IEBC lacks legal authority to conduct secession referendum

Acting at the behest of the NASA coalition, Homa Bay Member of Parliament Peter Kaluma has submitted a Bill that proposes hiving off 40 of the 47 counties 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 a referendum on the Bill if conditions under article 255-257 are complied with.

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 decolonisation, when states inherited and retained colonial borders under a legal principle known as uti possidetis.

The Organisation 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 land mass of Kenya, one of the capstones of its statehood under international law, is a 20th century invention institutionalised by colonial and decolonisation 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.”

Protecting our sovereignty

The upshot of this provision is that Kenya’s territory 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 Defense 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. 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.

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.”

Neighbouring country

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.

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”.

International law, aside from strongly favoring the norm of territorial integrity, frowns upon secession.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, 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 Korir Sing’Oei is an Advocate of the High Court of Kenya and a Legal Advisor, Executive office of the Deputy President