ethnic cleansing against its people, then secession provides a justifiable remedy.
Based on the study, it is also evident that the lack of generally accepted international standards
for the carrying out and the recognition of the seceded state. This has left an unpredictable nature
of the outcome of any of the secessionist outcries. This therefore opens up the floor for state
violations of human rights as they fight for their own respectable sovereignty at the expense of
individual human rights of the citizens.
Going by the findings of this study, it is evident that the MRC’s demands cannot be illegalized
prima facie since looking at the case of Kosovo, it is clear that one needs to look at various
rational factors before illegitimating a groups right to secession.
The government should therefore go beyond rubbing off the claims and demands tabled by the
MRC and move a step forward and look at various rational issues that might have been the cause
of the MRC demands.
The right to self-determination in Kenya has proved to be one that is granted by law on one hand
and taken by the other. The Mombasa Republican Council might really have had genuine reasons
go for their right to secession, the law availed to them a lot of challenges in their course to realize
their aspirations. This scenario might change if the government can incorporate the consideration
of various issues and rationally and reasonably before taking a step.
Based on chapter four of this research, it is submitted that before addressing secession issues,
various other issues must be dealt with. These may include the nature of the territory claiming
secession, and what is its relation to the parent state and also whether the parent state has legal
jurisdiction over the seceding territory.
43
This study also finds that, it is evident that the international community does not have a clearly
defined and coordinated response to secession movements. This can be clearly imaged by the
Kosovo’s scenario and the one by the MRC in Kenya. The international community was and still
is divided on the recognition of Kosovo as an independent state with some countries giving it
recognition while others don’t. This is brought about by the lack of clarity on the rules that
ought to govern the situations when one intends to enjoy the right to secession.
5.3 Recommendations
This study has tried to look at the law surrounding the right to secession both internationally and
at the domestic level. It has identified the strengths and weaknesses in this realm of law and
therefore comes along with recommendations and applauds.
The law on the right to secession in Kenya is one that lacks clarity and bugged with a lot of
procedural technicalities. The only source of law governing this realm is the Kenyan
constitution, there is no any other. The right to secession is only viewed as a matter of human
rights and in Kenya can only be enforced through the set out procedures in the constitution.
However, it can’t be enforced by the courts like any other right, the constitution further sets out
the procedures for seceding. There exists then the need to realign the procedures for enjoying the
right to secession as the procedures set out in the constitution have previously proved to be a
hurdle for individuals moving towards enjoying this right.
There is also the need for a well defined internationally accepted mode of operation when
dealing with the right to secession of the people who forms part of a sovereign state. This would
therefore avoid outcries by the parent states in that their sovereignty is breached hence solving
the existing competition between the states right to secession and the individual or the people’s
44
right to secession. This would also help cure the irregular international recognition of
secessionist states.
Having an internationally accepted norm would also help solve the different outcome of
secession cases as have been since seen. It would therefore mean that the people seeking to
secede would therefore know whether their claim is legally supported and would therefore
succeed or not. This would in the long run help in reducing uncalled for secessionist movements.
The study has also noted with care that most governments, whenever there are cries of secession
tends to declare war on the movements leading to a greater height of human rights abuse. This
was evident in Kenya when the government banned the MRC activities and declared them
illegal. This was a big blow to the freedom of speech and the freedom of association to the
citizens of the coast. The court came to their rescue. This study recommends that there should be
established a proper channel that both the government and the secessionist movement can use to
settle their claims and demands. This would then translate into eliminating the abuse of rights
that is always commonly seen when a secessionist movement apprises.
45
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