Litigating Self-Determination: A Regional Approach Comparing the Right to Self-Determination for Coastal Kenyans and Nubians Under the African and Arab Charter of Human Rights
Authors Nora Mbagathi
Affiliations: George Washington University Law School Graduate
Source: Journal of Comparative Law in Africa, Volume 3 Issue 2, p. 84 – 111
This paper examines the issue of a people’s self-determination under the African Charter on Human and People’s Rights and compares it to the Arab Charter of Human Rights. Specifically, it looks at the cases of the Mijikenda in Kenya and the Nubians in Egypt to determine when groups may be entitled to the remedial secession as a remedy for state violations regarding self-determination. The paper traces the development of the definition of ‘a people’ and compares these two cases with decisions the African Commission has already made in the Gunme and Katanga cases, regarding the issue of self-determination and secession. The issue of self-determination and of remedial secession is mainly driven by real politics on the international stage. This paper posits that regional courts and commissions would be best equipped to deal with self-determination. Regional judicial bodies may be able to impose remedies other than that of remedial secession and can thereby create a normative legal standard with regards to self-determination and secession, when necessary. The paper concludes that it would be in the best interest of states to give regional bodies more power and follow their rulings so that self-determination of various groups can be ensured and the break-up of existing states avoided.