KENYA’S COAST CRISIS, IS THERE AN OBLIGATION TO

NEGOTIATE SECCESSION IN KENYAN CONSTITUTION (2010) &

IN INTERNATIONAL LAW OR IS IT A CRIME?
By MJM, Mombasa Kenya
At the onset the Kenya government’s hard stance against proponents of self
determination from the Coast Province led to protracted violent confrontations
in the last ten or so years against members of groups it outlawed and their
quasi establishments. Equally targeted, any other Coastal person, group or
organizations championing this cause have been equally harassed and
intimidated with charges of incitement. These violent skirmishes by the law
enforcement agencies widely reported by the media resulted into serious brutal
human rights abuses, destruction of properties, arrest of persons in
gatherings, injuries even death mainly from among Coastal indigenous
communities or individuals trying to exercise their constitutional right in
agitating for secession. This untold coaster ians suffering appears was a
calculated government strategy designed to instill extreme fear to knee jerk
them upfront from exercising their constitutional right and stop or deny them
the opportunity to pursue self determination.

It is now fair to examine this issue, its constitutional and judicial

narratives and perspectives more critically with sobriety whether or not:-

(1) Is agitation for and secession itself a crime under the Kenyan
constitution or in international law?

(2) Is it the methods used that are criminal and those who use them or is
anybody who advocates secession committing a crime in Kenya?

Generating answers to these questions is very critical and key to debunk

the government’s narrative and sustained propaganda projecting upfront the
impression that talking or agitating for self determination or secession is a
grave crime, illegal and unconstitutional if not treasonable to the extreme.
Given the government’s intransigency and subsequent outlawing of preceding

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groups in this respect the decision to form a resilient Coast Peoples Democratic
Movement in August 2012 by no means was phenomenal and not easy in view
of contemporary experiences, imminent and enormity of inherent risks,
dangers, threats and consequences by sprawling state security agencies. To
circumvent upfront the threat and prospect of the legitimate right to self
determination of the Coast people from obliteration with the foreseeable
crushing of MRC by government in 2013, to resuscitate the struggle’s spirit
CPDM filled the void as a voice of reason to provide a home grown strategy to
validate the feasibility of self determination and offer the coastal communities
hope of continuation of the struggle- aluto continua.

Civic education to optimize our peaceful and lawful methods was CPDM’s
cherished first and critical priority, in this respect. In August 2012 we issued a
report and manifesto sent to the British, Omani Sultan and Kenya
governments with responses received from the British government (are still
engaged with them) the Kenyan President, Senate and Chief Justice i.e. from all
three arms of government. We are still engaged with the British these were also
copied to various relevant offices in the government, NGO’s including the UN,
AU, East African Community and Commonwealth secretariats, IGAD etc. They
were also sent to foreign embassies in Nairobi, religious organizations and in
the public domain through email.

The report outlined as far practicable the colonial history of the Coast
from the first Arabs, to the Portuguese, to the Omani Arabs rule and the
transition into a British protectorate, the reasons behind these changes. It also
explained how and why the Coast a sultanate was eventually integrated into
British colony Kenya as one country at independence without the consent or by
bypassing the Coastal communities. The report rationalized the colonial
Sultan/British agreements, and the recommendations contained in
Commissioner Robertson report of 1961, the Lancaster conference and
constitution, the inherited British obligations of the coast by the Kenya
government, the Marlborough agreement of 1963 and the breaches of these by

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the Kenya government after Kenya’s independence. We tried in this report to
analyze their good intentions and their legal implications, impact and effect of
these pre independence colonial agreements as a cure of Coastal concerns after
being denied their democratic right to consent and participation in these
agreements by colonial powers. It focuses on the post independence direct
impact and consequences of the Kenya government’s breach of these
agreements and undertakings that led to marginalization, repressive actions
and policies, denial of fundamental rights of coasterian minorities, domination,
exploitation and a quasi silent but effective progressive subjugation policy of
the coast communities after Kenya’s independence. The collective
crystallization and impact of all these factors inevitably drive this self
determination initiative of the coast.

The Kenya government after independence mutilated the first Lancaster

constitution that guaranteed more semi autonomous status with more
executive powers to the Coast Province, abolished Coast Land and Education
boards and regionalism itself by unconstitutional means without involving
parliament. Regional governments were starved off with cash by the federal
government that brought the eight regional governments to their knees and
eventually obliterated. Despite these obvious unconstitutional mechanisms,
breach of agreements, premeditated open marginalization and blatant abuse of
the minority rights of the Coast communities neither the colonial power
Britain, Sultan nor the United Nations held the Kenya government to account.
No sooner after independence, in 1964 Kenyatta wrote to the Secretary General
of the United Nations suggesting he would review or abrogate pre-independence
colonial agreements.

All this gave the Kenya government a cater blanche opportunity of what
the Coast had feared most marginalization on a whether you like it or not basis
with absolute impunity for over fifty years after independence using state
machinery. With economic development and education skewed the Coast
communities were excluded in any meaningful way in the post independence

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powerful Kenyan state machinery, were sparsely and disproportionately
represented in employment and decision making in high offices in government,
her institutions, universities, commissions and parastatals at national,
provincial, and district levels including in their own Coast region. The Kenya
National Cohesion & Integrity Commission’s audit reports and others as late as
2015/6, ISPOS Survey report of 4.10.2013 and Paul Goldsmith’s report of
Nov.2011 in this respect bear witness to this reality. The Coast people were
rendered toothless, vulnerable and literally put in a socio economic,
governance and political orphanage. We then built our justification to pursue a
legal course under international law to self determination of the coast against
and based on the convergence of colonial powers Britain/Sultan and Kenya
government’s culpabilities, to forestall and debunk upfront the notion from
Coastal indoctrinated mind sets that violence was or is the only option to
pursue self determination in this respect. We are grateful to God that our
methods were found feasible and viable despite a voting boycott by MRC in
2013 general election, volatility was manageably low. Charity begins at home,
in addressing these weighty issues it is necessary perhaps to navigate our own
court battle experiences as first line victims of these vicious government
manipulations and actions as the best example and scenario in this
dispensation. It is for these same considerations that in August 2012 with
friends I formed Coast Peoples Democratic Movement (acronym CPDM)
myself being the Executive Chairman. This was designed to offer the coast
people and the country an alternative bipartisan consultative, participatory and
negotiating platform to use peaceful, lawful and civilized methods under
domestic and international law to achieve a political solution anchored in
democracy, rule of law and constitutionalism. Through the print and electronic
media in May/June 2014 the government insinuated/accused the CPDM
Secretary General and Chairman of being the new chairman of a mutating and
rebranding MRC in Tana River County an accusation swiftly denied by MRC
chairman through the same media. On 11.06.2014 the Chairman obtained
Anticipatory Bail Pending Arrest from the High Court Malindi after attaching
our exchange of letters with the President, Senate and Chief Justice to the

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application that prevented arrest of the chairman upfront when he finally
reported on 19.06.2014 to the DCIO (Police)Garsen. On 31.07.2014 the
chairman and secretary general were charged at Garsen principal magistrate’s
court with two counts of incitement and issuing a false report and on
16.03.2015 a third count was added managing an unregistered Society at
Garsen. Surprisingly the MRC accusations being the primary accusation in the
media and reason the chairman was sought by the Police was not on the
charge sheet. The OCPD Garsen on 23.07.2015 testified in court as a
prosecution witness that the Police had no charges against the chairman for
any MRC related accusations upon cross examination by our counsel. Not
much can be said for now beyond this point, this case in its fourth year is still
going at Garsen, the Principle Magistrate gave last adjournment to prosecution
on 12.04.2017 the next hearing 22.06.2017 due to prosecution witnesses
unavailability.
In starting to answer questions 1 and 2 in paragraph one above, Coast Peoples
Democratic Movement, the chairman & others as petitioners on 28.11.2014
filed High Court (MSA) application no.73/2014 inta-alia for mandamus orders
against the Registrar of Societies and AG as respondents to register our
organization as a society after having failed to do so within the statutory time of
120 days upon receipt of our application for registration dated 3.02.2014 sent
by registered mail. The respondents in their replying affidavit dated 27.02.2015
denied having received our application for registration and argued by quoting
verbatim from our manifesto “…….The main objective of CPDM is to employ
peaceful and legal means to pursue separation or secession of coastal region to
become an independent state.” Based on this premise the respondents argued
that, intended secession by CPDM would be a threat to national security, will
interfere with public order and peace in the country which will infringe on the
fundamental rights of other Kenyans and sought to limit our rights as
petitioners in this respect and prayed for the outright dismissal of our petition.
The respondents fatally stated in their replying affidavit they could not approve
registration because the name Coast Democratic Movement in statutory Form
A and B and our constitution which were attached to our application did not

5
match that in our affidavit MJM-1. The respondents expressed willingness to
consider registration if the name and objectives of CPDM were changed not to
connote a political party and secession respectively. These distinctions could
not be made if the registrar did not receive our application for registration as
observed by the appellate judges later.
In his judgment Justice M.J.Anyara Amukule made these observations
repeating and agreeing with respondents in their replying affidavit above:-
a)That CPDM’s secessionist agenda is political falls under the Political Parties
Act, but conceded political associations could be registered under Sect.15 of
the Societies Act. The judge strongly anchored his judgment on Article 3(2) of
the constitution which states “Any attempt to form a government otherwise than
in compliance with this constitution is unlawful.” And Article 5 which defines
the territory of Kenya which states “ Kenya consist of the territory and territorial
waters comprising Kenya on the effective date, and any additional territory and
territorial waters as defined by an act of parliament” In applying the two articles
the judge made a finding in the same judgment that the boundaries of the
country may not be reduced save by an amendment of the constitution with a
mandatory of a referendum.
b) The judge made a finding that Kenya was a signatory of International
instruments addressing the right to self determination of peoples i.e. Charter of
the United Nations, International covenant on civil and political rights, the
international covenant on Economic, social and cultural rights, the African
chatter of Human and Peoples rights and the 1993 Vienna declaration were
sighted by the judge. The judge rightly found these rights should be pursued
and conducted within the law. Based on the injustices suffered by the coastal
communities nearly all these conventions are applicable in this respect.
To a very large extent the judge in his judgment agreed with nearly all the
respondents’ arguments in their replying affidavit but in his final judgment
despite CPDM’s efforts for registration to pursue these rights lawfully the judge
made this ruling on 18.03.2015:
HIGH COURT ORDERS.

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1.I adopt and endorse the above reasoning MRC case (art.110&111 of that
judgment)stating inter alia “Applicants not entitled to constitutional protection,
are amorphous, unregistered, lack locus standi and legal competency to bring the
motion in this case.” In addition, there was firstly no challenge (during
proceedings) to the arguments by the Registrar of societies, that he had not
received the Petitioners application for registration. Secondlythe petitioners by
virtue of their secessionist agenda, lack the competency to seek the protection
of the constitution of Kenya 2010 as their activities in the present forum are
illegal.
2. For those reasons, I find and hold that the Petition dated and filed on 28th
November 2014 is incompetent and is hereby dismissed with a direction that
each party bears its own cost. Hon. M.J.Anyara Amukule J.
It is very clear that we lost the High Court case not because we did not comply
or qualify as an organization to be registered as a society, but because the
judge was persuaded by the respondents arguments of our criminalities and
perceptions that our intentions, objectives and actions threatened public
order/incitement were therefore illegal and unconstitutional upfront of
registration. The respondents defence turned this civil case into a pure criminal
case and the learned judge wrongly applied in what he thought was his
collective responsibility by all law courts to uphold the rule of law by
dismissing our civil application based on unproven perceptions of our
illegalities and criminalities upfront of registration.
CPDM’s APPEAL
On 23.10.2015 through our appeal counsel Mr. Allan Nyange Sharia we filed
an appeal no.73/2015 based on nine grounds: the superior court impugned
judgment was not reasonable, fair, was biased and applied double standards in
favour of the respondents, applied the new law selectively and incorrectly,
failed to uphold the rule of law and constitutionalism, misdirected itself into
error by rendering a meritless verdict anchored outside the law, there was no
basis for making the judgment therein and the High Court misdirected itself
into error by failing to acknowledge the evidence on record. The appeal hearing
opened in Mombasa on 9.03.2016 the respondents were unrepresented, a

7
request to file written submissions by our counsel was accepted by the three
appellate judges. An order was issued for all parties to make written
submissions and was served upon respondents on 30.3.2016. Our written
submissions were filed on 4.5.2016 and served upon respondents on
12.05.2016, the proceedings were temporarily put on hold on the hearing date
25.5.2016 to allow respondents to file their submissions at the Appeal Court
registry first after which the case resumed the same morning.
Submissions by Our Counsel.
There was a beehive of brilliant arguments from our appeal counsel Mr. Allan
N. Sharia that in their replying affidavit the respondents did not deny P.O.Box
40112 Nairobi did not belong to Attorney General’s office neither did they
provide their correct address. (Counsel for respondents admitted in answering a
question from the bench that the address was theirs) That the registered letter
and two reminders sent by ordinary mail to the same address were not
returned to the applicants/petitioners. Our counsel submitted the Registrar of
Societies and Registrar of marriages are departments in the AG chambers any
letters and applications addressed to the AG should reach them. He further
submitted the law stipulates that any unreturned registered mail after 96
hours of posting is deemed to have been received by the recipient and at this
juncture it was about two years. He argued Appellants were unlawfully denied
registration and were entitled to fair administrative action pursuant to Article
47 of the constitution. That the judge’s own finding Section 15 of the Societies
Act suggests and envisages certain political associations but he did not
distinguish nature, type or kind of political associations falling under Societies
Act. That the judge took over the role and functions of the registrar when he
determined the appellant could not be registered under the Societies Act. That
in dismissing the appellant’s activities as illegal by virtue of their clamour for
secession of the coast, the judge referred to Article 3(2) (see above) and that the
designated boundaries can only be reduced by an amendment of the
constitution, the judge agreed with this possibility in his judgment. Counsel
submitted there is no evidence of appellant’s illegal/criminal activities they
have only sought to regularize their activities under the law their desire to

8
peaceful and lawful means begin with the registration. Denied registration
appellants sought judicial intervention instead of using unorthodox means to
achieve their objectives vindicates appellants are keen on lawful means to
achieve their objectives. Counsel further submitted the law as discussed by the
High Court judge allows even where the constitution like ours (Kenya) is silent
on secession a party can lawfully seek separation and no law or constitutional
provision bars the appellants from seeking separation provided it is done
within peaceful and lawful means which is the core objective of the appellants.
Counsel submitted that Pwani Si Kenya(Coast is not Kenya) slogan is wrongly
construed to mean forceful eviction of non indigenous peoples at the coast.
That this slogan is an expression of unbearable marginalization felt by the
coast people, just like the Turkanas say they are going to Kenya when
travelling to Nairobi. It was also submitted that secession is an act of self
determination which power, in a democracy resides in the people, it is for them
to determine whether or not they wish to secede or remain. Courts are not the
means of expressing or effecting peoples democratic will. Under Articles 256
and 257 of the constitution the people of Kenya can lawfully initiate
constitutional amendments through parliamentary or popular initiative
respectively with mandatory of a referendum, the courts have no such power.
The law allows for negotiated and not unilateral or de-facto secession even
where the constitution is silent reference the own judge’s case Reference Re
Secession of Quebec (1998) SCR 15. The judge misapplied the law when he
found that the appellants lack the competency to seek protection of the
constitution of Kenya as their activities are illegal when they are within the
law.( end of submissions).
The respondents did not bring anything new or arguments into the appeal,
repeated and based their submissions on their very original Replying Affidavit
and judgment in the originating petition no 73 of 2014. Based on our counsels
submissions we won the appeal against the government by the appellate judges
judgment of 1.07.2016 delivered in Malindi whose summary is:
APPEAL JUDGMENT.

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1.Section 50(1) of the Act (Societies Act cap.108) provides that any
documents……….may validly be served on a society or individual by registered
post addressed to their postal address ….section 50(2) adds such documents
shall be deemed to have reached….it is registered addressed to within 96
hrs……in the absence of non delivery the 1st respondent is deemed to have
received the application……….If these circumstances are taken into
consideration and the 1st respondents (registrar) equivocal statement regarding
receipt of the application, we think there is considerable merit in the appellants
contention that the respondents received the application for registration. We
would add that……applicants to fully exercise their freedom of association this
court will not allow the exercise and enjoyment of that freedom to be defeated
on flimsy grounds such as those advanced by the 1st respondents (registrar)
regarding artificial distinction between the office of the Attorney General and
registrar of societies………As such it cannot be easily allowed to avoid living up
to its constitutional obligations.
2.Having satisfied ourselves that the 1st respondent received the application for
registration of the 2cd appellant and was in any event been aware of that
application from the date (Nov.2014) the petition in the High Court was served
upon him, the 1st respondent failed to consider and make a decision …on the
application……further failed to uphold the appellants right to fair
administrative action guaranteed by section 47 of the constitution.
APPEAL COURT ORDERS.
Ultimately, we find that this appeal is meritorious. We accordingly allow it, set
aside the order of the High Court dated 18th March 2015 dismissing Petition
no. 73 of 2014.We substitute therefore an order directing the 1st respondent to
hear and determine the application for registration of the 2nd Appellant in
accordance with the law. The appellants will have costs of the appeal. It is so
ordered.”Dated and delivered at Malindi this 1st day of July 2016.
Hon. Justice ASIKE-MAKHANDIA,W. OUKO, K. M’INOTI JA.
RE-APPLICATION TO REGISTRAR.

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Pursuant to this judgment we re-applied for registration on 25th July2016 by
registered mail and gave sustainable reasons justifying our registration as a
society not as a political party viz.
a) The objective of a political party is to win power in a general election to
form a national government. This is not CPDM’s objective to neither form
a national or an alternative government.
b) Our secessionist agenda is uniquely relevant to the coast region and it is
not feasible for CPDM to open eighteen extra offices in other counties in
addition to 6 coastal to make 24 the minimum threshold for registration
under the political parties act.
c) Article 2 of the Societies Act cap.108 laws of Kenya Interpretation of
Society states inter-alia “ includes any club, company, partnership or
other association of ten or more persons, whatever their nature or object,
established in Kenya……etc”
The respondents and high court ruling allegations CPDM sought to establish a
national government unconstitutionally contrary to articles 3(2) & 5 of the
constitution were totally mischievous and misapplied in the circumstances. The
statutory time limilt120 days has run out without response, will indulge High
Court for mundumas orders to be registered and possible contempt of court
proceedings against registrar.
Specifically article 256 (5) (a) (constitution) mandates the president to request
IEBC (Independent Electoral Boundaries Commission) to conduct a national
referendum within 90 days to approve the bill if the amendment relates to a
matter specified in article 255 (1) (b) & (c) namely to the territory and
sovereignty of Kenya respectively. Admittedly the Kenya constitution is silent
on secession, but can be initiated through an amendment by following the
rules of procedure in art. 255,256 and 257 of the constitution of Kenya
(2010).If objectives, activities and intentions of secession were criminal or
illegal and unconstitutional as High Court found, the appellate judges bound
by collective responsibility to uphold the rule of law by all law courts, would
not have set aside the high court judgment and its orders. This position is
supported by a government appeal no.275 of 2012 against MRC which it lost,

11
judgment by Justice Musinga, W.Ouko, Kiage, M’Inoti& MohamedJJA
(CORAM)states inta-alia “…That in essence implies that we people of Kenya, in
adopting, enacting and giving the new constitution to ourselves and to our future
generations( as the preamble states),we recognized a constitutional right to
secession…..In view of the foregoing, the appellants contention that the
respondents agenda secession is unconstitutional has no basis in law. The
respondents have a right to demand secession but that can be done within the
confines of the constitution as stipulated under Articles 255,256 and 257 of the
constitution.”
“ What the government cannot do is to take away a constitutional right of a
people under the guise of preservation of national security. The rights and
freedoms in the bill of rights belong to each individual and are not granted by the
state or any government. See Article 19(3) (a) of the constitution…….people of
Kenya are better off living in unity as one sovereign state we must realize that
the unity cannot be preserved by force, either by government or communities. It is
not unconstitutional for a community to agitate for secession in a constitutional
and peaceful manner. What must be questioned is, were the state law office and
government ignorant of the law as stated above or was this interpretation of the
constitution out of reach of their knowledge in this respect?
In 1989 Serbia revoked it’s inheritance of Kosovo’s autonomy which remained
part of Serbian province after the break of Yugoslavia. Eventually this led to
civil war that involved EU and the UN, finally the International Court of Justice
advisory ruled recognizing Kosovo’s right to unilateral secession, eventually
was effected through a UN mandate. However critics challenged this ICJ
decision for potentially promoting conflict by secessionists around the world,
but in the alternative agreed repression, exclusion and fundamental human
rights abuses etc of Kosovas by Serbia would have been a better reason and
basis. This abrogation by Serbia of Kosovo’s autonomy and the alternative to
ICJ decision advanced by its critics resonates with breached pre- independence
colonial agreements and mutilation of the Lancaster constitution that revoked
the intended semi autonomy of the Coast province of minorities within an
independent Kenya imposed by pre independence legal instruments.

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In the Canadian Supreme Court advisory sought by Quibois governor Reference
Secession of Quebec(1998) 2 SCR 217 the eight judges arrived at the same
conclusion as in the Kenyan appeal 275 of 2012 judgment. Despite both the
Canadian constitution and international law being silent on secession, the
judges ruled a province or community has a democratic right to desire
secession and the Kenyan situation is no exception. The rest of the
confederates and government have no right to be indifferent, should recognize
the seceding province majority’s expression through a referendum their desire
to self determination. We recognize that the British and Kenya governments
paid collectively about Bpds 875,000 to compensate the Sultan, but in no way
were the democratic and human rights of the coastal indigenous people
abrogated, auctioned or sold to either governments in this arrangement they
remained inviolable. There are shared values in a democratic confederation
that must be respected by federal citizens and parent government without
exception i.e. federalism, democracy, rule of law, constitutionalism, social
justice and minority rights. State parties territorial integrity are inviolable and
all peoples right to self determination are both solid principles of international
law anchored in the UN Charter itself, art.1 para 2.However the secession will
only be lawful in domestic or international law if it is negotiated with all stake
holders participation i.e. the public, international communities, parent
government and private sector, seceding province but illegal if unilateral i.e.if
pursued by violence by the seceding province. This position is supported by
David P Haljan Lawyer of the Bar of Ontario and Alberta Phd LL researcher in
his thesis “Negotiating Quebec Secession.”It is also supported by ESIL-
European Society of International Law conference paper n.13/2015 Florence
14-15 May 2015 by Bosko Stankovski a law doctorate researcher entitled “ Is
there an Obligation to Negotiate Secession in International Law? Both
advisories/theses came to the same conclusion of the Canadian Supreme
Court and therefore the Kenyan appellate Judges.
This Quibois advisory triggered and enabled former Soviet Union republics and
former Yugoslavia provinces to break away and became lawfully independent
under international law. It is irrefutable that a democratic right has an equal

13
force in law, because finally the law will be obligated to enforce and implement
a democratic will once the seceding province’s majority through a referendum
decide clearly to secede. Violence by federal government or seceding province is
a sign of intolerance in democracy and international law, will severely
undermine a party’s credibility, trust and demonstrates unwillingness to
negotiate before the international community. Russia having realized the
international recognition of this ruling, its force and consequences decided not
to use force against secession of remaining former member republics from the
USSR instead they let them go. Freedom of expression and consent by Coastal
communities by colonial powers to a united Kenya were precluded by well
intentioned colonial pre-independence agreements (and British colonial
undertakings inherited by Kenya government that made it possible for coast to
be integrated with British Kenya colony as one country at independence. These
agreements) were breached by Kenya government, these were twin wrongs. The
Coast’s self determination struggle primarily coalesces around these twin
colonial wrongs and in addition on people’s right to self determination in law,
marginalization is secondary. Is it democratic and fair to subject the Coastal
province desire to self determination to be consented through a national
referendum and approved by Kenyan parliament and its 47 county assemblies
when the Kenya government is the architect of these post independence
agreements culpabilities for fifty years plus of the region and is primarily to
blame? We think not, but we shall be patient, these are serious issues of
conflict of interests, interpretation and determination in law will be decided
when the struggle touches base in the legal process. By its diverse nature,
reasons and circumstances of the coastal self determination struggle, it is
evident that there are adequate Kenyan domestic and international legal frame
works and mechanisms to address and find a political solution and the Kenya
government needed, does not need to panic should remain optimistic and ready
to reap from the consequences of its actions past and present in court. The
Kenya government should not be discriminative and should in principle allow
CPDM on behalf of coastal communities the same space it allowed the Mau
Mau veterans who successfully sued the British government in Britain for

14
reparations even though ours is self determination. Common sense dictates
that if it were not for the boundary demarcation by colonial powers of their
colonies and spheres of influence that became future independent state
boundaries, African countries would be at war against each other today.
Ugandan claim of Migingo Island from Kenya fifty years after both countries
became independent, if it were not responsibly handled by Kenya, is best case
scenario of conflict in this respect. The boundaries of a secessionist Coast
province will be determined by international legal frame work under UN
resolution 1540 that recognizes to be the last colonial boundaries before
independence. Let’s be cognizant that Kenya challenged the jurisdiction of
International Court of Justice which has ruled in round one that it has
jurisdiction to hear water territorial boundaries dispute against Kenya by the
Somali government. This not withstanding article 2(5) & 2(6) recognizes
international law and any treaty or convention ratified by Kenya as part of law
under the Kenyan constitution.
The Kenya state law office is conversant with these legitimate issues and
applicable constitutionalism and law, but appears has failed to substantively
advise without bias or selectively in principle the state its obligations and her
organs (a) under Article 19(2)&(3)Bill of Rights mandates them to protect
human rights and fundamental freedoms to preserve the dignity of individuals
and communities and promote social justice (b) Art. 19 (3) these rights and
freedoms belong to each individual and are not granted by the state (c) Article
21 (1) the state and all its organs must observe, respect, protect, promote and
fulfill these and other rights and freedoms in the bill of rights. There appears to
be a deliberate attitudinal strategy by the state and its organs to circumvent
and disrespect constitutionalism, rule of law, people’s democratic desire and
international law and processes on self determination in this respect. If the
attempt by government succeeded to link CPDM and its chairman to MRC it’s
easier option it would have wrongly achieved the same objective of frustrating
and proscribing CPDM as a still born organized criminal gang under section 22
of Prevention of Organized Crime Act (Act.no.6 of 2010) or (POCA) and would
obliterate or sweep the struggle under the carpet. By God’s grace the

15
anticipatory bail pending arrest pre-emptied this possibility and lethal strategy
upfront caught off guard the government instantly abandoned to date its press
assault and propaganda against CPDM and its chairman for fear of publicizing
the viable alternative lawful methods and revelation of the truth about CPDM
to deny us grass root support. Targeting CPDM and officials with poca oriented
accusations is in disregard to (constitution) art.33 freedom of expression,
art.36 freedom of assembly, art. 37 freedom of Association and art. 38 (c) the
right to campaign for a political cause as determined by the High and Appeal
Courts. Kenya government in the circumstances should first obliterate
international law, conventions, articles 255,256 and 257 of the Kenya
constitution and the bill of rights that provide constitutional space and
protection in this respect before fishing for excuses to nipp in the bud CPDM as
peaceful crusaders of Coastal self determination. This not withstanding the
Kenya constitution (2010) is very benevolent, it clearly provides amendment
mechanisms with time lines for referendum which CPDM is geared to comply
with. There is no doubt that there is a legitimate obligation to negotiate self
determination under the Kenya constitution and in international law. Unless
pursued by unorthodox means against articles 255,256,257 of the Kenya
constitution and in international law, secession, secessionists and its agitation
under the constitution of Kenya are not in any way a crime or unconstitutional.
The Kenya government needs to demonstrate its political will, tolerance, moral
responsibility and resolve to implement, obey the new constitution (2010) on its
part not on pen and paper alone but more importantly in spirit, and avoid
being construed to attempting to deny or negate these same rights and
freedoms and from being seen as fighting citizens it should protect and ensure
they enjoy these constitutional rights. It is worth while to remember Jesus said
faith without action is useless so is a constitution, democracy and rule of law if
not respected. CPDM’s home grown strategy and methods should be a cause of
celebration by Kenyans and the world at large for doing the government’s job in
art.35 of the constitution to explain the genesis of this crisis to the public and
contribute maintain peace and find a lawful political solution. It ensures
Mombasa as a regional business hub remains peaceful to avoid economic

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disruption in Kenya and East and central African, Comesa, PTA regions and
other foreign interests. This is backed by our value addition civic education
initiatives through our report and manifesto to the public to avoid upfront self
determination becoming a tragedy of violence, death and destruction or a curse
as has happened else where in Africa. This is critical to build confidence and
trust before and during transition negotiations with world communities and
other interested parties when the Coast finally is set to become independent.
CPDM is not thinking only of the future of her aggrieved Coastal people but of
others at the same time in a composite holistic manner with civility and
decorum but the same is larking from government’s side and the government
needs not target us as it has. It is interesting that the government has lost all
cases in the high court and court of appeal in this respect for its blatant failure
as determined in these judgments to comply at least amongst others with
article 47(1)&(2) of the constitution Fair Administrative Action which states “
(1) “Every person has a right to administrative action that is expeditious,
efficient, lawful, reasonable and procedurally fair” (2) “If a right or fundamental
freedom of a person has been or is likely to be adversely affected by
administrative action, the person has the right to be given written reasons for
the action.”
The government led by the state law office cannot pledge ignorance of its
constitutional obligations to promote the rule of law and democracy unless it
has voluntarily abdicated this responsibility. By its actions is the government
sending the message it does not intend to respect and promote democracy,
constitutionalism, the rule of law and social justice or respect the Coast’s
minority fundamental rights and freedoms in this respect? In 2012 then Prime
Minister Raila Odinga admitted in parliament the historical injustices of the
coast were legitimate and promised a government commission of inquiry in this
respect to no avail to date! It is not fair and democratic for some stereotyped
intellectuals with half baked information out there to demean and use vulgar
language to insult the intelligence, resolve and competency of the Coastal
communities and attempt to join the government to dictate who, when, why
and how to exercise their constitutional rights. They are not surrogates neither

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sons and daughters of a lesser God and as a people their rights, desires,
opinions and choices must be respected by all as long as they are within the
ambit of the law. There is no doubt the success of the coastal self
determination through law courts will have a huge impact on contemporary
African countries, governments and leaders and how they govern and treat
their citizens. The prospect of this democratic wake up call to aggrieved African
communities will counter balance rogue governance and send a strong message
to arrogant and despotic African leaders. This will help start cure their allergy
to the rule of law, respect the rights of all people and democracy cognizant that
people have an equal right and opportunity to self determination if not
respected. They will learn the hard lesson the hard way they do not own the
people and their countries, that democracy, the rule of law, inclusivity, equity
in opportunities and distribution of national resources and respect for social
justice are a pre-requisite to guarantee their countries sustainable unity,
cohesion and peace or risk dissent or volatility. In this respect the combination
of International Criminal Court and International Court of Justice jurisdiction
will help negate skewed government oversight roles by the African legislature
and assist holding to account the African leaders and their governments. For
example Catalina is seeking self determination from Spain, Guam a tiny Island
US military base has filed for self determination from the US while Scotland is
rooting to secede from the UK for a second time without violence from the
parent governments or the intending secessionist provinces. African
governments must replicate this responsible maturity will of the European and
US governments to respect the rights of their minorities, people and the rule of
law in this respect and spare Africans in this twenty first century the shame of
redefining democracy as government of so and so for so and so and by so and
so a dead end and anarchic governance.
This struggle is a divine mission a dimension known by just a few, put on my
shoulders to lead and execute with clear guarantee by God of success with the
same promise he gave to the Jews through Moses when the conquest of the
promised land of Canaan begins Exodus 23:20- 33“ Behold, I send an angle
before you to guard you on the way and to bring you to the place that I have

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prepared. Pay careful attention to him and obey his voice, do not rebel against
him, for he will not pardon your transgression, for my name is in him. But if you
carefully obey his voice and do all that I say, then I will be an enemy to your
enemies and an adversary to your adversaries. When my angle goes before you
and brings you to the Amorites, Hittites, Perizzites and Canaanites….and I blot
them out…..but you shall utterly overthrow them and break their pillars into
pieces…….I will send my terror before you….and I will make all your enemies
turn their backs to you….which shall drive out ….Canaanites before you…for I
will give the inhabitants of the land into your hand, and you shall drive them
out…..They shall not dwell in your land, lest they make you sin against me, for if
you serve their gods, it will surely be a snare to you.” From beginning 2012 of
this mission the Coast people and the world will be surprised and gripped with
awe what God has done himself in preparing for the liberation and creation of
Coast into statehood. All the above happenings have not been without serious
challenges, the chairman receives anonymous calls and sms messages on a
daily basis, the few he has talked to on phone are persons unknown, seeking
false meeting appointments to discuss business deals/issues being first
tracked and literally under surveillance. These characters appear to be the
same self confessed death brokers on the run, who became victims themselves
of their Police accomplices, went public to press (The Standard) for sympathy
after luring souls to death for ksh.5,000.00 per victim. Nevertheless God has
fulfilled his promise brought me this far with great personal sacrifices but made
me succeed where others may have failed.Without him it would be impossible to
be alive today let alone to completion of his mission.God humbles me with his
word in this respect in fulfilling his promise Isaiah 55:11“So shall my word
that goes out of my mouth, it shall not return to me empty, but it shall accomplish
that which I purpose and shall succeed in the thing for which I sent it.” It pays to
trust God, this divine dimension is huge and a story for another day. It is
evidently clear the Kenya government’s resistance to a transformative
constitution (2010) and its renegade actions of agreements have undermined
itself upfront and the fragile union with the coast province. The Kenya
constitution inherited and constitutionalized huge tracts of Coastal native’s

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lands grabbed by Arabs under the Land Ordinance Act of 1908 including the
Mazrui Trust land Act of 1914 and the 1905 Act. This created chronic post
independence permanent native land squatters necessitating the Mwangi
Maathai parliamentary select committee of 1976 in this respect whose
recommendations and from subsequent reports the Ndungu report on illegally
acquired land and the TJRC report were not implemented. All this illegitimate
Arab land today managed by absentee landlords was used as a trade in
precondition by the Sultan to renounce his sovereignty of the Kenyan coastal
strip. The devolved county governments and the National Land Commission
have no real power in the circumstances to repossess this land and give it back
to Coastal natives. The situation is exacerbated by the National Land
Commission considered the panacea to land injustices, their loss of supremacy
court wars and is now answerable to the ministry of lands. Hope in these
circumstances of historical and grabbed land injustices solutions at the Coast
have been dealt a death blow, the same powerful and influential individuals
who used the government as a broker to grab land and marginalize the Coast
region are waiting to use the government in the same capacity to scuttle,
protect and defend their illegitimate interests at the coast. The disillusionment
of devolution by coast province is well explained by International Crisis Group
report of 13.07.2016 is available on internet. The world must be cognizant
CPDM’s intentions and methodologies are clearly in tandem with the obligation
for peaceful settlement of disputes envisaged in Art.2(3) UN chatter and the
Declaration of Principles of International Law. Anybody or institution willing to
help the coast province in kind should come forward in this respect without a
shred of fear or guilt, will not be undermining the sovereignty of Kenya parse,
but will be exercising moral responsibility in responding to a peoples plight,
with legitimate and a lawful self determination right and cause. That CPDM is
for many reasons different from MRC (Mombasa Republican Council) in terms
of sustainable strategies, zero use of witchcraft and methodologies of how to
achieve the same objective of self determination is not questionable. Sadly a
buttressed Kenyan print and electronic media has never made any contact for
the side of our story before or after their biased and discriminative press

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accusations in June 2014 against us until now despite keeping them updated
of all developments and asking them to cover our court battles. This most
unfortunate skewed press coverage explains why CPDM’s story, court battles
and successes against the Kenyan government are little known by the world’s
public today except those we have reached via email in this respect etc. We
appealed to the Media Council of Kenya against this cynical behavior by the
press in our letter dated 19.1.2017 and we yet have to receive a response.

By Morris Jarha Maro, Mombasa Kenya , is the Interim Chairman of Coast Peoples
Democratic Movement

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