Kenya's decade-long efforts to resolve maritime dispute with Somalia hit a dead end

 

Part of the security perimeter fence along the Kenya-Somalia border. [Courtesy]

Kenya tried to push for an out-of-court solution to the maritime dispute with Somalia but in vain.

The country tried to engage Somalia through the African Union, individually but all these efforts hit a dead end.

AU’s Peace and Security Council (PSC) invited both countries to give their side of the story. This was in 2019. However, Somalia rejected the offer and failed to appear in the first meeting, saying that it would not discuss a matter that was in the International Court of Justice.

Somalia, however, sent its minister for foreign affairs Abdulkadir Ahmed Kheir in the second meeting.

“The AU strongly calls on the Federal Republic of Kenya to pursue and intensify their engagements with the view of finding an amicable and sustainable solution to their maritime boundary dispute; in this regard, AU calls parties to refrain from any action that may threaten the existing good neighborliness between the two countries,” PSC’s statement on the September 5, 2019 meeting read in part.

Kenya sent its Ambassador Catherine Mwangi, who is Kenya’s Permanent Representative to the AU. She explained that several attempts by Kenya to have bilateral discussions on the matter had been rebuffed by Somalia. Mwangi sought the intervention of the AU’s PSC in order to facilitate the two parties to reach a negotiated settlement.

Matter before court

Mr Kheir on the other hand expressed displeasure at having the dispute brought before the security council while it was before the ICJ. According to the minister, the case was being addressed by the court. The council recommended that Mr Keir should urgently intervene to find a long-lasting solution for the two countries.

When this did not bear fruit, President Uhuru Kenyatta personally met with Somali's President Abdullahi Mohamed Farmajo to try to resolve the dispute but these efforts hit a dead end. President Kenyatta met Farmajo in a closed-door session mediated by Ethiopian Prime Minister Abiy Ahmed.

“The pair discussed extensively the matter. As an outcome, both agreed to work towards peace and to take measures in addressing particular issues that escalated the tensions," said Ahmed on his Twitter account.

However, Somalia remained non-committal and sustained her resolve to stick to a court Kenya protested was partial. Ultimately, Kenya boycotted the hearing and in September this year, she formally walked out of the United Nation’s agreement which gives ICJ powers to resolve boundaries cases. She joins other countries, including the United States of America who has refused to comply with the ICJ’s judgments.

A comprehensive study by Eric Posner and the University of Chicago Law School on the Decline of the International Court of Justice established that of the 105 cases that had been submitted to the Court between 1945 and 2004, only 25 cases had complied with its decisions.

It is claimed that countries are shunning ICJ’s jurisdiction as judges are accused of muddying disputes more and failing to consider binding agreements between countries. There are also claims that the court has been a victim of conflicting interests among member states who use and control it. For Africa, are concerns that the composition and staffing of the international court remain unrepresentative of Africa.

What prompted Somalia to sue Kenya? According to Kenyan authorities, the case before ICJ is purely out of commercial interests being explored, with an intention to exploit minerals beyond its borders by foreigners. This has raised fears in the Government that if the unholy push persists, Kenya will be a landlocked country.

In 1982, Somalia, through the former president of the International Court of Justice Abdulqawi Ahmed Yusuf, supported Kenya’s equitable sharing idea. This presentation was made at a UN conference on the law of the sea. Justice Ahmed, a Somali national, now presides over the court in which his motherland has sought to extend its claim in the sea.

“Such delimitation should be effected in accordance to equitable principles,” he said in a conference held in Montego Bay, Jamaica on December 10, 1982.

“Somalia is not offering, nor does it have any plans to offer any blocks in the disputed maritime area until the parties' maritime boundary is decided by the ICJ," Somalia replied to Kenya’s protest that it had sold the blocks.

Back to independence

For the last 35 years, the two countries respected a maritime boundary running eastward as contained in the 1979 Presidential Proclamation until 2014 when Somalia took Kenya to court. The dispute between Kenya and Somalia dates back to independence.

The war-scarred country had claimed parts of the former Northern Frontier districts of Kenya (North Eastern Province).

The regions that Somalia then claimed belong to her included Northern Kenya, Ogaden in Ethiopia, Djibouti, and Somaliland as well as its present territory.

The dispute after independence was about land territory. The past disputes between the two states were resolved through amicable agreements mediated by Congo and Zambia under the Organisation of African Unity.

It was after these mediations that Kenya opened its boundaries and Nairobi established diplomatic relations with Somalia.