Why secession is frowned upon by international community

Talk of secession in some parts of Kenya has gained traction after leaders from the Coast on Friday said they had started taking legal steps towards splitting the region from the rest of the country.

Secession is the withdrawal by a section of country from its institutions and laws and administrative authorities simultaneously with the assumption and or declaration by that territory of a different state altogether.

It is the equivalent of divorce by which a marriage is dissolved and persons who were previously spouses go their separate ways. In corporate law terms, it is the equivalent of a de-merger – the splitting of one corporation into separate units.

It has both political and legal consequences. No country or constitution anticipates that a section of it could secede.

This is why declarations of secession often attract aggressive and even violent opposition from the central authorities in the original state.

Matter of liberty

While the section that seeks to secede sees this as a matter of liberty for its peoples, the central authorities view this as a divisive and treasonous challenge.

The pre-amble to Kenya’s Constitution declares that the country should live in peace and unity as one indivisible sovereign nation.

There was no contemplation within the drafters of the Constitution and the masses who approved it at the 2010 Referendum that Kenya would ever be more than a single state.

Article Five speaks to this by stating that the territory of Kenya shall consists of the land and territorial waters which were under the Republic of Kenya on the date that the Constitution took effect or any additional land which may be defined by an Act of Parliament.

Different country

This contemplates addition to the territory, never any reduction in it.

Secession is never only a matter of national law. There is an international dimension to it. That is, even if a section of a country were able by some means to carve itself out and declare itself a different country, this would be of no consequence if the new state were not recognised as such by the international community.

A state is not merely a group of people who occupy a piece of territory and declare themselves a nation.

International law

There is a dimension of acceptability by other states for its claim to statehood to be complete. Somaliland, which is yet to be recognised by any government despite its separation from Somali in 1991, is an example.

While it may be argued that the right to self-determination includes the right to secede, the acceptance of the right of such people to secede and declare themselves a separate state is one which is not readily accepted in international law.

The believers in this principle readily quote Woodrow Wilson’s words that no group of persons should be forced under sovereignty which they do not wish to abide.

International law does not readily recognise the right of national groups as such to separate themselves from the state in which they form a part of by simply expressing the wish to become another state.

Writer is head of legal services at NMG

*Article first published on http://www.nation.co.ke

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