Constitutionalizing secession as a mechanism for conflict avoidance
Date
2016
Authors
Songok, Winnie Chemutai
Journal Title
Journal ISSN
Volume Title
Publisher
Strathmore University
Abstract
The right to secede is most often based on the right to self-determination as espoused in the United Nations Charter of 1945. The realization of this right can be either external or internal. External self-determination is often regarded as the last resort, where a people move to declare their own state. The internal aspect on the other hand regards practice of autonomy by a people within the boundaries of another state. The practice of self-determination by a people has been perceived as a major threat to the principle of territorial integrity of a state. It is this perception that has resulted in drawn out armed conflicts over seceding territories. It is based on this problem, the threat of violence in secessions to international peace and security, that there is need to generate a pacific solution. The best way this problem can be addressed is for governments to recognize that self-determination of peoples is an important right and to cater for it adequately by providing for it in the domestic constitution, so that self-determination becomes a constitutional right. Through the constitution, formal procedures of consultation can be outlined, the specific criteria that need to be met by a group claiming self-determination and a cogent negotiation process. Having studied countries that have constitutionalized secession, it is not always true that because of its legal recognition, secession has ceased to be a violent process. A peaceful secession only happens when the government recognizes the will of the people and accepts political divorce. It is not always that constitutional rights are adhered to. A peaceful secession fundamentally requires political will.
Description
A Dissertation submitted in partial fulfillment of the requirements for the award of the degree of Bachelor of Laws (LL.B) at Strathmore University