RIGHT OF PEOPLES TO SELF-DETERMINATION: THE NFD CASE IN KENYA - YUSSUF AHMED HASSAN - DIVA
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RIGHT OF PEOPLES TO SELF-
DETERMINATION: THE NFD
CASE IN KENYA.
Yussuf Ahmed Hassan
Constitutional law and Human Rights/May/2020
Independent written essay
Supervisor: Markus NaarttijärviAbstract:
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.
2Abbreviations
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
3TABLE 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
41. 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
1
Ahmed, 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.
6 Ibid. 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.
51.2 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.
62. 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
7However 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
8On 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 Territories 44 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,
9those 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.
10same 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.
11The 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
12Somalia. 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.
65 ICCPR, Supra note at 35. See also: ICESCR, Supra note at 36.
66
Crawford, James. 2001, p.30
67
Shaw, Malcolm.1986, p. 88.
13resolution 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.
79
Cassese, Antonio, 1995, p.140.
Peremptory norm is a general principle by which a significant number of states feel bound.
143. 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.
15property 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.
16Additionally, 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.
17colonialism 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
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