By Fuad Abdirahman
The ongoing fissure between Kenya and Somalia has dragged on since 2014 when Mogadishu took Nairobi to the International Court of Justice (ICJ) in a disputes that involves a maritime border of an exclusive Economic Zone of around 42,000 square kilometres.
Tellingly, since then, Kenya has often reminded Somalia a number of times that it hosts hundreds of thousands of refugee from Somalia and that Somalia should be grateful and not take a “friend” to a court. Kenya also has significant military presence in Somalia, which, some point out, is quite the statement.
Nairobi expressed intent, quite early in this narrative, that it wanted the issue settled out of court, noting a 2009 Memorandum of Understanding (MOU) between the governments and Somalia and Kenya, which reads, “The delimitation of maritime boundaries in the areas under dispute, including the delimitation of the continental shelf beyond 200 nautical miles, shall be agreed between the two coastal States on the basis of international law.” Its signatories are Abdirahman Abdishakur Warsame, then Somalia’s minister for National Planning and International Cooperation and Moses Wetangula, then Kenya’s minister for Foreign Affairs.
The Somali government, on its part, claims that the agreement was signed without the approval of its parliament, and the minister who acted for the government was not allowed to enter such agreement on behalf of the country, terming the April 7 2009 MoU “null and void.” Ironically, it has registered the agreement with the United Nations Secretariat.
The signing of the agreement has been a controversy in Somali politics: Warsame is now a fierce opposition leader who is considered a traitor by his countrymen for “selling his country.” Efforts to reach him by the Nairobi Law Monthly were unsuccessful.
Meanwhile, Wetangula recently submitted that the agreement gives the Kenya government ownership of the disputed area. “The territory,” he was categorical, “belongs to Kenya.”
As it is, Kenya seems wary what verdict the ICJ arrives at because it will be permanent and binding. Nairobi already lost an attempt to have the court declare it did not have the jurisdiction to determine the matter.
Maritime experts are of the view Somalia will likely win the case if precedent is to be relied upon. In a past dispute, a tribunal ruled in favour of the approach the Somali government wanted applied to settle the dispute – the equidistant line approach has always been the court’s favoured method.
“It is only in Nicaragua v Honduras that the ICJ departed from the principle of equidistant special circumstances principle/rule and applied bisector method because equidistant could not produce equitable outcome,” submits Prof Musili Wambua of the University of Nairobi.
Kenya has previously robustly rejected efforts by Somali to have the ICJ to solve the issue between the two nations, which includes delimiting shared coastal boundaries. The countries each have different demarcations drawn for each other based on an “equidistance line”. Kenya considers that the maritime boundary should follow the “parallel of latitude” where Somalia prefers using equidistance.
On February 7, 2019, Somalia held an event it said was to promote the Somali offshore resources, “to help interested clients understand Somali offshore potential from seismic data.” But Kenya, in a communique, said the event was an event to auction oil block which includes the disputed areas. Somalia, besides denying the fact, went on to submit that the presented blocks were not in the disputed region.
Among others, Nairobi demanded that its neighbour inform any future investors that it does not own the disputed territory, and that it shall “not be auctioned nor presented to investors by Somalia and its partners.” Kenya also wants Somalia to withdraw the case from the ICJ and instead solve it amicably. (