JPIL Vol 4 Issue 2 2013 - Article 1

MINORITIES CHALLENGING TERRITORIALITY THROUGH LAW:
LEGALITY AS A FAUSTIAN PACT

Edwin Bikundo

Abstract
This is a theoretical and comparative study based on Australian and Kenyan court cases disputing the State’s sovereignty over land. These post-colonial challenges to the construction of territoriality seemingly traverse the law and politics divide.  The Australian case of Mabo v Queensland (No 2) is legal authority for the proposition that the Sovereign’s mere existence and the actual exercise of that sovereignty are separate and distinct ways of being.  The Kenyan case of Randu Nzai Ruwa and Two Others v Internal Security Minister and Another held that even though secession is not contemplated in the Kenyan constitution it nevertheless remains open for discussion in any democracy governed by the rule of law. However this can only be done via peaceful means such as through organized and registered political parties. Both cases indicate that the paradoxical cost of challenging sovereignty before a court is the recognition of the same sovereignty under challenge. Sovereignty can only entertain legal challenges to itself after its sovereignty is accepted. Legality is therefore structurally akin to a Faustian pact where in extreme situations a supposedly transient alliance with what is necessarily evil is explained away by the potential good which may follow as a result.


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