By right, secession is the sword against exclusion, oppression

Saturday October 14 2017

Protesters wave Spanish and Catalan flags during a demonstration called by Catalan Civil Society under the motto

Protesters wave Spanish and Catalan flags during a demonstration called by Catalan Civil Society under the motto "Catalonia yes, Spain too" in Barcelona on October 12, 2017. Spain is suffering its worst political crisis in a generation after separatists in the wealthy northeastern region voted in a banned referendum on October 1 to split from Spain. PHOTO | JORGE GUERRERO | AFP 

By CHRISTOPHER ROSANA

Calls for secession inundated Kenya’s political discourse following the declaration of President Uhuru Kenyatta winner of the August 8 election, until the Supreme Court nullified the results.

As a recurring theme in Kenya, talk on secession is a pointer to the fact that the country is not a nation yet: It is simply a state.

Secessionist calls are a reminder of the failure to translate the “harmony” in the national anthem into a tangible national adhesive. Secession become a self-fulfilling prophecy in future if the underlying issues remain unsolved.

On the international scene is the recent, albeit illegal, vote for self-determination by the Catalonia region of Spain. Closer home is the English-speaking region of Cameroon.

Article 38 of Kenya’s Constitution provides for political rights. A choice to secede is a manifestation of a constitutional and political choice. By that very fact, it is misleading to claim that secessionist calls are the product of selfish propaganda.

The question on self-determination is a continuous conversation which all states must retain in their national dialogue. This is because all the people in a nation stay and live by choice and it is inimical to compel their loyalty through force.

The collective entitlement that even dissatisfied citizens must remain in a country that vilifies them sings of the most venomous blind privilege. Therefore, self-determination is a political choice and a legal principle that is not merely defeated by resorting to emotion.

Furthermore, the choice by a section of citizens to interpret calls for secession a “divisive agenda” is in itself a political choice under Article 38.

Self-preservation

Nevertheless, self-determination is not merely the right to make a political choice, it is a measure of self-preservation.

The “protection of the marginalised” is among the national values and principles of governance under Article 10. Any marginalised people in Kenya may seek to protect themselves in accordance with Article 10 by exercising their right to self-determination.

Under colonial rule, self-determination was the refuge of those who wanted freedom to self-determination. It is therefore ironic that today, anyone who asserts it is deemed “divisive.”

It is as though, a fiat feeling of national unity is more important than the liberty of a people to flee from unfavourable conditions in their current State. What is the fate of the “self” if as a people the right is kept out of reach by legal complexities?

Self-determination must not be seen from the eyes of colonial light, and neither must it be condemned as evil. Secession is a right under international law and it is unwise to demonise its progenitors. Secession is the realisation that it is better two nations united than one nation with plastic unity.

A collective sense of fiat harmony cannot override the right of a people to evade despotic rule.

By right, secession is the sword against despotic rule, it is the shield for a people who have suffered fundamental exclusion by their government. It is unjust for the law to require the preservation of states as they were arbitrarily created while people suffer under the veneer of national unity.

It is not entirely beneficial to enforce unity by law. Such things as national unity are not legal constructs. They are a matter of national effort. Each state must take a conscious effort to ensure national unity. To enforce unity by law, is to enforce passive violence by force.

CS Lewis said that we cannot make men good by law, for good men do not need the law to be good. National unity, therefore, is not a creature of law and courts should avoid making judgments on the basis of political expediency.

Secession is a constitutional right and is not divisive propaganda. Any group of people that is aggrieved by their existing status as citizens should be accorded the avenues to exercise their rights.

It is unjust to silence the oppressed on the basis that we are uncomfortable with their resort to leave. States are a legal fiction and are not cast in stone, people must be free to leave their states and chart their own paths at any time.

It is illogical to claim that secessionist claims are divisive because unity does not depend on the action from without but from within. If a group already claims that they want to exercise their right to self-determination, it means that there is no unity in the first place.

What is unity if it depends on the silence and inaction of those who already do not feel unified to the rest of the state? The right to self-determination is a right open to all peoples. It is not a preserve of those who merely think that because they are comfortable with the state then the rest should feel the same.

Christopher Rosana is a Nairobi-based lawyer.