Yussuf Ahmed Hassan

RIGHT OF PEOPLES TO SELF-DETERMINATION: THE NFD

CASE IN KENYA.

Constitutional law and Human Rights/May/2020 Independent written essay

Supervisor: Markus Naarttijärvi

2

Abstract:

A close look at the history of self-determination in the United Nations and its

relationship to decolonization in Africa illustrates how member states have carefully

excluded some colonial territories and nations from being counted within the

seemingly inclusive language of “all peoples.” The inherent ambiguity connected with

term ‘peoples’ as well as states preference for non-violability of the national

boundaries and maintenance of friendly relations; added to the dilution of such a

fundamental right to self-determination. It is therefore important to comprehensively

scrutinize the claims of peoples purporting to have been illegitimately left out of the

decolonization framework and subsequently denied their realization of the right to

self-determination.

The struggle of the NFD peoples for self-determination presided Kenya’s

independence, and was primarily premised on their will to restore their colonially

impaired (cultural, social, economical, ethnical, racial and linguistic) unity with the

rest of the Somali peoples in the Horn of Africa. The right of the NFD peoples and the

rest of their Somali kindred to self-determination and national unity did not have to be

complicated by or equated with Kenya’s claim of title based on a unilateral colonial

transfer continuously contested by the peoples.

We further deduce that although Britain and Kenya military strategy, to forcefully

suppress the peoples declared choice of independence, as well as Africa’s policy of

inviolability of colonial boundaries have so far impeded the realization of self-

determination on the part of NFD peoples; Kenya’s continued disregard of the

peoples interest and extreme violations of their human rights and freedom might have

the drastic but legitimate effect of challenging her jurisdiction over NFD.

3

Abbreviations AU African Union

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social, and Cultural Rights

HRW Human Rights Watch

ICJ International Court of Justice

KNCHR Kenya National Commission on Human Rights

MP Member of Parliament.

NEP North Eastern Province

NFD Northern Frontier District

NFDLA Northern Frontier District Liberation Army

NGO Non-Governmental Organization

OAU Organization of African Union

UDHR Universal Declaration of Human Rights

UNDRIP United Nations Declaration on the Rights of Indigenous Peoples

UN United Nations

4

TABLE OF CONTENTS Pages Abstract Abbreviations 1. Introduction 5-6 1.1 Background 5 1.2 Aim 6 1.3 Method 6 1.4 Outline 6 2. Scope of Self-determination and its applicability the NFD Peoples 7-14 2.1 The Codification of Self-determination as a Legal Principle 7-9 2.2 NFD Peoples Case and the Meaning of the “Self” 9-12 2.3 The Scope of the “Determination” as Applied to the NFD 12-13 2.4 Self-determination as Imposing Obligations of Jus cogens 13-14 3. NFD Self-determination Versus Kenya’s Territorial Integrity 15-21

3.1 Self-determination versus Territorial Integrity 14-16 3.2 African and Asian Peoples Support for Somali peoples Demands. 16-17 3.3 NFD Peoples Right to Self-determination in Light of OAU Charter. 17-19 3.4 Conflicts Between International Law and Regional Rule 19-20 3.5 The Legality of Kenya’s Tittle Over NFD 20-21

4. Current Prospect of NFD Self-determination 21-29 4.1 Continued Securitization of the NFD 21-24 4.2 Perpetual Discrimination and Denial of Citizenry Documents 24-26 4.3 Systemic Economic Marginalization of the Region 26-29 Conclusion: 29-30 Bibliography: 30-33

5

1. Introduction 1.1 Background The Northern Frontier District (NFD) is a colonial geographic term referring to vast area in the North and North-Eastern Kenya, exclusively inhabited by Somali Peoples. Until the Imperial partition of Somali peoples land by competing colonial powers in the latter half of the 19th century, the area was part of the larger Somalia. The people were organized and led by assemblies of elders. They had highly decentralized traditional institutions consistent with their pastoral nature of life and tribal genealogies.1 They also formed a well-defined geographical, linguistic and cultural unit together with their Somali brothers in the horn of Africa.2 The imperial powers signed protectorate treaties with the local leaders and consequently divided the peoples into five territories, namely: Italian Somali-land in the South and British Somali-land in North (which merged at independence in 1960 to formed the Republic of Somalia), French Somali-land (current Djibouti), NFD and Ogden which were also administered by the British and later transferred to independent Kenya and Ethiopia, respectively.3 Between 1896-1926, the British administered NFD as part of the present day Jubaland in Somalia.4 It then ceded the Jubaland province to Italy and designated the NFD as a separate “closed district” until 1963, when the British handed over the territory to Kenya without the consent of the inhabitants.5 The NFD peoples new little about the newly formed Republic of ‘Kenya’ and were always zealous for the realization of their own independence as verified through a plebiscite conducted in 1962, a year before Kenya’s independence. The peoples unanimously voted for independence and subsequent re-union with Somalia.6 The British unilateral decision aroused hostility in the District and in the Somali Republic, which aspired to restore the unity of the Somali peoples separated by artificial colonial boundaries.7 Somalia broke off diplomatic relations with Britain. The NFD people renewed their armed struggle and refused to participate both in the Kenya Constitution writing and the 1963 elections. Outraged by British and Kenyan rejections of their demands for self-determination through peaceful means, the NFD peoples formed Northern Frontier Districts Liberation Army (NFDLA), which commenced an armed struggle for liberation widely known as the “Shifta War”.8 The active armed struggle dragged until 1969, when Kenya military, which enjoyed unfettered support from the British, generally managed to suppress the liberation front through unbridled use of force. However, to this very day, the NFD people assert that they are considered as a natural enemy to Kenya and consequently endure perennial military subjugation, economic marginalization and systemic discrimination.9

1Ahmed, Ismail. "Understanding Conflict in Somalia and Somaliland." In Comprehending and Mastering African Conflicts, edited by Adebayo Adedeji, London, 1999, p. 238. 2 Lewis, I. M. "Recent Developments in the Somali Dispute." African Affairs 66, no. 263 (1967): 104-12, p. 104. 3 Lewis, I. M. "The Somali Republic since Independence." The World Today 19, no. 4 (1963): 167-74. P. 172. 4 Sanger, Clyde. Malcolm MacDonald: Bringing an End to Empire, MQUP, 1995. p. 398. 5 Mohamed Haji Ibrahim Egal. “Somalia: Nomadic Individualism and the Rule of Law.” African Affairs, vol. 67, no. 268, 1968, pp. 219–226. p. 223. 6Ibid. p. 223.7 Lewis, I. 1963, p. 172. 8 Branch, Daniel. "Violence, decolonisation and the Cold War in Kenya's north-eastern province, 1963–1978." Journal of Eastern African Studies 8.4 (2014): 642-657. p. 644. 9 See: Yash, Ghai. ”Justice And Dignity of The Marginalised Communities.” The Star Kenya, July 12, 2014. https://www.the-star.co.ke/siasa/2014-07-11-justice-and-dignity-of-the-marginalised-communities.

6

1.2 AIM OF THE RESEARCH The main purpose of this paper is to interrogate the complex right of self-determination and examine its possible application on the NFD Peoples. I shall attempt to undertake the task through a critical discussion of the following research questions: Who are the legally designated holders of the right of self-determination and how is this right realized according to international law? How does the right to self-determination apply to the Somali peoples in NFD and by extension in Ogaden or even in Somalia? How is the current situation in NFD and does it matter in relation to the right of peoples to self-detrmination under international law? My close links to the area and the endless claims of suffering on the part of the civilian population in the area informs my choice of the topic. It is out of a strong sense of responsibility that I appreciate the need to conduct critical assessment of the case with the view to helping contribute towards the finding of a durable solution. 1.3 METHODOLOGY The NFD peoples claim for self-determination has been a historical one just the same way the evolution of the right to self-determination in international law happened through a historical process. Therefore, I shall rely a lot on history books and articles relating to the larger Somali peoples past, in addition to Kenya, in order to better understand the case. Facts established from the said primary sources shall be assessed while making reference to my parallel study and understanding of self-determination all through it inception and development as a right in international law. My legal analysis shall depend on relevant legal books, articles, United Nations documents relating to the right of peoples to self-determination including treaties and declaration. I shall also attempt to study and refer to similar claims of self-determination by peoples particular where the International Court of Justice (ICJ) was involved. Finally I shall look into the current situation as reported in human rights organizations reports and online daily newspapers in order to mirror the events in the light of self-determination as established in international law. Difficulty to find any specific legal source regarding the NFD case was the main challenge faced. However, my supervisor’s generous support and academic guidance have proofed to be very invaluable. I am therefore, very much indebted to him and by extension the rest of my teachers and support staff at Umea University. 1.4 OUTLINE The study is divided into four chapters; the first chapter the first chapter provides a brief introduction regarding the NFD case and further stipulates the aim of the research. The second chapter shall explore both the meaning and scope of self-determination, and further provide a critical assessment of the applicability of self-determination to the NFD. The third chapter analyzes the competing relationship between self-determination and the concept of territorial integrity. It also explains the Organization of Africa Unity (OAU) standpoint on the later issue, and scrutinizes the legal implication of the same for Self-determination and decolonization as proclaimed by the U.N. The fourth chapter investigates the current situation while considering the future prospect of NFD self-determination, in the light of both the alleged perennial subjugation and the 2010 constitutional changes in Kenya.

7

2. Scope of Self-determination and its applicability the NFD Peoples 2.1 The codification of Self-Determination as a legal principle The roots of self-determination can be traced back to the civil and political conflicts experienced in Europe since the seventeenth’s century. James Summers’ observes that, the Peace of Westphalia 1648, ‘laid the foundations for the doctrines of liberalism, nationalism, international law and the right to self-determination’.10 John Locke’s liberal ideas, which regarded government as a trust founded on the consent of the governed instigated the local populations’ demands for more freedoms and independence. Nation states emerged as individuals and groups pressed for the return of power to the hands of the governed.11 The principle developed naturally, and both, the American Declaration of Independence (1776) and the French Revolution (1789) alleged adherence to the desires of the populations concerned. The Bolshevik revolution of 1917, invoked the right of nations to self-determination while emphasizing on the need to liberate colonial peoples.12 However, the principle was misapplied in French for it was used to justify the annexation of lands belonging to other sovereigns.13 Plebiscites were only valid if the vote was pro-French.14 Self-determination was considered a form of a collective assertion of the population against any domination, the underlying theory being that ideally a nation state is a one-nationality state. Self-determination is thus a concept of liberation.15 Self-determination emerged on the international scene at the end of the First World War. The victorious powers that gathered at Versailles in 1919, undertook to respect the aspiration of peoples.16 The consideration given to the principle of nationality in delineating the frontiers of the new Europe is considered to be the precursor of today’s concept of self-determination.17 However, the principle was considered only for nations that were within the territory of the defeated empires, and was never thought to apply to overseas territories.18 President Wilson envisaged self-determination as a liberal order intended to gradually end imperialist systems peacefully while Lenin saw it as a revolutionary principle for granting independence to nationalities oppressed by central governments and peoples subjected to colonialism.19 Whereas Wilson’s conception was based on the notions of freedom, equality and wider representative governance aimed at accommodating minority groups,20 Lenin emphasized the right of colonial peoples to engage in armed violence to attain independence21

10 Summers, James. ‘Peoples and International Law: How Nationalism and Self-determination Shaped a Contemporary Law of Nations’, (Martinus Nijhoff, Leiden, 2007) p. 88. 11 Ibid. P. 94. 12 Musgrave, Thomas D. Self-Determination and National Minorities, Oxford Monographs in International Law. Oxford: Clarendon Press, 1997, p. 19. 13 Cassese, Antonio. Self-determination of Peoples: A Legal Reappraisal, (Cambridge University Press, Cambridge, 1995) p. 12. 14 Cassese, Antonio, 1995, p. 12. 15 Smith, Rhona. Test book on International Human Rights, 3rd ed. (Oxford University Press, Oxford, 2007). p. 255. 16 Summers, James, 2007, p. 125. 17 Smith, Rohna, 2007, p. 256. See also: Moore, Margaret. National Self-Determination and Secession. Oxford; New York: Oxford University Press, 1998, p.136. 18 Hannum, Hurst. Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights.

Rev. ed. Philadelphia: University of Pennsylvania Press, 1996, P. 28 19 Cassese, Antonio, 1995, p. 21. 20 Ibid. p. 23 21 Hannum, Hurst, 1990, p. 32

8

However the principle remained a political philosophy22 as both men rejected exercise of the theoretical right to secession from their own territories but did recognize some fundamental group and individual rights to their subjects in a meaningful way.23 Although, the League of Nations did not codify self-determination as rule of international law; it accepted it as a principle of justice and liberty24 and made referenced to it in the institution of the mandate system.25 The “mandate” was a legal instrument that contained the terms for administering the territories (annexed from the defeated states) on behalf of the League. The proposition here was that ‘the well-being and development of such non- independent peoples form a sacred trust of civilization’. 26 The ‘sacred trust of civilization’ was the self-determination and independence of the peoples concerned.27 Self-determination has an extensive presence in international law since 1945. It is expressly mentioned in article 1(2) and article 55 of the charter of the United Nation28, albeit in the context of friendly relations between nations. Article 1(2), which falls under the purposes of the United Nations, proclaims the development of friendly relations among nations, based on the respect for ‘the principle of equal rights and self-determination of peoples’. Article 55 explicitly mentions the principle of self-determination while reiterating the need for promotion of co-operation in the other spheres; economics, social, education, culture, health, human rights and fundamental freedoms. Chapters XI, XII, and XIII of the charter contains an implicit reference to self-determination. Chapter XI, which concerns non-self-governing territories, was specifically meant to form the basis for decolonization. Chapter XII, article 76, implicitly recognizes the principle of Self-determination as an objective of the trusteeship system. The trusteeship system was intended to promote the welfare of the native inhabitants and to advance their progressive development toward “self-government, or independence.”29 The United Nations, thus, laid down the legal rules governing this amorphous subject.30 The imperative that crystallized self-determination as a right under the ambit of the United Nations was the desire to decolonization,31 which was perceived and relied upon as a legal entitlement.32 The evolution of self-determination in the UN Charter culminated in the adoption by the UN General Assembly in 1960 of the Declaration on the Granting of Independence to Colonial Countries and Peoples.33 The principle was regarded as a part of the obligations stemming from the charter.34 22 Cassese, Antonio. 1995, p. 321. 23 Hannum, Hurst, 1990, p. 33. 24 See the Aland Island case before the first session of the League of Nations. The Committee of Rapporteurs stated: ‘This principle is not, properly speaking; a rule of international law and the League of Nations has not entered it in its covenant.…. It is a principle of Justice and of liberty….’ Quoted in Crawford James, 2006, p. 111. 25 Shaw Malcolm, Title to Territory in Africa: International Legal Issues (Clarendon Press, Oxford, 1986) p.60. 26 Ibid. p. 60 27 Ibid. p. 289. 28 Charter, U. N. "United Nations Charter." Chapter One, Purposes and Principles, Article one, available at: http://www. un. org/aboutun/charter/(accessed 20 September 2004)(1945). 29 UN Charter, 1945, Article 76 (b). 30 Cassese, Antonio, 1995, p. 65. 31 Smith, Rhona, 2007, p. 257. 32 Cassese, Antonio, 1995, p. 65. 33 Resolution, U. N. G. A. 1514 (XXV), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, UN Doc. A/RES/1514 (XV), 1960. 34 Brownlie, Ian, Principles of public International Law, 6th Ed, (Oxford University

9

On 16 December 1966 the General Assembly adopted the two International Covenants (ICCPR35 and ICESCR36) which provided in their common article: 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. The Declaration of principles of International Law Concerning Friendly Relations and Co-operations among States in accordance with the charter of the United Nations was unanimously adopted without a vote on 24 October 1970,37 herein cited as General Assembly resolution 2625 (XXV).38 Shaw Malcolm asserts that the Declaration itself constitutes an interpretation of the Charter provisions and thus highlights the provisions which are to be regarded as valid binding laws.39 With the adoption of this Declaration, the principle was elevated to the position of an unconditional right for peoples under "alien, colonial or oppressive domination" for it called for a "speedy and unconditional end to colonialism in all its manifestations."40 However, the use of the words ‘State’ and ‘Country’ in the Declaration added to the existing complication in the definition of the rights of ‘peoples’ to self-determination.41 2.2 NFD Peoples Case and the Meaning of the “Self” Common article 1, sub-section 1 of the 1966 UN Covenants, and article (2) of the1960 General Assembly Resolution 1514, the Declaration on the Granting of Independence to Colonial Countries and Peoples; provide that "all peoples have a right to self-determination"42. However, the UN neither defined what the term “all peoples” meant nor definitely resolved who or what the right to self-determination applies to. The lack of a clear definition continues to complicate the practical application of the right. Nonetheless, all the international instruments relating to self-determination demonstrate a high sense of consensus that the right applies to all non-independent peoples, or more precisely; peoples under colonial or ‘alien’ domination and exploitation, the inhabitants of trust territories, non-self-governing territories or “all other territories that have not yet attained independence.”43 However, all these categories of peoples and territories were not sufficiently identified or clearly defined, too. For example: Non-Self-Governing Territories44 were narrowly recognized as Press, Oxford, 2003) p. 554. 35 Assembly, UN General. “International Covenant on Civil and Political Right (ICCPR) s, 16 December 1966, United Nations, Treaty Series, vol. 999." 171. 36 Assembly, UN General. “International Covenant on Economic, Social and Cultural Rights (ICESCR), 16 December 1966, United Nations, Treaty Series, 993." (1966): 3. 37 Shaw, Malcolm, 1986, p. 81. 38 Res, U. N. G. A. 2625 (XXV)‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’ (adopted without vote)(24 October 1970) UN Doc A. RES/25/2625. It proclaimed the principle of self-determination together with six other principles relevant to the issue including; The prohibition against intervention and the forceful deprivation of the right of peoples to self-determination and national identity, the inviolability of the territorial integrity and national unity of any state, the sovereign equality of people’s and states, as well as the duty of states to promote human rights in accordance with the Charter 39 Shaw, Malcolm, 1986, p. 81-82. 40 Rehman, Javaid. 2010, p. 477. 41 Jayawickrama, Nihal. The Judicial Application of Human Rights Law (Cambridge University Press, Cambridge, 2002) p. 226. 42 U.N. GAOR Res. 1514 (XV), Supra note at 33. See also: ICCPR, Supra note at 35. See also: ICESCR, Supra note at 36. 43 Pomerance, Michla, 1982, p. 14. 44 A Non-Self-Governing Territory is defined as “a territory which is geographically separate and is distinct

ethnically and/or culturally from the country administering it; and which is subject to administrative,

10

those separated by salt water from their colonial masters, who are all white European.45 In the African context, the meanings terms ‘colonial, alien, racist’, had, in practical terms, been reduced to apply on European colonizers. 46 The Somali representative to the General Assembly debate on the Declaration concerning colonial independence argued that the right is not, only for people’s against overseas powers but also against the domination of overland colonial powers.47 However, the timing and combined spirit of the UN Charter and all the above referenced declarations are important in the identification of the beneficiaries of self-determination. According to the implicit meaning of UN Charter articles 73 and 76, the inhabitants of both non-self-governing territories and trust territories were to be prepared and assisted towards the realization of self-determination and independence. The characteristic necessary for the identification of non-self-governing territories can be found in Resolution 1541 (XV)48 entitled, “Principles Which Should Guide Members in Determining Whether or not an Obligation Exists to Transmit the Information Called for under Article 73e of the Charter”. The Resolution was thus concerned with identifying the features of a non-self-governing territory’s status.49 Principle IV of the Annex provided: “Prima facie there is an obligation to transmit information in respect of a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it”.50 As such NFD fits into the categorization of non-self-governing territories. The British have ever (1896-1963) administered NFD as a distinct colony and separate from Kenya. One might argue that, the famous 1946 proposal in the UN by the then British Foreign Secretary, Ernest Bevin, to create a United Nations Trust Territory51 uniting all the five imperially divided Somali territories is an acknowledgement of their recognition as part of the non-independent peoples or non self-governing territories qualifying for UN facilitation towards independence. The 1962, British practical conduct of a plebiscite in the NFD territory might also be understood to imply the

political, judicial, economic, or historical factors that arbitrarily place it in a position or status of subordination”. See: Roth, Brad R. Governmental Illegitimacy in International Law. (Oxford: Oxford University Press, 1999, p. 210.

45 Bowet, D. W. ‘Self-Determination and Political Rights in Developing Countries’ 60, American Society of International Law Proceedings 129, 1966, p. 137. The UN emphasized on this view of geographical separation together with the more restrictive interpretation of Chapter XI as to apply only to territories known as colonies at the timing of the passing of the Charter. Belgium boldly challenged the view as discriminative and to the disadvantage of peoples, which are not yet completely self-governing. For more on “Belgium Thesis” see Crawford, James, 2006, p. 607. 46 Pomerance, Michla, 1982, p. 15. Gros Espiell report is illustrative of the same conviction; “Colonial or alien domination” means any kind of domination whatever form it may take, which the people concerned freely regards as such. It entails denial of the right to self-determination, to a people possessing that right, by an external, alien source. Conversely, colonial and alien domination does not exist where a people lives freely and voluntarily under the legal order of a state, whose territorial integrity must be respected, provided it is real and not merely a legal fiction”. Quoted in Pomerance, Michla, 1982, p.14. 47 Emerson, Rupert. "Self-Determination Revisited in the Era of Decolonization." Harvard: The Center for

International Affairs, Harvard University, 1964, p. 50. 48 Resolution, UN General Assembly. "1541 (XV)(Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for Under Article 73 (e) of the Charter)." (1960). 49 See: Reisman, W. 1983, PP. 161-162. 50 Resolution 1541, Supra note 48 51 See Reinsman, W. Michael, 1983, p. 153. Earnest Bevin, then British Foreign Secretary, recommended a greater Somalia: “we propose that British Somaliland, Italian Somaliland and the adjacent part of Ethiopia, if Ethiopia agreed, should be lumped together as a trust territory, so that the nomads should leave their frugal existence with the least possible hindrance and there might be a real chance of decent economic life, as understood in that territory”. However, the proposal failed after it was opposed by the United States, which was offered by Ethiopia a variety of inducements including a concession for oil.

11

same recognition. British defiance of the expressed wishes of the NFD peoples constitute not only a negation of her obligation to promote the free will of the peoples; but further amounts to a contravention of the legal requirement to refrain from use of force to deprive the peoples of their right to self-determination, freedom and independence as enshrined in several international human rights instrument.52 The ambiguity inherent in the definition of the term ‘peoples’ is furthered by the use of other terms such as “nation”, “state” and “country” in the same context especially under the Declaration of principles of International Law Concerning Friendly Relations and Co-operations among States adopted in 24 October 1970. States opposing the right of self-determination of peoples, thus, tend to play with the same words and claim the rights to their side while depriving it from its legitimate beneficiaries. 53 Nevertheless, self-determination can be interpreted as the right afforded to the entire population of a sovereign State, that is, the right to have a representative and democratic government.54 Experts’ definition of the term “peoples” debated at the San Francisco Conference convened by UNESCO in 1990 seems to provide a practical attempt towards genuine revival of the quite stagnated right. It suggests that peoples, for the purposes of the rights of peoples in international law including the right to self-determination, have the following characteristics:55 1. A group of individual human beings who enjoy some or all of the following common features: (I) A common historical tradition; (ii) Racial or ethnic identity; (iii) Cultural homogeneity; (iv) Linguistic unity; (v) Religious or ideological affinity; (vi) Territorial connection; (vii) common economic life. 2. The group must be of a certain number who need not be large (e.g. the people of micro states) but must be more than a mere association of individual within a state. 3. The group as a whole must have the will to be identified as a people or the consciousness of being a people allowing that groups or some members of such groups, though sharing the foregoing characteristics, may not have the will or consciousness. 4. Possibly, the group must have institutions or other means of expressing its common characteristics and identity. NFD peoples meet all the above-mentioned objective and subjective components of the definition. They are not only racially distinct from the rest of the peoples in Kenya who were administered differently from them in a separate territory; but, in contrast, they share linguistic, cultural, religious, historic, racial, strong national consciousness and even economic ties with the rest of the Somali peoples in contiguous territories imperially separated in 1880s56. I. Lewis, correctly notes that “Unlike so many other cases, Somali cultural nationalism is a centuries old phenomenon and not something which has been recently drummed up to give credence to political claims”.57 In this regard, the NFD peoples might be classified both a “nation” and as “peoples” in line with the meaning of the right self-determination. This applies to them regardless of whether they are considered as part of the larger Somali peoples or as a single unit in NFD territory. 52 See Declaration on Friendly Relations, supra note at 38. 53 Pomerance, Michla, 1982, p. 15. 54 Cassese, Antonio, 1995, p. 102. 55 Quoted in Smith, Rhona, 2007, p. 255. 56 Lewis, I. M. A Modern History of the Somali: nation and state in the Horn of Africa. Ohio University Press, 2003, p. 108. 57 Lewis, I. M. Nationalism & Self Determination in the Horn of Africa: Ithaca, 1983, p. 9.

12

The NFD territory was administered separately as a closed district until 1963 when Kenya attained independence. The area’s geography forms a natural continuity of the Somali arid/nomadic land, and is clearly distinct from the highland of Kenya farmers. No official borders exist between the NFD and the adjacent Jubaland territory in the Somali Republic; in contrast to the colonial borders separating NFD and Kenya before 1963, which are well known and quite natural. Movement of peoples, goods and animals across all the Somali territories is unregulated and there is high level of interdependence between the Somali social- economic structures. The above referenced General Assembly resolutions and the1966 covenants; not only recognize self-determination as a fundamental right for all peoples under "alien, colonial or oppressive domination" but additionally, both Resolution 1514 (XV) and Resolution 2625 (XXV) provide that “"any attempt at the total or partial disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United nation”. The use of the words “colonial countries and peoples” in the title of Resolution 1514 as read with the overall meaning and spirit of the other UN documents; give impression that the two words are interchangeable in the sense that, territorial integrity might be attributed both to an independent country and non-independent peoples. The present claims regarding unceasing use of violence and discrimination, on the part of the Kenyan government, against the NFD peoples equally have the effect of reinforcing the peoples claim for self-determination. Resolution 2625 (XXV) went beyond the call for a "speedy and unconditional end to colonialism in all its manifestations." And concede a right to exercise self- determination against any non-representative government. The prohibition of “actions which would dismember or impair the territorial integrity of an independent state”, was made conditional to the states "compliance with the principle of equal rights and self-determination of peoples” and representation of “the whole people belonging to the territory without distinction as to race, creed or colour”58 2.3 The Scope of the “Determination” as applied to the NFD The possible meanings and forms of self-“determination” has been spelt out in the UN Declaration on Friendly Relations which states: “The establishment of a sovereign and independent state, the free association or integration with an independent state or the emergence of any other political status freely determined by a people constitute modes of implementing the rights of self-determination by that people.”59 UN practice shows that self-determination has been greatly associated with independence more than the other two modalities of association and integration. This is explicit in the very title of resolution 1514 “Declaration on the Granting of independence to Colonial Countries and peoples”; and paragraph 3, which seeks to bar any delay in the grant of “independence”; while also paragraph 4 refers to the right of dependent peoples to “complete independence”. Self-determination has been understood to mean a right to independent statehood because of the strong importance it was considered to have for cultural or natural communities realization of rights and freedoms.60 It worth noting that NFD peoples did actually express their will in the 1962 plebiscite when they unanimously chose independence and future re-union with

58 Declaration on Friendly Relations, supra note at 38. 59 Ibid. 60 See, Anaya, S. J. (1998). Indigenous Peoples and International Law Issues. In Proceedings of the ASIL Annual Meeting (Vol. 92, pp. (96-99). Cambridge University Press, p.98

13

Somalia. Pomerance Michla asserts that ‘a people must be allowed the option of independence when deciding their future political status, and that, moreover, any decision to merge with an already existing political unit must follow independence, as in the union of Zanzibar and Tanganyika, and cannot be substituted for it.’61 The NFD peoples choice of association with the Somali Republic was foreseeable given the cultural, ancestry and historical ties.62 On the contrary, it was difficult to conceive such a voluntary association or integration with Kenya because of the profound difference and disconnect between the two peoples and their territories. The British government prevailed over the Kenyan leaders to accept a federal constitution, arguing that the arrangement would provide a degree of autonomy to the NFD peoples. Nonetheless, the NFD leaders who boycotted the constitution making, announced their rejection of Kenya’s jurisdiction and further called for the respect of their right to self-determination. The new Kenyan leaders resorted to the use of military power in order to suppress the peoples wishes and further enacted a centralized constitution in 1964.63 The Somali Republic has since 1963, demonstrated its acceptance of a Tanzanian proposal calling for the creation of a Federation of Eastern African States which incorporates all Somali inhabited territories. Such an inclusive structure would help unite the brutally impaired national unity and obviate differences between old antagonists. Kenya showed some acceptance of this model at the onset only to later undermine its possible realization. The implementation of any of the above three options requires the free, voluntary and informed choice of the peoples in the territory. The International Court of Justice has always emphasized, as is evident in both its Advisory Opinions on Namibia in 1971, and on Western Sahara in 1975, the legality of “the free and genuine expression of the free will of the peoples of the territory”.64 Kenya’s obsession with frontier land for supposed security reason and interest in possible oil deposits in the area should not have been allowed to override the right of the land owners to freely determine its future destiny. A close study of the applicable international instruments and more specifically the International Covenants of Human Rights, suggest the meaning of Self-determination include; the right of all peoples to freely determine their political status and freely control their natural wealth and resources while pursuing their economic, social and cultural developments.65 2.4 Self-determination as imposing obligations of Jus cogens Although the General Assembly Resolutions are not legally binding documents, they remain indicative of widely held views and its formulations have been substantially followed.66 This may take the form either of a stimulus state practice or of actual State practice or indeed of manifesting the opinio juris,67 (the belief or expression of an accepted legal obligation). Judge Dillard draws attention to the long list of resolutions dealing with self-determination and states that ‘even if a particular

61 Pomerance, Michla, 1982, p. 25. 62 See, Reisman, W. Michael, 1983, p. 170. An actual reunification happened earlier in 1960, between of the Ex-British Somaliland and Ex-Italian Somalia when the two units earned independence. 63 Simala, I. K., & Arrous, M. B. (2009). Whose self-determination? Conflicting nationalisms and the collapse of Somalia. African Studies in Geography from Below, pp. (132-160). p. 149. 64 ICJ, Reports 1975, 32, Para. 55. 65ICCPR, Supra note at 35. See also: ICESCR, Supra note at 36. 66 Crawford, James. 2001, p.30 67 Shaw, Malcolm.1986, p. 88.

14

resolution of the General Assembly is not binding, the accumulative impact of many resolutions when similar in content, voted for by overwhelming majorities and frequently repeated over a period of time, may give rise to a general opinio juris and thus constitute a norm of customary international law’.68 Moreover it is fundamental to note, as Shaw Malcolm states; ‘a norm created as a result of the Charter interpretation will bind all members of the United Nations, while a customary rule will bind all states save those objecting ab initio.’69 State support for a particular resolution or principle, whether by statement or voting constitutes state practice.70 It could be convincingly argued that the inherent principles enshrined in the right to self-determination form part of the norms of jus cogens;71 the body of peremptory norms from which no derogation is permitted.72 These norms are recognized by the international community as a whole as being fundamental to the maintenance of an international legal order. Jus cogens may, therefore, operate to invalidate a treaty or agreement between states to the extent of the inconsistency with any such principles or norms.73 The character of right to self-determination is erga omnes, that is, it belongs to that class of international obligations owed by States towards the community of states as a whole.74 The ICJ affirmed this opinion in both the East Timor case and the Wall in Palestine.75 An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights.76 The emergence of self-determination as a jus cogens is centered upon the consistent and overwhelming bulk of resolutions, declarations and practices regarding the concept for more than six decades.77 Self-determination thereby entered into the realms of public international law as a legal right, and guaranteed exercise thereof became a binding obligation on states.78 However, a critical study of the practice in the General Assembly shows that some States, which have ever been suspicious of the right to self-determination did caused the problem of lack of specification of the areas of its applications; the claimants, the means or the methods of its implementation as well as the permissible outcomes. Strict definitions are primary to all legal instruments. Nonetheless, the meaning of the right to self-determination can be captured from the culmination of such other important issues including the spirit and the timing. Its evolution and acceptance was only after the Great War in Europe. Self-determination should, thus, be regarded as belonging to the body of peremptory norms.79 The British unilateral transfer of NFD to Kenya should therefore be understood as illegal and void the to the extent of its inconsistency and violation of such Jus cogens norm of self-determination. 68 Quoted in Shaw. Malcolm, 1986, p. 89. 69 Shaw, Malcolm, 1986, p. 90. 70 Ibid. p. 88. 71 Cassese, Antonio. 1995, p. 140 72 Summers, James. 2007, p. 387. 73 Cassese, Antonio. 1995, p. 140. 74 Ibid. p. 134. 75 Summers, James, 2007, p. 393. 76 Rehman, Javaid, 2010, p. 477. 77 Hannum, Hurst, 1996, p. 45. 78 Shaw, Malcolm, 1986, p. 91. 79Cassese, Antonio, 1995, p.140. Peremptory norm is a general principle by which a significant number of states feel bound.

15

3. NFD Self-determination Versus Kenya’s Territorial Integrity

3.1 Self-determination versus Territorial Integrity The influence of the principle of territorial integrity may be seen in the Latin American idea of uti possidetis, Ita possidetis, ‘as you possess, so you may possess’, whereby the administrative divisions of the Spanish empire in South America were deemed to constitute the boundaries of the newly independent successor states.80 Much scholarly effort has gone into trying to explain the meaning of a right of all peoples to self-determination in the context of an international legal order that presumptively upholds the sovereignty, territorial integrity and political unity of states.81 The practical application of uti posssidetis in Latin America, Africa, Asia and Eastern Europe revealed that the concept collides sharply with the right of peoples to self-determination as the latter may entail demands for independence and secession. Although there is a universal recognition of the importance of territorial integrity as a functional means of defining existing nations, which ensures order, stability, and finality in relations between states; it hardly stands safe where it is found constituted on illegal basis such as unlawful treaty or defiance of the peoples wishes. 82 Preeminence is accorded to legal title over effective possession [uti possidetis] as a basis of sovereignty”.83 The ICJ Chamber, in the Frontier Dispute Case, affirmed that; “where the act does not correspond to the law, where the territory which is subject to the dispute is effectively administered by a state other than the one possessing the legal title, preference should be given to the holder of the title”.84 Kenya’s claim of title over NFD and its continued consideration of the locals as secessionist is legally questionable no least in the sense its defiance to the peoples demands for independence as ascertained in the 1962 referendum but further because there was no country called Kenya then. The artificial line of uti possidetis cannot override the voice of the peoples concerned. The International court of Justice in the Western Sahara Advisory Opinion, concluded that both Morocco and Mauritania could demonstrate ‘legal ties’, but that it was the will of the people which should prevail.85 Reisman correctly contends: “that case squarely contraposed the policies of self-determination of a people against the territorial integrity of an existing state”.86 In considering the case, the Court was directed by reference of the General Assembly Resolutions relating to decolonization.87 The legal status of the concept is weak since as it “insists on occupation as a basis of sovereignty”88 Uti possidetis have always advantaged the possessor whenever a dispute on the ownership of a real property was raised. The particulars of the case are examined and the burden of proof is usually shifted to the party not holding the

80 Cassese, Antonio. 1995, p.54. See Shaw Malcolm, International Law, 6thed, (Cambridge University Press, Cambridge, 2008) PP. 525-526. The term, uti possidetis, finds its origins in the Roman law of the republican era, in which it meant, that adversary was prohibited from disturbing the status quo. See Ibid, p. 113 81 Anaya S. J. 1998, p. 98 82 Ratner, Steven. Drawing A Better Line: Uti postdates and the Border of New States, 90 American Journal of International Law (1996) p. 600 83 Sharma, Surya, Territorial Acquisition, Disputes and International Law, (Mrtinus Nijhoff Publishers, London, 1997), p.126 84 ICJ Reports (1986) p. 565, para.20. 85 Western Sahara, Advisory Opinion, ICJ Reports 1975, P. 68, Para.162. 86 Reisman, W. Michael, 1983, p. 163. 87 Western Sahara, Advisory Opinion, ICJ Reports, 1975. 88 Sharma, Surya, 1997, p. 123.

16

property even if it was wrongfully taken away.89 Nonetheless, it worth to note that the concept might operate to strengthen self-determination although this can only be true if the territory being held on under the assertion of uti possidetis doctrine was a legal title and the border delineation was made in accordance with the peoples wishes. Shaw Malcolm correctly observes that the ‘link is two fold’90, in the sense that, both the two principles reinforce the norm of non-intervention and render unlawful any territorial diminution of a state which gained its independence on a legal basis of self-determination. Such a state can make a claim of respect for territorial integrity as long as it continues to conduct itself in accordance with the meaning of internal self-determination, which incorporates the other legal principles of democracy and observance of universal human rights. In this regard, we may contend that Kenya neither acquired the NFD legally nor uphold the principles of equality and non-discrimination in its administration of NFD. Uti possidetis does not bar states from altering their borders or even creating new states by mutual consent.91 Nonetheless, such arrangements must be consonant with the wishes of the populations concerned. 3.2 African and Asian Peoples Support for the Somali peoples Demands. Prior to decolonization and independence, Africans were generally dissatisfied with colonially drawn boundaries. 92 The calls for freedom from colonialism were expressed in terms of the universal principle of national self-determination.93 The African nationalists’ perception of a nation was influenced by the European practice. A nation has been defined as ‘a community of people, whose members are bound together by a state of solidarity, a common culture, a national consciousness’.94 The ideas were attributed to the Africans who were moved to Europe in the course of the two World Wars.95 The Pan-Africanism goal of unity was to be achieved through the restoration of lost tribal harmony, and the forward creation of a continental state.96 Both the First Afro-Asian Peoples’ Solidarity Conference (AAPSO) of 1957 in Cairo, Egypt and the first All African Peoples Conference (AAPC) of 1958 in Accra, Ghana provided a platform for the expression of predominant attitude towards realistic decolonization. Both conferences of peoples (not state organizations) passed anti-imperialism resolutions97 denouncing the “artificial frontiers drawn by imperialist powers” and further called upon the independent states in the two continents to support the “the abolition or adjustment of such frontiers at an early date”, and find permanent solutions founded upon the true wishes of the peoples.98 89 Ratner, Steven, 1996, p.593. 90 Shaw, Malcolm, 1986, p. 191. 91 Ratner, Steven, 1996, p. 600. 92 Shaw, Malcolm, 1986, p. 182. 93 Touval, Saadia, The Boundary Politics of Independent Africa. Harvard University Press, 1972, p.20 94 Hugh, Seton-Watson, Nations and States: An Enquiry into the Origins of Nations and the Politics of Nationalism (Methuen, London, 1977) p. 1. The first Somali president, Aden Abdulla, has in his plea to the inaugural meeting OAU defined a nation as “a people usually inhabiting a distinct portion of the earth, speaking the same language, using the same customs, possessing historic continuity, and distinguished from other like groups by their racial origins and characteristics”. See, Healy, Sally. "The Changing Idiom of Self-Determination in the Horn of Africa." In Nationalism & Self-Determination in the Horn of Africa, edited by I. M. Lewis, 93-109. London: Ithaca Press, 1983, p. 100. 95 Touval, Saadia, 1972, p. 20. 96 Mayall, James. "Self-Determination and the Oau." In Nationalism & Self-Determination in the Horn of Africa, edited by I. M. Lewis. London: Ithaca Press, 1983, pp. 82. 97 Touval, Saadia, 1972, pp. 52. 98 All African People’s Conference 1958, Resolution on Frontiers, Boundaries and Federations; See: Touval, Saadia, 1972, p. 56.

17

Additionally, the AAPSO conference, adopted an extra resolutions on the Somali peoples, which categorically stated: “the Conference support the struggle of the Somali people for their independence and recognizes their right to self-determination.”99 The resolutions of the second conference for each of the peoples (AAPSO and AAPC), held in1960, were consistent in their support for the Somali peoples struggle. Both adopted a separate resolution on Somaliland, in which the AAPSO expressed support for the “glorious struggle of the Somali people for their freedom, independence and unification”100, and AAPC declared that the Conference “salutes and applauds the Somali struggle for independence and for the Unity which will give birth to greater Somalia”.101 Ethiopia found itself in awkward position when it attempted to object to the resolution, which passed without vote.102 The AAPSO and AAPC resolutions were thus consistent with the UN system on decolonization, which upheld peoples free choices through self-determination. One will be under obligation to investigate: why both the conferences endorsed specific resolutions on the Somaliland and peoples case. Why the consistency and replication? Shaw Malcolm asserts; “Somalia is unique among African states in being a homogenous nation-state on European lines. It therefore has had no need for the territorial principle of state legitimacy since it possesses its own ethnic raison detre”.103 It also worth noting that the British colonial administration in NFD actually acknowledged the legal entitlement of the peoples to self-determination and as such conducted a plebiscite in 1962; only for the colonial power to defy it later, in the interest of a yet to be born country, Kenya. I shall discuss the legality of Kenya’s title in a separate section.

3.3 NFD Peoples Right to Self-determination in Light of OAU Charter. In late 1960, Ethiopia which felt threatened by AAPC and AAPSO successive support for Ogaden104 and NFD Somali peoples struggle for self-determination, succeeded in convincing the African Heads of States to devise a strategy that serves the purpose of avoiding a likely threat of a revolution from their immediate peoples, and ensure the continued support of their near colonial masters.105 The end result was the formation of states managed Organization of African Unity (OAU) to exclusively administer the continent issues. This represented a shift from the early trend where peoples and liberation movements directly contributed to the adoption of polices.106 Kenya signed a defense treaty with the Ethiopian empire right after her independence in 1963. The treaty was exclusively aimed at the containment of the two Somali territories (NFD and Ogaden) in their respective countries. In the same year, Ethiopia hosted the inaugural conference of the OAU in Addis Ababa and cautioned the new presidents against the revision of the colonial borders.107 The Kenyan delegation accused Somalia of wishing to hide under the guise of anti- 99 Shaw, Malcolm, 1986, p. 198. See also: Touval, Saadia, 1972, p. 52. 100 Shaw, Malcolm, 1986, p.198. 101 Emerson, Rupert, p. 33. 102 Touval, Saadia, 1972, p. 62. 103 Shaw, Malcolm, 1986, p. 197. 104 Ethiopia, which was already an old empire occupying the vast Ogaden Somali territory, equally inherited from the British colonial power, initiated a conference for Independent African States which it hosted in Addis Ababa in June 1960. See: Touval, Saadia, 1972, p. 63 105 Ratner, Steven, 1996, p. 595-596. 106 Touval, Saadia, 1972, p. 63. 107 Shaw, Malcolm, 1986, p. 184.

18

colonialism and true liberation of Africa. The Kenyan memorandum to the conference further stated “the principle of self-determination has relevance where foreign domination is the issue. It has no relevance where the issue is territorial disintegration by dissident citizens”.108 The Assembly of Heads of States and Governments of the OAU passed a resolution which upheld under Article III (3) of the Organization Charter the “respect for the sovereignty and territorial integrity of each state” and for its inalienable right to independent existence”. The same meaning was affirmed in a resolution adopted in 1964 in Cairo.109 However, quite a good number of African nationalists including Kwame Nkrumah of Ghana had reservation in the policy.110 Somalia and Morocco opposed it, although Somalia remained the only country to constantly challenge the verdict strongly.111 Somalia refused to be bound by the resolution,112 and further questioned the fate of the fundamental principle of self-determination as no reference was given to in the resolution. The new African states presidents thus gave the right to themselves as they equated self-determination to the right of the then independent states without any consideration of demands of the peoples of the continent who defeated the colonial powers at the battlefield.113 The big Question remains whether the OAU policy of status quo could be blankly applied to all cases and at all times. A close look at the early AAPC (All African Peoples Conference) and AAPSO (Afro-Asian Peoples’ Solidarity Organization) resolutions show how explicit it was to all, that the Non-Self-Governing territories of Somali peoples were under colonial rule. The AAPC of 1960 was keen to state in the preamble that such conclusions were arrived to “after a careful survey of the situation in Somaliland artificially divided”. The conferences thus endorsed the Somali peoples right to “Unity which will give birth to greater Somalia”114. Off course, the British were first to use the term “greater Somalia” in their 1946 plan, to reunite all the territories inhabited by the Somali peoples. OAU abandoned NFD peoples struggle for decolonization as Self-determination was made synonymous with independence from European rule, and national-self-determination transformed into state-self-determination.115 Neither, the demands of the peoples nor the resolutions of the past conferences were enough to merit the case for self-determination. Self-determination was later incorporated in the Banjul Charter on Human and Peoples Rights, which was adopted in 1981 and came into operation in October 1986. Article 20 (1) states: “All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self- determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen” 116. 108 Emerson, Rupert, 1964, p. 35-36. 109 Cassese, Antonio, 1995, p. 191 110 Nkrumah’s has from time to time, indicated his readiness to revise the evil of the colonial boundaries and preferred a Pan-African Unity which would render present boundaries irrelevant. See Emerson, Rupert, 1964, p. 33. 111 Emerson, Rupert, 1964, p. 33. 112 Shaw, Malcolm, 1986, p. 185. 113 Lewis, I. M. 1983, p. 74 114 All African Peoples Conference Resolution, 1960. See Also, The Resolution of Afro-Asian Peoples’ Solidarity Organization, 1960. 115 Mayal, James, 1983, p. 82. 116 See, Evans, M., & Murray, R., The African charter on human and people's rights: the system in practice, (Cambridge University Press, Cambridge, 1986-2000), 2002, p. 357. Article 20 also states that: 2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means

19

However, the provisions remain vague as no definition was given to the term ‘peoples’ and no attempt made to reconcile territorial integrity with self-determination. The past restrictive trend is still clear from the use of the ambiguous terms “colonial and oppressed peoples” as African states were known to identify colonialism with white rule only. The clause on assistance remains unimaginable, as African states had also vowed to maintain status quo and refrain from interference with each other ‘internal affairs’. The broad provisions have so far not brought any practical change of policy. Realistic transformation is hard to come by as far the same countries that designed OAU policy in 1963 enjoy political leverage and influence in the management of the continental affairs. The African States rigid commitment to the curtailment of self-determination was virtually an Ethiopian ideology, devised in partnership with Kenya, only to legitimize their grip on the Ogaden and NFD territories respectively.117 Therefore, their political strategy continues to complicate the NFD case. It is not clear how the NFD peoples can pursue their legitimate struggle for self-determination, which involves reunification with the Other Somalis without compromising the sovereignty and territorial integrity of Kenya. And how should Kenya avoid any liberation movement and legitimate action by the NFD peoples without violation of their legal right to self-determination? Harmony and stability would have been instilled in the volatile region of the Horn of Africa, if only the case was addressed through the examination of the unique history of the Somali peoples (including those in the NFD) and subsequently allow the subjects to determine their own destiny in accordance with the legal right of peoples to self-determination. 3.4 Conflicts Between International and Regional Law The problem with the OAU adoption of inviolability of colonial borders is not in the logical meaning of the policy but in the timing and the generalization of its application. The policy was to, perhaps, come into force after the completion of the decolonization process. Decolonization could involve the consideration of peoples wishes and investigation of past colonial grievances, as expounded by the Pan-Africanist movements. The African leaders’ de facto policy had the effect of systematically aborting the decolonization process through the total freezer of the right of peoples to self-determination. According to I. Brownlie, the regional rule binds only those states, which have unilaterally declared their acceptance of the principle of the status quo as at the time of independence.118 The issue becomes more critical, where the application of the regional treaty seems to contradict a UN Charter obligation. Article 103 states that in conflicts between the Charter and the obligations of other international agreements, the Charter prevails. African Head of States cannot therefore purport to defy a fundamental rule of the UN, which they undertook to respect at the UN and further under the same regional charter. Article II (e) of the OAU Charter asserts one of the purposes of the organization as “To promote international cooperation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights”.

recognized by the international community. 3. All peoples shall have the right to the assistance of the States parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural. 117 Ibid. p. 74. Lewis, contends that OAU approved the colonial borders only to recognize Ethiopia as a state entitled to claim territorial integrity for it to imperial borders. This “frontier fetishism” of Lenin style marked the feature of Africa since the first phase of decolonization and led to the “Ethiopianization” of Africa. 118 Cassese, Antonio, 1995, p. 192.

20

Self-determination is already a universally accepted principle of jus cogens and a fundamental norm of international law. It therefore binds all states and thus; States cannot, unilaterally or collectively, disregard its application and possible results without dully consulting the population concerned. Any decision to the contrary is therefore null and void to the extent of its inconsistency with the meaning and spirit of such an internationally recognized human right.119 In this regard, OAU might be accused of complacency to the colonial transfer of NFD to Kenya since the new rule of sanctity of borders blocks the possibility of territorial adjustment in accordance with the expressed wishes of the peoples. The policy is thus premised on a procedural illegality, which renders it inconsistent with self-determination and therefore, void. Territorial integrity might be seen to be consistent with self-determination in other cases where the will of the peoples was respected in the original formation of the state. 3.5 The Legality of Kenya’s Title Over NFD The British colonial Administration declared NFD as the seventh province of her other colony, Kenya, months to her granting of independence to the latter, in 1963. Kenya grip over the territory is thus based on this colonial declaration and inheritance. The British decision which instigated more armed violence in the area at the time, is controversial in many respects: The transfer of jurisdiction was not only unilateral and secretly planned with the upcoming Kenyan government but further violated the earlier established wishes of the peoples for independence and re-union with the rest of the Somali peoples in the Somali Republic. Such a transfer of territory is legal only if it has the full consent of the peoples and governments concerned.120 The demands of the NFD peoples for reunion are consistent with the meaning of many international human right instruments prohibiting distraction of the national unity of peoples and nationalities. Resolution 2625 (XXV) attributes territorial integrity and sovereignty to “peoples” of Non-Self-Governing Territories. This is clear, not only from the timing and spirit of the declaration but from the combined weight of the following two paragraphs; “The Territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the state administering it.” “The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention”.121 The British established administration in the area on the basis of protection agreements with the NFD peoples just like those signed with the rest of the Somali chiefs in the other territories. The treaty terms included a declaration by the chiefs and her majesty the queen that neither they nor any of their successors or any of their peoples ‘shall cede or alienate any portion of their territory or independence’.122 It also stated that its purpose was: ‘for the maintenance of our independence, the preservation of order, and other good and sufficient reasons’.123 The validity of this transfer can be examined from the following angles: Firstly, the validity of the cession is directly affected by the validity of the title for 119 Cassese, Antonio, 1995, p. 193. 120 Sharma, Surya, 1997, p. 136; (France has in 1866, ceded the territory of Lombardy to Italy, after it ceded to itself by Austria in 1860). Berubari was ceded to Pakistan by India. 121 Declaration on Friendly Relations, Supra note at 38. 122 Salwe, Abdisalam, 2000, p. 161. 123 Lewis. I. M, 1965, p. 47.

21

the ceding party. Britain did not have the competency to cede the title since it never owned it. Her presence on the land was, to make the matter crucial, determined by a protection treaty. Her actions were a violation of the fundamental trust ‘to protect’, which it undertook through a treaty. In attempting to transfer the land to Kenya, Britain was ironically exceeding her jurisdiction without permission of the primary subjects.124 Secondly, the transfer was illegal from the start since it was contradictory with pre-existing treaty, signed by the British with the NFD peoples who owned the land without contention. Thirdly, the land was not terra nullius.125 This is clear from the fact that Britain recognized the NFD peoples who lived in the land by signing a treaty with them. A support of the argument can be adduced from the International Court of Justice in the Western Sahara Advisory Opinion; “agreements with local rulers, whether or not considered as an actual ’cession’ of territory, were regarded as derivative roots of title, and not original title obtained by occupation of terra nullius”.126 Therefore, Kenya’s claims have no legal basis, insofar as the unilateral transfer is null and void. Finally, the transfer is invalid as it is inconsistent with the right of the NFD peoples to self-determination. States cannot, unilaterally or collectively, decide on possible transfers of territory without dully consulting the population affected. If these conditions are not fulfilled, the treaty providing for the transfer of territory would be contrary to jus cogens and could therefore be declared null and void.127 4. Current Prospect of NFD Self-determination 4.1 Continued securitization of the NFD. Having covered, in the earlier chapters, aspects relating to the possible beneficiaries of self-determination and therein demonstrated the inhabitants of NFD as one among the “All peoples” qualifying for self-determination (particularly in the context of their exclusive history of colonization and consequential connection of their case to decolonization in respect of non-self-governing territories); I now focus, mainly on the recent developments which also have a bearing on the right to self-determination. But since there is a strong interconnection between the past and the present dynamics, a short flashback is necessary. In 1963 when Kenya was being prepared for independence, the British colonial government invited NFD peoples to participate in the making of the first Kenyan constitution. NFD peoples rejected the plan citing the need, for the colonial British government, to respect their earlier demands for self-determination and independence as established in the 1962 referendum.128 When Kenya gained independence in December 1963, it immediately imposed emergency law on NFD and as such domesticated the colonial policy of collective punishment and subjugation aimed at suppressing the peoples and forcing them to abandon their declared wishes for self-rule and independence.129

124 Riesman, W. Michael, 1983, p. 158. 125 Unknown or unclaimed land or uninhabited land which title could be gained by the state which discovered. The term is now past by time for it has long been established that the bare fact of discovery is over since no such territory remain in existent. 126 Sharma, Surya, 1997, p. 141. 127 Cassese, Antonio, 1995, PP. 193. 128 Ahmed I. Hassan, Northern Kenya and the Constitutional Review Process – Lessons from History, 2002, p. 9. 129 See: Hannah Whittaker (2015) Legacies of Empire: State Violence and Collective Punishment in Kenya's North Eastern Province, c. 1963-–Present, The Journal of Imperial and Commonwealth History, 641-657, pp. 643-645.

22

The consistency of Kenya’s actions with that of the British can be understood from the fact that; it is the later which introduced Kenya into the NFD equation through her unilateral cession of the territory. Kenya was equally alien/foreign to the peoples and as such her actions were ultimately colonial in nature.130 In 1992, Kenya further impaired the political unity of the peoples as it unilaterally moved the administration of the three districts (Moyale, Marsabit and Isiolo) of NFD to Eastern province of Kenya while creating a new (8th) province named North Eastern Province (NEP) consisting of the three remaining districts of Garissa, Wajir and Mandera Both the unilateral transfer of the territory and it’s subsequent subdivision as well as the subjugation and oppression of the peoples constitute a clear violation of the peoples rights to self-determination in accordance with the UN Charter and other related human right instruments. Resolution 2625 (XXV) and Resolution 1514 have attributed territorial integrity and sovereignty to “peoples” particularly those living in a distinctively separate colony. 131 The affects of the emergency law, which theoretically ended after 30 years, included wide spread massacres, torture, rape, arbitrary arrest and detentions; as well as destruction and confiscation of properties.132 Subjugation and oppression of peoples clearly violates the provisions of both resolution 1514 (XV) and Resolution 2625 (XVV) as shall also be discussed in the following subtopic. Kenya enacted new constitution in 2010, and the NFD peoples participated in its making although many of their specific demands were not adopted in the final document. Their demands included the reunification of the NFD and formation of an autonomous regional government, the formulation and implementation of a marshal plan to develop the region to breach the dire inequality gab, and the formation of a local police administration to replace the national police and military which were considered to be brutal and oppressive to the peoples.133 The constitution is generally progressive as it contains a strong bill of rights and a good system of checks and balance. However, little has changed for the NFD peoples as the government policy of securitization and human rights violations The Outlying District Ordinance of 1902 effectively declared NFD a closed area; movement in and out was only possible under a special pass. The Special Districts (Administration) Ordinance of 1934, together with the Stock Theft and Produce Ordinance of 1933, gave the colonial administrators extensive powers of arrest, restraint, detention and seizure of properties of ‘hostile tribes’. The latter legalised collective punishment of tribes and clans for the offences of their members. 130 Daniel Branch, 2014, P. 642. He further argues that “the compromises made between British and Kenyan actors allow us to understand the particular nature of the Kenyan state’s actions in north-eastern province” over the period. 131 Declaration on Friendly Relations, Supra note 38. Suchmeaningisclearfromthecombinedweightofthefollowingtwoparagraphs;“TheTerritoryofacolonyorotherNon-Self-GoverningTerritoryhas,undertheCharter,astatusseparateanddistinctfromtheterritoryofthestateadministeringit.”“Theuseofforcetodeprivepeoplesoftheirnationalidentityconstitutesaviolationoftheirinalienablerightsandoftheprincipleofnon-intervention” 132 See: African Centre for the Constructive Resolution of Disputes: (ACCORD), “The Kenyan State Fear The Somali Identity”, 2015, P. 4/ https://www.accord.org.za. Some of the widely documented massacres include: Bulla Kartasi massacre of 1980 where the town's residents were detained in a mini-concentration camp at Garissa Primary School playground and kept for three days without food or water. Human rights organisations estimate the dead at over 3000, with an equal number unaccounted for. The security forces further burnt the whole town. Wagalla massacre of 1984 in which an estimated 5000 Somalis were summarily executed after days of incarceration at the Wagalla airstrip in Wajir district. Other mass killings were recorded in areas such as Malka-mari, Garse, Derakali, Dandu and Takaba areas of Mandera District. 133 Yash pal Ghai, the then chairman of the Kenya Constitutional Review Commission (KCRC) which prepared the first draft, explains that they always tried to balance between the unique needs of the peoples and the requirement to reinforce the unity of the country. The commission therefore recommended, for the whole country, a devolved government with three-tire system: National, Regional and Counties. The regional system, which was in essence meant to resonate with the demands of peoples such as the NFD locals, was also dropped by the national parliament.

23

continues. Human right organizations, both national and international, constantly report about a wide range of human rights violations including; extrajudicial killings, arbitrary detentions, and torture.134 For example, in January 2016, Washington post captured a title: “Ethnic Somalis are dying in Kenya”.135 It made reference to a report released in September 2015, by the Kenya National Commission on Human Rights (KNCHR), documenting “over 102 cases of egregious human rights violations that included 25 extrajudicial killings and 81 enforced disappearances of ethnic Somalis”136 committed in the course of one year period. It further alluded to the existence growing suspicion and a campaign of scrutiny targeting all Somalis in the country. Yash Ghai, a renowned Kenyan constitutional lawyer, recently wrote “Uhuru137 government has persecuted several minority groups in its short life so far and ostentatiously disregarded court orders to stop the harassment of minorities, including the burning of their homes as punishment for disobeying illegal government orders”.138 These violations by the state security intended at quelling the peoples resolve towards self-determination, constitute a direct contravention of numerous number of international human rights instrument including the provisions of UN Resolution 2625 (XXV) which calls upon state “to refrain from any use of forcible action which deprives peoples of their right to self-determination and freedom and independence”.139 The actions might also attract UN demand for responsibility on the part of the state or even justify international intervention as in case of Kosovo. The declaration speaks of “a ‘duty to refrain’ from ‘any use of force” and further provides: “Every state has the duty to promote through joint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter”.140 Summers, James correctly notes that self-determination might be an exception to non-intervention as that is implied in the Declaration on the Inadmissibility of Intervention, which called on states to “contribute to the complete elimination of racial discrimination and colonialism in all its forms and manifestations.”141 These kinds of human rights violations does not only reinforce the peoples original claims but equally have the effect of legitimizing any new claims for self-determination and remedial secession. Kenya’s territorial integrity becomes less important as it collides with human rights protection. In the Quebec case, the Canadian Supreme court had identified physical oppression as one of the important factors to consider when deciding whether a territory has a right to secede from a 134 See Human Rights Watch, World Report 2012 – Kenya. See also the same yearly reports for: 2011, 2013, 2014, 2015, 2016, 2017 and 2018. Several contentious laws are still applied discriminately to the region including: the public order act which allows the interior minister to declare curfews (conducted like emergency law) without seeking approval through parliament. Security forces frequently conduct operations and mass arrests without legal warrants or prosecution. The Kenya Defense Forces (KDF) whose mandate is only to protect Kenya’s territorial Borders from External Aggression is widely used and found to be responsible for most of the abuses. While all police officers are required by law to wear their uniform and display their unique force numbers, those in NFD region carry their weapons publically and without uniform. They conduct their daily duties under search extent of anonymity which obviously abets the culture of impunity in the region. 135 See: Ariel, Zirulnick. “Ethnic Somalis are dying in Kenya, and some say the government is to blame. “The Washington Post, January 8, 2016. 136 See: KNCHR, “Preliminary Report of KNCHR Investigations on Human Rights Abuses in the Ongoing Crackdown against Terrorism”, 2015. 137 Uhuru is the current president of Kenya who was elected to office in 2013 and re-elected in 2017. The credibility of both elections was highly contested. 138 Yash, Ghai. Supra note 9. 139 Declaration on Friendly Relations, Supra note 38. 140 Declaration on Friendly Relations, Supra note 38. 141 Summers, James, 2007, p.332.

24

sovereign independent state. 142 The court denied the question of Quebecois entitlement to unilateral secession on the basis that they “are not manifestly an oppressed people”. However, the court alluded to the fact that physical oppression of a group of people may give rise to self-determination and unilateral secession under international law.143 Moreover, the court raised two other important conditions which the NFD case also fulfills. That is: being a former colony or pseudo-colony.144 Nonetheless, the secession of Bangladesh, South-Sudan, Eritrea and the partition of Yugoslavia are quite good examples, in this regard. 4.2 Perpetual Discrimination and Denial of Citizenry Documents Among the very essential elements, which the principal of self-determination incorporates, are the requirements of non-decimation and equality among the peoples in a polity. This is clear from the letter and spirit of the UN charter and many other international documents including the Universal Declaration of Human Rights (UDHR).145 Resolution 2625 (XXV) made a special mention of the ‘principle of ‘equal rights’ and self-determination’, while further confirming that state’s right to territorial integrity and non-intervention is conditioned by the extent of her compliance with respect for equal rights of “the whole people belonging to the territory without distinction as to race, creed or colour.”146 Despite Kenya’s adoption of a new constitution with a strong bill of rights, the NFD peoples continue to complain of discriminatory laws, regulations, procedures and practices that apply to them and not to other Kenyans. This is especially acute in the area of citizenship and immigration, i.e., in the acquisition of birth certificates, identity cards and passports. 147 The screening exercise of Kenyan Somalis in November 1989 and their frequent indiscriminate arrest and harassment by police are also cited as clear cases of discrimination.148 The population screening exercise was a mass verification programme targeting the NFD peoples and conducted by the government security personnel under the officially pronounced need to ‘expel those found to have sympathy with Somalia.’149 Kenya had further declared “ The Government cannot tolerate citizens who pretend to be patriotic to Kenya while they involve themselves in anti-Kenya activities.”150 Those who failed to satisfy the committee were declared non-citizens and deported to Somalia.151 It worth questioning whether it is legal or even practical to punish peoples because of their natural identity and conscience? How can Kenya continue to hold on the territory when it shows no readiness to recognize the peoples as citizens? What is the way forward for the peoples being declared stateless while living in their own 142 See: Hanna RM. Right to self-determination in in re secession of Quebec. Md. J. Int'l L. & Trade. 1999; 23:213, p. 234. 143 Ibid. p. 234. 144 See: Ibid. p. 241. 145 General-Assembly, U. N. "Universal Declaration of Human Rights (UDHR)." (1948). 146 Declaration on Friendly Relations, Supra note 38. “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”. 147 See: Human Rights Watch, World Report 2014 – Kenya, p. 17 148 HRW Report, “Criminal Reprisals: Kenyan Police and Military Abuses against Ethnic Somalis.” Printed in the United States of America, 2012, p. 15. 149 See: Ahmed I. Hassan, 2012, p. 16-17. 150 See: Ibid. p. 17. 151 See: Ibid, p. 17. The successful ones were issued with a pink certificate known as ‘screen card’ which is being used to this very day as a requirement for official services applications such as identity cards for children attaining the age of 18 years.

25

ancestral homeland? Article 15 of the UDHR provides: 1.“Every one has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.152 New births are hardly registered on time while parents are often asked to produce the same whenever they seek services. The peoples are segregated and subjected to extraneous procedures and interviews whenever they apply for identity cards or passports. They are exceptionally required to present their parents original identity documents.153 Some are even asked to present their parents for extra interviewing, and occasionally referred for DNA testing to confirm parentage. This is an indication of the extent of profiling and lack of legal limits such as the requirement to respect privacy of persons as provided for under article 12 of the UDHR.154 Use of the same official documents for travel is also a hustle as security officer normally mount countless barriers along the roads leading to the NFD counties and routinely arrest the Somali peoples or even confiscate their documents on the basis of questionable grounds such as not being proficient with national language of Swahili. None proficiency in Swahili is practically used as enough ground not only to deny the Somalis identity documents but also as a basis to arrest, confiscate any document already acquired or even institute prosecution against them for superficial allegations such as having acquired the identity documents fraudulently. The security personnel are also known to cause such indiscriminate inconveniences and harassments in order to extort money from the desperate citizens.155 This practice is also indicative of the extent at which the Kenyan government is abdicating her responsibility to promote the NFD Peoples own language and cultures. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) which has a bearing with the right peoples to self-determination oblige states to support peoples in developing their own languages.156 Article 55 of the UN Charter makes explicit reference to self-determination and direct states to contribute positively to the promotion of peoples cultures, and observance of international human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.157 The continued application of these controversial measures constitute a violation of the peoples basic human rights since citizenship documents are essential for the enjoyment of many important rights including employment, participation in elections or even seeking medical or educational services abroad. Such official discrimination targeted against the community is also a violation of the peoples right to self-determination. Art. 2 (1) of ICCPR provides “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, 152 Universal Declaration of Human Rights, Supra note 145. 153 Human Rights Watch, 2014, p.17 154 General-Assembly, U. N. "Universal Declaration of Human Rights (UDHR)." (1948). Article 12 provides: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” 155 Human Rights Watch, 2014, p.30 156 General-Assembly, " UN Declaration on the Rights of Indigenous Peoples (UNDRIP))." (2007), Article 13 (1): “Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.” Article 14.3. provides: “States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.” 157 U.N. Charter, Supra note 28.

26

without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. 158 Resolution 1514 (XV) called on all states to immediately end colonialism ‘in all its forms and manifestations’. It thus emphasizes the ‘fact of colonialism and subjugation’ without distinction of who the perpetrator might be159. The Declaration further provides under article 1: “The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co- operation.”160 The same has ben reiterated in Resolution 2625 (XXV) which added that subjugation, domination and exploitation constitutes ‘a violation of the principle’ (self-determination). The Declaration further provides in the pre-ample that “in order to avoid serious crises, an end must be put to colonialism and ‘all practices of segregation and discrimination’ associated therewith”.161 Moreover, the actions clearly violate several provisions of Kenyan constitution (including Articles 2 (6), 21 (4), 27, 56) which not only guarantee equality and freedom from discrimination but further place a duty on the state to carry out its human rights obligations under international law. Article 2 (6) categorically provides “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution ”.162 Therefore, Kenya can hardly make a claim of respect for territorial integrity as long as it continues to conduct herself against the meaning of internal self-determination which incorporates the legal principles of non-discrimination, democracy, good governance, rule of law and observance of universal human rights.163 4.3 Systemic Economic Marginalization of the Region Article 55 of the UN Charter164 explicitly mentions the principle of self-determination while reiterating the need for promotion of fundamental rights of peoples and international co-operation in many spheres including; economics, social, education, culture, health, human rights and fundamental freedoms. Both article 73 (concerning non-self-governing territories) and 76 (trusteeship system) implicitly recognized the principle of Self-determination and emphasized the requirement of progressive advancement of the inhabitants. Article 73 (b) obliged member States responsible for dependencies to promote the welfare of the inhabitants and to develop self-government in those territories. Article 73 (e), obliged administering states to regularly transmit to the Secretary-General, a report relating to specific issues such as the economic, social and educational conditions in the territories. NFD being a non-self-governing territory because of her distinct geographically, ethnically and culturally nature was to benefit from the provisions of this Article. All the essential elements to consider in the identification of non-self-governing territories are elaborated in the Annex provisions of Resolution 1541 (XV).165 The devolved system of government prescribed by the 2010 constitution of Kenya and implemented since 2013 has truly brought some positive change to the livelihoods of the NFD peoples for the first time. However, the impact is quite

158 ICCPR, Supra note 35. 159 See: Reisman, 1983, p.161 160 U.N. G.A. 1514 (XV), Supra note 33. 161 Declaration on Friendly Relations, Supra note 38. 162 Art. 2(6), Constitution of Kenya, 2010. 163 See: Shaw, Malcolm, 1986, p. 191. 164 UN Charter, Supra note 28, Article 55. 165 Resolution 1541, supra note 48

27

minimal, as the region remains largely underdeveloped because of successive governments neglect and denial of basic infrastructure development. The colonial policies of neglect and exclusion remained extended thus resulting in increasing inequality166. Yash Ghai contends “subsequent regimes have used central power selectively, to reward its communities and punish those opposed to or outside to it”.167 According to a recent study on “Regional Disparities and Marginalization in Kenya”, the level of underdevelopment in the counties constituting the former NFD region is severe and unparalleled.168 North Eastern Province (NEP), which consist the counties of Garissa, Mandera and Wajir has the lowest adult literacy rate at 24.8 per cent. The national adult literacy average for all the eight provinces of Kenya is 71.4 per cent.169 NEP represents a 38.1 percentage points below the second lowest province of Coast (62.9) as well as a 63.3 and 55 points below the highest and second highest provinces of Nairobi (88.1) and Central (79.8) respectively. 170 Only 34.6 per cent of the population in NEP has access to safe drinking water, according to the same study. This represents a 62.5 percentage point’s gap between Nairobi (97.1) and NEP. On the standard of living measured using GDP per capita in US dollars; NEP has the lowest annual GDP per capita (US$644) against a national average of US$1, 436. This is less than a fifth of Nairobi’s per capita income and about a half that of the second last province.171 On the Human Development Index (HDI), NEP has the lowest HDI of 0.417 representing some 0.236 indices below that of Nairobi and 1.44 indices below the HDI value for the nation.172 The same trend of disparity is consistent in all the other human development indicators including employment and wage earning as well as poverty index: The proportion of wage employees in Nairobi is about 25.1 per cent of the national wage employment, Rift Valley at 22.5 per cent, Central at 14.2 per cent, Coast at 12.4 per cent, Nyanza at 9.9 per cent, Eastern at 8.3 per cent, Western at 6.6 per cent and North Eastern at 0.9 per cent.173 Overall, the report confirms “North Eastern Province as the least developed region, with a high unemployment rate (34.7%), a low road density (0.1), poor access to water (22.1%), low secondary gross enrollment (4.5%), low doctor/ patient ratio (1:120,823), and low life expectancy (51.8 years)”. The level of inequality and marginalization becomes very clear when one compares NEP perhaps not with Nairobi province, which forms the country’s headquarter, but to a province like Central which has low unemployment rate (6.2%); high road density (2.0%); high access to water (95.9%); and high doctor patient ratio (1:20,715). Again Central Province has the least level of poverty, estimated at 35.3 per cent while North Eastern Province has the highest rate at 73.1 per cent.174 These trends prove the continued strategy of marginalization pursued by the government. On 6th November 2019, all Somali Members of Parliament (MPs) and their county governor’s converged for a press conference in Nairobi to protest and 166 Cottrel-Ghai, Jill, et al. Taking diversity seriously: minorities and political participation in Kenya. London: Minority Rights Group International, 2013, p. 27. 167 Yash, Ghai. Supra note 9. 168 See: Stiftung, F. E. "Regional Disparities and Marginalization in Kenya." Elite PrePress Nairobi, Kenya, 2012, p. 63 169Ibid. p. 63 170 Ibid. p. 63 171 Ibid. p. 66 172 Ibid. p. 67 173 Ibid. p. 70 174 Ibid. p. 80.

28

condemn what they termed as flawed census result. The 2019 census result showed that Somalis population in Kenya grew by 80,000 (2.39 million to 2.47) over the ten-years period between 2009-2019. They argued that the numbers were reduced by the state only to systematically deny them their fair share of budget for growth. Population numbers is the biggest parameter used to divide the national budget meant for the devolved units of government.175 The leaders have often complained of what they alleged as government rejection to disburse equalization funds which had been provided for in the 2010 constitution as a temporary measure (20 years programme) meant to reduce the inequality gab176. The government is blamed for inventing unnecessary bureaucratic hurdles such as lack of ‘legislative framework’ to deny the peoples of their deserved and urgently needed resources. Such lack of commitment by the government is contrary to several provisions of the Kenyan constitution including Article 27 (6), on equality and freedom from discrimination. The article provides: “To give full effect to the realization of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination”. 177 Article 55 of the UN Charter expounded measures and responsibilities expected of all governments towards their peoples and in collaboration with the UN: higher standards of living, full employment, conditions of economic and social progress and development; solution of health related problems; and cultural and educational progression; respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. Further, both article 73 and 76 of the UN Charter, obliged states administering dependent territories to undertake such similar measures aimed at promoting the well being of peoples in the territories. However, social-economic programmes might be undertaken in a progressive manner and realized over a period of time depending on state’s ability. Nonetheless, this argument cannot be plainly used by Kenya because state’s actions must always be justifiable and be devoid of outright discrimination. Ironically, NFD itself (which is highly underdeveloped as explained) hosts some of the biggest security installations in the country which include: the largest military barrack and air space in Garissa and an International military airport in Wajir.178 This implies that the government is only interested in establishing garrisons in the region and determined to deter the peoples from engaging in any possible resistance to her colonial policies and utter disregard for their developmental interest and political aspirations. Kenyan government also severally displaced the peoples forcibly from their land and gave no compensation. About 11,000 acres of land in Isiolo is currently claimed by the Kenyan Defence Forces, which intends to use the area as a training space at the 175 Luke, Awich. “More leaders reject 'sham' census results.” The Star Kenya, November 7, 2019. One of the MPs argued ““We see substantial negative growth in Mandera and other sub-counties which contradicts basic principle population, growth statistics and published regional fertility rate. Not reflective of KNBS projection of the annual rate of 3.2 per cent of NEP counties in 2009,” 176 Constitution of Kenya, 2010, Art. 204. Subsection (2) provides: “The national government shall use the Equalisation Fund only to provide basic services including water, roads, health facilities and electricity to marginalised areas to the extent necessary to bring the quality of those services in those areas to the level generally enjoyed by the rest of the nation, so far as possible”. The functions have since ben devolved to the counties and as such the funds are supposed to be transferred to the counties. The equalization fund represent only one half (0.5) per cent of all the revenue collected by the national government each year calculated on the basis of the most recent audited accounts of revenue received, as approved by the National Assembly. 177 Ibid. Art. 27 (6) 178 See: Jael, Mboga. “President Uhuru to open new Air Base in Garissa.” The Standard Kenya, December 13th, 2019.

29

expenses of the locals who routinely suffer from force evictions and denial of pasture for their herds of camels, cows and goats. In two earlier encounters, soldiers from an existing army camp in the area destroyed community farms and buildings using bulldozers. 179 Such actions contravene the provisions of common article 1 in ICCPR180 and ICESCR181 which assert that “In no case may a people be deprived of its own means of subsistence.” The treaties also make explicit reference to the right of all peoples to self-determination and further require states to respect peoples right to freely dispose of their natural wealth and resources. The government’s continued violation of the peoples constitutional rights to equality and non-discrimination constitute enough legal grounds for them to claim self-determination and subsequent remedial secession. International law has evolved gradually from a state-centered system to one that focuses on the individual. But the same rights given to individuals extend to groups and peoples particularly where they have genuine claim to self-determination. Therefore, “state demands for self- maintenance and order should not absolutely bar valid secessionist movements that would grant new groups the right to self-determination and guarantee individuals the freedom to join with others to pursue values they deem desirable.”182 In conclusion, I may depart a little from the strict legal aspects of the case and reflect on other demographics. Somalis communal sense of doing business built on their strong foundation of trust183 between themselves, and the exponential growth of their population arising from their polygamous lifestyle; leads one to believe that, despite the challenges posed by Kenya’s adverse policies; Somalis are likely to have a considerable impact on Kenya’s internal politics in the near future. Nonetheless, the NFD peoples have a strong case for external self-determination. Conclusion It is quite clear from the context of the NFD case that the OAU policy of inviolability of colonial borders, adopted in the early years of decolonization had the effect of aborting the practical application of self-determination as envisaged by the UN. The Africans Heads of States choice of status quo resonated naturally with large number of international players especially their immediate colonial masters and as such state’s sovereignty and ensuing right to territorial integrity got raised above peoples rights at least in some situations. Territorial integrity is important for stability as is also true for self-determination, but it can only be valid argument where there was no forceful occupation in the original formation of the state. The NFD case is exceptional, as the independent state of Kenya did not exist in 1962 when the peoples in NFD exercised their right to self-determination through a plebiscite and chose to form their own independent state. Further, the peoples demands had to do with their right to restore their colonially impaired unity and nation building with the rest of the Somali peoples in their own contiguous land. Therefore, the case is and was ever a pure case of decolonization and aspiration to achieve a true self-determination. Besides the questionable nature of Kenya’s tittle over NFD and the fact that self-

179 See: Ali, Abdi. “Anxiety as Army eyes training land in Isiolo, Meru.” Standard Kenya, September 17th, 2019. See also: Waweru, Wairimu. “Leaders want Isiolo land adjudication notice revoked.” Daily Nation Kenya, December 15, 2019. 180 ICCPR, Supra note 35 181 ICESCR, Supra note 36. 182 Valentine DA. The Logic of Secession. YALE LJ. 1980; p 89:802, p. 812. 183 Bitange, Ndemo. “In Somali business success, trust plays a vital role” Daily Nation Kenya, September 18th, 2017.

30

determination is a permanent right;184 the never-ending violations of the peoples right makes the case remain lively. It is interesting to see how long Kenya’s strategy to hold on the territory, under the disguise of sovereignty and without regard for the peoples rights and interest, may continue to last. I concur with the view that it is the peoples and not the territory that should decide the fate of the other. Numerous number of UN documents approved by community of nations as early as in the 1960’s and 70’s, expressly indicate the conditionality of human rights compliance for non-interference with state sovereignty. International human rights law has evolved, and even developed in practice through judicial means to an extent one can rightly argue that such extreme violations by the Kenyan government attract not only the possible invocation of the right to self-defense and liberation by the peoples concerned but also opens the door for the international community to support the just course of the peoples as done in the case of Kosovo and Bangladesh. In the meantime, pressure groups such as the media, civil society groups, NGO’s, human rights organization and even research institutions can play an important role in highlighting the facts on the ground with the view to drawing the attention of world and involvement in the possible resolution of the case. 184 See: Cassese, Antonio, 1995, p.54

31

BIBLIOGRAPHY. Literature: Ahmed I. Hassan, Northern Kenya and the Constitutional Review Process – Lessons from History, 2002 Ahmed, Ismail. "Understanding Conflict in Somalia and Somaliland." In

Comprehending and Mastering African Conflicts, edited by Adebayo Adedeji. London, 1999.

Anaya, S. J. (1998). Indigenous Peoples and International Law Issues. In Proceedings of the ASIL Annual Meeting (Vol. 92, pp. 96-99). Cambridge University Press

Bowet, D. W. ‘Self-Determination and Political Rights in Developing Countries’ 60, American Society of International Law Proceedings 129, 1966.

Branch, Daniel. "Violence, decolonisation and the Cold War in Kenya's north-eastern province, 1963–1978." Journal of Eastern African Studies 8.4 (2014): 642-657.

Brownlie, Ian. Principles of Public International Law. 6th ed. Oxford: Oxford University Press, 2003.

Cottrel-Ghai, Jill, et al. Taking diversity seriously: minorities and political participation in Kenya. London: Minority Rights Group International, 2013.

Cassese, Antonio. Self-Determination of Peoples : A Legal Reappraisal, Hersch Lauterpacht Memorial Lecture Series. Cambridge ; New York: Cambridge University Press, 1995.

Crawford, James, The Creation of States in International Law. 2nd ed. Oxford: Oxford University Press, 2006 Emerson, Rupert. "Self-Determination Revisited in the Era of Decolonization."

Harvard: The Center for International Affairs, Harvard University, 1964. Evans, Malcolm D., and Rachel Murray. The African Charter on Human and People's

Rights : The System in Practice, 1986-2000. Cambridge: Cambridge University Press, 2002.

Hanna RM. Right to self-determination in in re secession of Quebec. Md. J. Int'l L. & Trade. 1999; 23:213. Hannah Whittaker. Legacies of Empire: State Violence and Collective Punishment in

Kenya's North Eastern Province, c. 1963-–Present, The Journal of Imperial and Commonwealth History, 2015, 641-657.

Hannum, Hurst. Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights. Rev. ed. Philadelphia: University of Pennsylvania Press, 1996.

Healy, Sally. "The Changing Idiom of Self-Determination in the Horn of Africa." In Nationalism & Self-Determination in the Horn of Africa, edited by I. M. Lewis, 93-109. London: Ithaca Press, 1983.

Hugh, Seton-Watson, Nations and States: An Enquiry into the Origins of Nations and the Politics of Nationalism, London, Methuen, 1977.

Jayawickrama, Nihal. The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence. Cambridge: Cambridge University Press, 2002.

Lewis, I. M. A Modern History of the Somali: nation and state in the Horn of Africa. Ohio University Press, 2003

———. Nationalism & Self Determination in the Horn of Africa: Ithaca, 1983.

32

———. "Recent Developments in the Somali Dispute." African Affairs 66, no. 263 (1967): 104-12.

———. "The Somali Republic since Independence." The World Today 19, no. 4 (1963): 167-74.

Mayall, James. "Self-Determination and the Oau." In Nationalism & Self-Determination in the Horn of Africa, edited by I. M. Lewis. London: Ithaca Press, 1983.

Mohamed Haji Ibrahim Egal. “Somalia: Nomadic Individualism and the Rule of Law.” African Affairs, vol. 67, no. 268, 1968, pp. 219–226.

Moore, Margaret. National Self-Determination and Secession. Oxford; New York: Oxford University Press, 1998.

Musgrave, Thomas D. Self-Determination and National Minorities, Oxford Monographs in International Law. Oxford: Clarendon Press, 1997.

Pomerance, Michla. Self-Determination in Law and Practice: The New Doctrine in the United Nations. The Hague; Boston: M. Nijhoff, 1982.

Potier, Tim. Conflict in Nagorno-Karabakh, Abkhazia, and South Ossetia: A Legal Appraisal. The Hague; Boston: Kluwer Law International, 2000.

Ratner, Steven R. "Drawing a Better Line: Uti Possidetis and the Borders of New States." The American Journal of International Law 90, no. 4 (1996): 590-624.

Reisman, Michael. "Somali Self-Determination in the Horn." In Nationalism & Self-Determination in the Horn of Africa, edited by I. M. Lewis. London: Ithaca Press, 1983.

Roth, Brad R. Governmental Illegitimacy in International Law. (Oxford: Oxford University Press, 1999.

Sanger, Clyde. Malcolm MacDonald: Bringing an End to Empire, MQUP, 1995. Salwe, Abdisalam. Cold War Fallout: Boundary Politics and Conflict in the Horn of

Africa. London: HAAN Associates, 2000. Sharma, Surya Prakash. Territorial Acquisition, Disputes, and International Law,

Developments in International Law; V. 26. The Hague: M. Nijhoff Publishers, 1997.

Shaw, Malcolm N. International Law. 6th ed. Cambridge: Cambridge University Press, 2008.

———. Title to Territory in Africa: International Legal Issues. Oxford Oxfordshire New York: Clarendon Press; Oxford University Press, 1986. Simala, I. K., & Arrous, M. B. (2009). Whose self-determination? Conflicting

nationalisms and the collapse of Somalia. African Studies in Geography from Below, 132-160

Smith, Rhona, Test book on International Human Rights, 3rd ed, (Oxford University Press, Oxford, 2007).

Stiftung, F. E. "Regional Disparities and Marginalization in Kenya." Elite PrePress Nairobi, Kenya, 2012.

Summers, James. Peoples and International Law: How Nationalism and Self-Determination Shape a Contemporary Law of Nations, Erik Castren Institute Monographs on International Law and Human Rights; V. 8. Leiden: Martinus Nijhoff Publishers, 2007.

Touval, Saadia. The Boundary Politics of Independent Africa. Cambridge, Mass., Harvard University Press, 1972.

Valentine DA. The Logic of Secession. YALE LJ. 1980; 89:802

33

Legal documents Kenya Constitution, 2010 Charter of the United Nations, 26 June 1945, available at http://www.un.org/en/sections/un-charter/un-charter-full-text/index.html. The Universal Declaration on Human Rights, 10 December 1948, available at http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf. International Covenant on Economic, Civil and Social Rights, 16 December 1966, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx. International Covenant on Civil and Political Rights, 19 December 1966, available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. Declaration on Granting of Independence to Colonial Countries and Peoples, 14 December 1960, available at http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/1514(XV). Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, 24 October 1970, available at http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/2625(XXV). Cases: Dispute, Frontier. "Burkina Faso/Republic of Mali." ICJ Reports (1986). Sahara, Western. "Advisory Opinion." ICJ Reports 12, no. 10 (1975). Reports: African Centre for the Constructive Resolution of Disputes: (ACCORD), “The Kenyan State Fear The Somali Identity”, 2015, P. 4/ https://www.accord.org.za Human Rights Watch, World Report 2012: Kenya. Human Rights Watch, World Report, 2013, 2014, 2017: Kenya. Kenya National Human Rights Report (KNCHR), “Preliminary Report on Human Rights Abuses in the Ongoing Crackdown against Terrorism”, 2015 Dailys’: Ali, Abdi. “Anxiety as Army eyes training land in Isiolo, Meru.” Standard Kenya, September 17th, 2019. Ariel, Zirulnick. “Ethnic Somalis are dying in Kenya, and some say the government is to blame.” The Washington Post, January 8, 2016. Jael, Mboga. “President Uhuru to open new Air Base in Garissa.” The Standard Kenya, December 13th, 2019. Luke, Awich. “More leaders reject 'sham' census results.” The Star Kenya, November 7, 2019. Waweru, Wairimu. “Leaders want Isiolo land adjudication notice revoked.” Daily Nation Kenya, December 15, 2019. Yash, Ghai. “Justice and Dignity for the Marginalized Communities.” The Star Kenya, July 12, 2014.