IEBC has no legal authority to preside over a secession referendum

Honourable Peter Kaluma, the Homa Bay legislator, acting at the behest of NASA coalition, has submitted a Bill structured as a constitutional amendment Bill that proposes hiving off 40 of the 47 counties, to drastically reduce the territory of Kenya as confirmed by Article 5 of the Constitution, to form the so-called People’s Republic of Kenya.

Curiously, and without reflecting on the full import of the Bill, IEBC has signalled readiness to carry out referendum on the Bill if conditions under Article 255-257 are complied with. This is an error of colossal proportion.

Since the end of World War II, the international legal order has been structured around two central tenets: the notion of equal sovereignty of states and territorial preservation of existing boundaries. The norm calling for the perpetuation of the territorial status quo was the guiding principle during decolonization, when states inherited and retained colonial borders under a legal principle known as Uti possidetis.

The Organization of African Unity (OAU) declared in 1964 that “the borders of African States, on the day of their independence, constitute a tangible reality.”

Its successor, the African Union, “defends…the territorial integrity and independence of its member states,” based on inviolability of colonial borders.

Despite the arbitrary nature of colonial borders particularly in Africa, territorial changes under international and AU law is no casual affair.
The landmass of Kenya, one of the capstones of its statehood under international law, is a 20th century invention institutionalized by colonial and decolonization processes.

The Independence Constitution 1963, merely sanctified this reality thus: “Kenya means the territory comprised in the former Colony of Kenya and the former Protectorate.”Similarly, Article 5 of the current constitution provides that “Kenya consists of the territory and territorial waters comprising Kenya on the effective date, and any additional territory and territorial waters as defined by an Act of Parliament.”

The upshot of this provision is that Kenya’s territory (comprising 47 counties under current law) has remained relatively unaltered since the colonial period and the constitution only envisions possible expansion and not reduction or ceding of this territory.

So fundamental is territory to the safety, stability and international standing of the state that the predominant constitutional mandate of the Kenya Defence Forces is to protect the sovereignty and territorial integrity of the Republic – Article 241(3).

NASA’s secession Bill is therefore a direct affront to Kenya’s territorial integrity and is unsupportable under our law or international law.

The preamble to the Constitution is clear: Kenya is “one indivisible sovereign nation.” This preamble animates Article 10 which embodies patriotism and national unity as national values binding upon state organs. Both values are incompatible with the idea of secession.

Besides, devolution is meant to “foster national unity” while promoting diversity in terms of article 174.
The courts too have previously weighed in on the question albeit in different circumstances.

In the highly publicised Mombasa Republican Council case (Randu Nzai Ruwa & Others v Minister for Interior & Another, Judgement of 25th July 2012) Judges Mwera, Kasango and Tunoi, in a seminal examination of the question of secession, upheld MRC’s freedom of expression petition under article 33 of the Katiba, including its right to agitate for secession.

However, the court completely resisted the proposition that secession was permissible under the Constitution and observed as follows: “We take the view that the Constitution does not contemplate secession. If the people of Kenya would have wished otherwise, then they would have expressly said so in the Constitution.”

Referencing the Ethiopian Constitution that expressly grants “Every nation, nationality and peoples in Ethiopia …an unconditional right to self- determination, including the right to secession,” the court doubted that secession could be achieved by an amendment to the clause defining the territory of Kenya (Article 5 of the Constitution).

Instead, it determined that “the Article does not suggest that Kenya can lose or cede any part of its territory. What is more fundamental …is that the Article is simply a provision about the physical size and delimitation of the territory of Kenya and how it shall be determined. It has nothing to do with issues of sovereignty or self- determination.”

International law, aside from strongly favouring the norm of territorial integrity, also frowns upon secession. In the Aaland Islands Affair (1920, PCIJ), the court observed that “Positive international law does not recognize the rights of national groups, as such, to separate themselves from the state of which they form a part by the simple expression of their wish.”

The 1970 Declaration on Principles Concerning Friendly Relations Among States Within the Charter of the United Nations is also unequivocal “that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country is incompatible with the purposes and principles of the Charter.”

Thus, until a specific right to self-determination including secession, is specifically textualised within the confines of our Constitution, the IEBC cannot expend public resources in furtherance of a referenda not grounded on a legitimate constitutional purpose. The more reason therefore for this parliament to urgently elaborate a substantive Referendum Law to guide IEBC.

(Dr Sing’Oei is an Advocate of the High Court of Kenya and a Legal Advisor, Executive office of the Deputy President).