Confronted with the threat of secession posed by the Mombasa Republican Council (MRC), supporters of Kenya’s unity face the following four stack choices: Ban, discipline, accommodate, or allow.
Each choice is a needle that must be painstakingly threaded under the shadow of law.
We live within a tight constitutional and international law milieu, and have chosen justice as a way of life. Let us get on with it.
It will be in Kenya’s best interest to abide by the law in pursuing any one of these choices. The case for the nation’s sovereign unity will fail if pro-unity action is laced with illegality. Why?
Every illegal move by the government feeds into international law’s score-card, by which groups living under gross oppression or disenfranchisement have a right of self-determination, including secession.
This doctrine imposes discipline on governments to act with justice and fairness towards all citizens. It furthers the ideals of governance.
International law does not, however, grant the right of self-determination willy-nilly. Bear in mind that international law’s first love is sovereign statehood.
It will allow the splitting of existing states only under exceptional circumstances, where oppression is gross, disenfranchisement a crying shame, and prospects of meaningful redress pitiful.
Visualise conditions under colonial rule and you will understand that some levels of oppression are too gross even for international law.
International law, therefore, presents us with an interesting dilemma. What it gives with one hand, it can take with another. It makes states, it can allow for their dissolution. It certainly subscribes to the principle “use it or lose it”.
If a state does not make good use of its human resource, goes even further and commits gross violations against its own, then its sovereignty does not deserve protection.
The power that is sovereign statehood must be exercised, as our Constitution states, for the benefit of the people, or it will be lost.
I do not believe the grievances of the MRC rise to the level established by international law for secession.
People of the Coast region have not been singled out for oppression and disenfranchisement, compared to those of other regions.
Second, with the new Constitution, the Kenyan state has put in place incredibly progressive measures to address regional grievances.
Third, with county governance, opportunities abide for self-governance and regional excellence.
It would defeat logic for international law to permit secession, a heavy blow to a cherished ideal of sovereignty, under these circumstances.
In other words, if it ain’t broken, international law will not fix it.
Now back to the four choices. I hope the foregoing analysis shows the wisdom of the decision made by the High Court sitting in Mombasa in July in the Randu Ruwa v. Internal Security Minister case that lifted the ban on MRC.
Besides the constitutional law principles that the court upheld such as freedom of association and expression, such a ban would have strengthened MRC’s case for secession.
It would have been evidence of repression of basic human freedoms, the first indicator that the state of Kenya is broken.
The court opted for the second approach, “discipline”, requiring the MRC to conduct its affairs under the law to deserve the protection of law.
The third approach would involve dealing with MRC as if it was a quasi-sovereign entity. The details of this arrangement would be subject to a legal agreement.
One could argue that given county governance, our constitutional law framework has already made the necessary concessions, and this approach is already at work, or that time will determine whether more will be added to these concessions.
The last approach would allow secession, leading to a redrawing of the map of Kenya and creating either a new stand-alone state or one merged with another.
Total dissolution of the Kenyan state would occur if it lost additional parts of its territory and population to the point of being an unviable state, as happened with the former USSR in the 1990s.
Whatever the approach, the needle must be threaded with care. We do not want to win battles only to lose the war.
Prof Kang’ara is the Dean of Riara Law School. (firstname.lastname@example.org)
By SYLVIA W. KANG’ARA
Daily Nation Posted Thursday, October 18 2012 at 20:00