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.
[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
[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.
[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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