AGITATION FOR SECESSION, A POLITICAL LANDMINE FOR KENYA

AGITATION FOR SECESSION, A POLITICAL LANDMINE FOR KENYA
Azimio Leaders in a Prayer Rally - Photo courtesy People Daily Kenya

1.    On the 26th of May 2023, top leadership of Azimio - One Kenya Alliance met at the home of former Vice President of Kenya, The Hon. Stephen Kalonzo Musyoka and warned the Kenya Kwanza leadership to within 7 days withdraw political remarks that insinuate Kenya as a Company where supporters of the later are the majority shareholders while those of the former are minority shareholders. 

2.    Several Speakers at the venue  led by their leader the Rt. Hon, Raila Odinga appeared to support the 7-day political ultimatum failure to which they threatened to give notice to the United Nations on their intention to secede and form their own "Break-away Region" as a Republic. According to them as sovereign people, they allege that they have an alienable right under international law to exercise self-determination, secede and form their own independent State. 

3.    From the foregoing Azimio One Kenya secessionist agitation, several complex questions arise. Does the Kenyan Constitution have provisions that allow citizens to establish a breakaway state?                                        

Globally most organized groups that have tried to break away from independent Countries such as Biafra, Darfur, Bangladesh, Southern Sudan, Eritrea, Tigray, Western Sahara, Kashmir, Catalonia, Somaliland, Jubaland, Palestine, Kurdistan among others have faced bloody resistance from governing States where hundreds of people often have lost their lives and property. 

4.    Ideally most legal jurisdictions in independent Countries consider the extra-judicial establishment of a government to not only being treasonous but also a Coup d’état and an indictment of the Presidents lack of capacity to effectively govern the nation State. The  oath of office for any President and or Prime Minister of any independent State includes among other things the protection of a Countries Sovereignty and Territorial Integrity. Some may argue that the foregoing is in respect to an external aggressor, not sovereigns of a nation. Unfortunately, governments world over often treats separatists’ the same way as external aggressors.

5.    Any attempts therefore to interfere or redraw the boundaries of any independent nation State is considered as the worst form of unwarranted aggression to constitutional order which security forces often respond with lethal and deadly force often leaving many civilian casualties just as it happened recently in Tigray Region of Ethiopia and in many other parts of the world that have had separatist groups.    

6.    The other question is whether the right to self-determination under international law confer rights to citizens in a State to arbitrary secede whenever they feel so? The international jurisprudence on this question has remained very cautious and not definitive. What has received favorable backing under international law is remedial secession. This form of secession is where before the UN member State or Country got independence, the seceding region historically existed as a first nation with recognizable territorial boundaries, common language, culture, religion, distinct governance structures among others. 

7.    In Kenya while it is near impossible, the agitation for remedial secession may only be advanced by the former Northern Frontier District now (North Eastern Kenya Region) and the Ten Mile Coastal Strip of the then Kenya Protectorate (now the Integrated Coastal Zone of Coast Region) due to how they existed in pre-colonial and colonial times. 

8.    Nevertheless, already attempts for the Norther Frontier District to secede led to massive massacres during the deadly Shifta War after independence. There is also sufficient historical evidence to prove that had the Ten Mile Coastal Strip stood ground to secede it would have been forcefully annexed into Kenyan Territory, possibly in a similar bloody confrontation according to a secret plan mooted by both KANU and KADU.  

9.    Jomo averted the blood birth by unilaterally signing an agreement between him and Sultan Mohamed Shamte, providing constitutional safeguards to his interests and that of his subjects. Across the border to the south, Dr. Julius Nyerere masterminded an over through of the Sultan in Zanzibar in a bloody revolution, merged it with Tanganyika to form the United Republic of Tanzania.

10.    Unfortunately, the Region being proposed by Azimio is a consolidation of Counties that have no shared historical sovereign territorial claims, common ancient language, similar culture, religion or governance system. As currently proposed it seems to be a mongrel that fails to satisfy the necessary characteristics required to pass the test of remedial session claims under international law in theory and not in fact.

11.    In theory because some of the stated characteristics is what defines first nations before colonial occupation. Even when the seceding groups pass the foregoing first nation test, the United Nations General Assembly has of late been very much restrained to pronounce itself in support of secessionist groups for fear of proliferation of many breakup States over basic internal governance issues within independent states. Many scholars have referred to this phenomenon as the problem of recognition. 

12.    It is until session becomes a fact. That it is until it successfully happens that the question of recognition can be invoked. The trend world over has seen independent States engaged in a bloody confrontation with separatists and where a major humanitarian crisis occurs, the UN intervenes and among the conditions for cessation of hostilities is a UN supervised referendum. 

13.    Traditionally after a UN supervised referendum takes place and the Separatist Region succeeds, the UN officially recognizes it as worthy all the privileges of an Independent State. Failure for the Separatist Group to succeed, it may lead to abandonment of the agitation but mostly it escalates into hostilities as what happened at independence when the Northern Frontier District in Kenya lost in the referendum, the aftermath was a deadly Shifta War which costed the Country many lives.

14.    The only avenue which is a big mountain to climb is for Azimio is to prove that the Government and the Presidency in particular have lost their effectiveness to Govern. To prove this Azimio must be able to demonstrate that the Government has advanced an official policy of systematic discrimination and violation of basic fundamental rights and civil liberties of all the people living in the seceding region and all constitutional and democratic avenues have been fully pursued and exhausted. Is there sufficient evidence to prove this? I doubt.

15.    Azimio must further demonstrate that there is a total breakdown of law and order and that the Kenyan Government as currently constituted, has failed to fully protect the lives and property of persons in the proposed breakaway region thus warranting the UN to protect the lives and property of Kenyans and midwife a process that will give Kenyans an opportunity to exercise their democratic rights of setting up a new government.  How this can be proven is a matter of wait and see. As reiterated earlier on, even with demonstrable evidence, the UN always exercises restraint in pronouncing itself on the question of secession by separatist groups within member states. 

16.    The other argument Azimio may have in mind which is again a tall order is to prove that the sovereign will of the people was not fully exercised in electing the Government in power due to a demonstrable breakdown of all systems of just and democratic governance. Unfortunately, the Supreme Court, the UN, EU and African Union passed a clean Bill of health on the August 2022 general elections.

17.    In conclusion, there has never been a secession without bloodshed. The clamor for cessation is a political land mine that can ignite a very long generational war. Its like lighting a bushfire in the harmattan at a time when the Country is deeply divided. Whether Azimio-One Kenya Alliance is determined to open the Pandora box and pursue the secessionist narrative, is for all Kenyans to see. In my view, Azimio leaders a very much aware of these adverse consequences. They are however trying to raise the stakes higher to intimidate the government to come to a negotiating table for a power-sharing arrangement.

Good luck.