To save post-colonial Africa we must address co-existence

Kenyans should stop going gaga over David Ndii’s tease of secession. The idea isn’t radical, or even new. Secession is perfectly legal under certain conditions in international law. Some constitutions — like Ethiopia’s — explicitly provide for the right to secession. The right to secession is an integral part of the norm of self-determination. Self-determination is an ironclad and incontestable principle of international law. Colonisation wouldn’t have ended but for the right to self-determination. Kenya wouldn’t have become an independent republic without the right to self-determination. Folks shouldn’t be running around with their hair on fire simply because Dr Ndii has raised such a tame — utterly harmless — concept. Let’s grab a fire extinguisher and put out the flames.

Last year, Ndii ignited a minor firestorm when he suggested that Kenya should be broken up because it had failed as a project of nationhood (“Kenya is a cruel marriage, it’s time we talk divorce,” Saturday Nation, March 26, 2016). False nationalists took up cudgels against him. This week, Ndii went to the same well again. First, he retweeted an online petition that purports to advocate secession for the large section of Kenya that rejected Jubilee. Then on a TV interview with anchor Larry Madowo, Ndii doubled down and asserted the right to “mass protests” should the Supreme Court’s decision on the presidential petition be unpalatable. Again, folks need to accept that the right to protest is a core constitutional entitlement.

This week, pundit Macharia Gaitho took on the subject, which he deemed incendiary (“Secession debate points to deep-seated divisions,” Daily Nation, August 24, 2017). People should go home because there’s nothing to see here. These are normal healthy conversations that people in a post-colonial African state should be having. Some idiots called for Ndii’s arrest for stoking the embers of separation. What a bunch of hooey. Who doesn’t know that African states are artificial — often fake — creations of the Age of the Empire? Let me tell you a little dirty secret — African post-colonial states, including beloved Kenya — are European concoctions without rhyme or reason. Most of them, and Kenya is a prime example, have failed to cohere into nations. Every legal scholar knows the African colonial state was a legal and moral nullity. This was my argument in a widely quoted scholarly article taught in universities all over the world (“Why Redraw the Map of Africa: A Moral and Legal Inquiry,” Michigan Journal of International Law,” Volume 16, 1995). In it, I indicted the African post-colonial as the uncritical illegitimate successor of the colonial state. I argued that African elites — including Kenya’s — had failed to build a lasting nation because of tribalism, corruption, and septic geopolitics. I called for the disaggregation and re-aggregation of the African state to save it from genocidal catastrophe. Somalia, Rwanda, Burundi, DRC, Sudan/South Sudan, Ivory Coast, Mali, Ethiopia/Eritrea, and Nigeria, are Exhibit A.

My point, which is Ndii’s, is that to save the African post-colonial state we must rethink its raison d’etre. Political correctness, or intellectual cowardice, isn’t an option. Those attacking Ndii are lazy intellectually, or devoid of any intellect. They may be blinded by tribal loyalties because “their” kinsman is in power. Others are Jubilee party ideologues driven by the germ of the tyranny of the intellect. They are contracted to squelch dissent. They don’t want people to think. They know democracy dies in darkness. They don’t care so long as they control the state. The problem is they may drive us off the cliff with them. That’s why every thoughtful option must be put on the table.

International law permits secession, but sets a very high bar. A people seeking to secede must demonstrate systemic deprivation of the most basic human rights and the complete lack of redress and recourse within the body politic. Genocidal annihilation and other gross abuses would entitle a community to secede. But a community isn’t allowed to secede simply because it wakes up in the morning, yawns, and feels like breaking off. I would argue that we are not there yet in Kenya. But the disenfranchisement of large swathes of the population could calcify attitudes and drive us towards a door of no return. The illegitimacy of the state in the eyes of a large population could be irreversibly toxic.

The basis of the social contract between the state and the people is that the latter are superior to the former. That’s why under constitutional theory, the people have an irrevocable right to revolution. The state has no power of its own except that which is delegated to it by the people. That’s why the people can divorce the state, although the state cannot divorce the people. Ndii and the rest of us must be allowed to think freely.