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Thursday, July 25, 2013

The Genesis of the Kenyan Nation State.

By Kate Kiama
The terms Nation, State, Country and Nation-State have been used to loosely refer to the Political, Economic, Social and Cultural actors in the International System. It would be judicious to embark on a brief definition of these terms as a starting point to this paper.
A Country[1] is commonly viewed as occurring when a group of people with their own customs and beliefs permanently occupy a territory[2]. A country can be a nation, state, province, region, city, community or commonwealth.[3] To be a Country, autonomy, independence or sovereignty is not a prerequisites. This assertion is best illustrated by the Kurds who have their own identity and traditions and form the province of Kurdistan under the administration of Iraq.
A State[4] is a country that either forms part of another or is independent. Max Weber[5] describes the State as a compulsory political organization with a centralized government that maintains a monopoly of the legitimate use of force within a certain territory.
A Nation has been defined as a culturally homogenous group of people larger than a single tribe or community who share a common language, institution, religion and historical experience.
The Nation State is therefore a  state that self-identifies as deriving its political legitimacy from serving as a sovereign entity for a nation as a sovereign territorial unit. A good example of present day Nation States may include France, Egypt and Germany.
In comparison therefore a Multinational State is a sovereign state which is viewed as comprising two or more nations; examples of which may include present day Canada and Belgium.
In the early sixteen and seventeenth centuries, Britain as with many other European allies embarked on empire building. The original expansion of the British interests overseas was essentially undertaken by private commercial companies. Where a territory was taken over by conquest, it became the property of the crown.[6] Legal authority over such territories vested in the Crown and Political authority lay in the Privy Council. It is of course not my assertion that prior to the British presence in these territories either in the form of the Imperial British East African Company[7] or through the missionaries or finally through the colonialists that these territories were neither inhabited nor sovereign. There is evidence of early human life and in fact the greater East African Region has been widely acknowledged as being the cradle of mankind.[8] The territory could be argued on the one hand to have been sovereign.

Sovereignty within the notion of a state may be analysed as meaning either the supreme legal authority within a state or the supreme political authority[9] within a state. This argument could be further supported by Thomas Hobbes[10] extreme version on the social contract theory, arguing that man is by nature incapable of regulating his life in peace and harmony with his fellow man. Hobbes’s view of a man in a society lacking a restraining all-powerful sovereign was inherently pessimistic an attitude often encapsulated in the often quoted phrase that ‘life is solitary, poor, nasty, and brutish and short. ‘Hobbes argued for there to be civil order, it was paramount for each man to surrender to his state his own sovereignty in exchange for security. Such surrender was only revocable in the event that this trust was broken and a war broke out.
According to Jean-Jacques Rousseau[11], the citizen enters into a ‘contract’ with the state surrendering individual rights in exchange for state protection. The state according to this scholar is vested with the general good will of the people and thus becomes the agent and ruler of the people in their own name. Man therefore comes together not due to their inherent violent natural state but rather for necessity and through participation in the decision making process which produces more often than not a democratic system of governance. It could therefore be persuasively argued that indeed prior to the colonialist arrival in Kenya; there were inhabitants whose evidence can be scientifically proven; and that these people were clustered in several ethnic groupings. It can further be argued that based on the sole fact that these tribes had some form of leadership and governance though informal, they were indeed sovereign based on the social contract theory and that there sovereignty lied in fact with them and that the extent of their sovereignty was absolute and inalienable.
If this is the case therefore, it would be possible to be inclined to the school of thought that seems to suggest that indeed Kenya was a Nation State even before June 15th 1895[12].
In the alternative, it could also be argued that if indeed there were inhabitants, they were considered primitive natives and incapable of a structure system of governance such as the one demonstrated by the Sultan of Zanzibar[13]. It could be that the colonialists had their own  biases that they came with  that seem to explain why they willingly  acknowledged the  monarchical form of leadership used in Zanzibar which was almost the  same form of governance used in several European States at the time. It could also be argued that since there was only one identifiable leadership in the Sultanate of Zanzibar it was easier for the British and the Germany to recognize this form of  sovereignty and as such negotiate their terms and agreements with the Oman. If this was the case, it therefore follows that the sovereignty of the upper regions of present day Kenya at the time would prove very problematic especially because of the different leadership present in each ethic group. This multiple leadership structure would prove problematic and questionable  and it could thus be  inferred that the territory was not sovereign and subsequently  the argument of nation state does not hold. It would be interesting to discover how this theory can be defended especially in the case of ethnic groups who lived so closely to each other. It would be both theoretically and practically difficult to exactly pin point to whom their allegiance laid and in many instances the extent of their territory. In such circumstances intermarrying was rampant and hence the population of each state could never rely be defined. These among many other practical and geographical disputes further dents the nation state theory.
It is trite law that the process of creating new states is both a mixture of fact and law, involving the establishment of particular factual conditions and compliance with relevant rules. The accepted criteria of statehood were laid down in the Montevideo Convention (1933[14]), which provided for several requirements to be fulfilled prior to a declaration of statehood. The criteria of the convention are stipulated in Article 1: The state as a person of international law should possess the following qualifications;
·        a permanent population,
·        a defined territory,
·        government and
·        the capacity to entire into relations with other States
Article 3[15] provides, ‘The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.’…
Article 6[16] states, ‘The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.’
There is a huge ongoing debate whether or not satisfying the Montevideo criteria alone is enough to be a State or if recognition is also necessary. The two main doctrinal views are known as the declaratory[17] and constitutive[18] theories of Statehood.
Notwithstanding that the Montevideo Convention came into force in the year 1933, the assertion that the Nation State of Kenya came into being in June 15th 1895 still faces further obstacles. Key among them is Article 3 and 6 of the convention. It could be argued that the fact that the British and German governments failed to recognize the sovereignty as they did the ten mile strip of what is now present day Zanzibar further proves problematic for the Nation State line of reasoning. This is because it seems that the colonialist were not being selective on which states to recognize as being sovereign but rather they seemed to have  had almost no choice but to recognize some territories if they satisfied  most of the common law criteria of statehood. This theory could further be questioned especially in regards to the ability of the Kenyan nation states to relate with each other. Most of the encounters with other such states were usually not fostered for economic or political interests but rather the   relations were almost always through conflict and conquest.
In conclusions, it consequently appears that the debate on whether or not Kenya was a nation state or became a nation state in 1895 depends on the spectacles and stand point of the historian, jurist and politician. As a jurisconsult after reviewing the law and applying it I have come to the    considered conclusion  that Kenya was not  a nation state  on June 15th 1895.

[1] Concise Oxford English Dictionary (9th ed.). Oxford University Press 1995.
[2] In a legal context, the term territory usually denotes a geographical area that has been acquired by a particular country but has not been recognized as a full participant in that country's affairs.

[3] Quebec is considered to be a country despite the fact that it is a province of modern day Canada. Hawaii, Puerto Rico and the Virgin Islands are also considered to be countries. Puerto Rico, and the Northern Mariana Islands, are both commonwealths of the United States of America.

[5] Maximilian Karl Emil "Max" Weber (German: 21 April 1864 – 14 June 1920) was a German sociologist, philosopher, and political economist whose ideas influenced social theory, social research, and the discipline of sociology itself. Weber is often cited, with Émile Durkheim and Karl Marx, as one of the three founding architects of sociology
[6] Calvin’s case [1572] Eng.R. 64, (1572–1616) 7 Co.Rep. 1a, 77 E.R. 377  

[7] The Imperial British East Africa Company (IBEAC) was the administrator of British East Africa, which was the forerunner of the East Africa Protectorate, later Kenya. The IBEAC was a commercial association founded to develop African trade in the areas controlled by the British colonial power. 

[8] Fossils found in East Africa suggest that primates roamed the area more than 20 million years ago. During excavations at Lake Turkana in 1984, paleoanthropologist Richard Leakey assisted by Kamoya Kimeu discovered the Turkana boy, a 1.6 million year old fossil belonging to Homo erectus

[9] AV Dicey
[10] The Leviathan 1651
[11] The Social Contract and Discourse 176
[12] Kenya became a protectorate under the British Rule.
[13] In 1698, Zanzibar became part of the overseas holdings of Oman after Saif bin Sultan, the Imam of Oman, defeated the Portuguese in Mombasa. 
[14] This treaty was signed at the International Conference of American States in Montevideo, Uruguay on December 26, 1933. It entered into force on December 26, 1934. The treaty discusses the definition and rights of statehood.
[15] Montevideo Convention on the Rights and Duties of States (1933)
[16] Ibid
[17] provides that the moment in which an entity satisfies all the conditions set out in the Montevideo convention the entity is a State. This theory is close in line with the convention itself and the pronouncements of Articles 3 and 6.
[18] Sets out that it is the recognition of an entity as a State that makes it so.

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