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Diplomacy is the only solution in Kenya-Somalia maritime dispute

By Kamau Muthoni | October 12th 2021

The dispute was filed by Somalia’s Foreign Affairs and Investment Promotion Minister in August 2014. [Courtesy]

Legal experts say the aftermath of today’s judgment on the maritime dispute between Kenya and can only be solved through diplomacy and not the court.

Kenyan lawyers who spoke to The Standard say that there is a likelihood that the International Court of Justice will terminate the case by finding that the court has no powers to solve the case.

At the same time, they are of the view that if that fails, then the court will settle the case either on the basis of Kenya’s boycott and later withdraw or settle it on its merits.

One Kenya Alliance (OKA) principals Musalia Mudavadi, Kalonzo Musyoka and  Moses Wetang’ula rallied behind President Uhuru Kenyatta yesterday, asking him not to compromise on Kenyan territory, the court’s decision notwithstanding.

“No single inch of the country should be given away. We will remain steadfast in guarding our territory and I ask President Uhuru to be on the watch out for any external aggression on our territory,” he said.

They spoke as experts expressed fears that Kenya’s hardline stance against the court could come to bite it at the rear.

University of Nairobi’s law professor Ben Sihanya is of the view that even with the ICJ determining the case, it will require Kenya and Somalia to again sit together and chart the way forward.

He says it is unfortunate that the two neighbours could not sit and negotiate before Somalia opted to go to the Netherlands based court.

Kenyan authorities have argued in court that Somalia ought to have engaged the East Africa Community first, then move to the African Union if the dispute escalated, instead of filing the case at the International Court of Justice (ICJ) in The Hague, Netherlands.

Kenya’s position was that Somalia did not exhaust all dispute resolution mechanisms before going to The Hague based court which Kenya accuses of bias and links to the war-scarred country. 

“Is the ICJ the ideal place to resolve the maritime dispute between Somalia and Kenya? Was it procedurally right for Somalia to go to the ICJ while at the same time presenting for auction subjects of the maritime dispute?” states Kenya’s argument. 

“Why did Somalia not seek recourse at the African Union under the African Union Convention on Cross Border Cooperation? Was the Intergovernmental Authority on Development (Igad) not an option for Somalia to present its case? What of the East African Community?” the documents read in part.

Ronny Abraham, a French national who has been judge in the court from 2005, leads the bench. [Courtesy]

In the document, Kenya accuses Somalia of ignoring African dispute resolution methods.

“Somalia played the race card by opting for a Eurocentric legal system as opposed mediation and conciliation as practiced within the African traditional methods of dispute resolution. What then would be the consequences of the ICJ favouring Somalia against Kenya in the maritime dispute?” states the writers

Prof Sihanya says that the judgment cannot fit in the shoes of a political or diplomatically negotiated solution.

“I think the court will render its judgment based on its understanding on the law and still hope we can pursue the diplomatic options and whatever option, we are neighbours. Whatever the option, in terms of enforcement, it will require the two states and UN Security Council and the African Union.”

“I think there is a room to pursue political and diplomatic options. Sometimes, legal options cannot take the space of political-diplomatic options. Whatever the outcome, Somalia, Kenya are not moving away, and we remain as neighbours. We must find how to live together especially in Somalia, which is politically, and security-wise unstable and it’s unfortunate they were not sufficiently pursued in time,” says Sihanya.

Kenya’s maritime area is approximately 255,000km, which was determined through parallel of latitudes in 1979. Somalia recognised Kenya’s claim to the EEZ for 35 years.

However, in 2014, the Horn of African country filed a case before the International Court of Justice. The dispute was filed by Somalia’s Foreign Affairs and Investment Promotion Minister, Abdirahman Dualeh, on August 28, 2014, on behalf of his government.

The point of disagreement between Kenya and Somalia is the nature of the line of the maritime boundary.

Somalia asserts a centre line from the Kenya/Somalia land boundary terminus but Kenya insists on a straight line. Somalia’s central line carves out a triangle of the maritime area currently occupied by Kenya and where four oil blocks are located.

In 2019, Somalia floated for auction minerals within Kenya’s territorial waters alongside the four contested oil blocks.

A document named ‘Offshore Somalia 2019’ and leaked from Somalia’s Ministry of Petroleum and Mineral Resources showed five oil blocks in Lamu are a part of those Somalia has floated to investors.

It emerged Somalia had also reached out to firms that had cut ties with it to restart their exploration activities. Some expressed willingness.

The document showed prior to the breakdown of Somalia in 1991, giant International Oil Companies (IOCs) had taken possession of large acreage of its onshore territory, with exploration having started and 40 oil wells drilled.

Interestingly, Somalia officials, while offering tenders for hydrocarbon exploration in February 2019 in London, were quick to inform bidders that previously gathered seismic data was incorrect due to use of wrong geologic models.

Although Somalia and Kenya had for decades had a mutual agreement on the borderline, the former’s authorities lodged the dispute at the ICJ just a year after Soma Oil Limited, chaired by former British Conservative Party leader Michael Howard, inked its deal with the Horn of Africa nation on August 13, 2013.

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