MARITIME TERRITORY

MAKODINGO: Somalia has no right to claim Kenya's maritime territory

Despite friendly interventions, Somalia instituted proceedings against Kenya.

In Summary

•For seven years, the Somalia Government failed to have control of their territory.

•Terrorist group Al Shaabab had control of a huge part of the country and launched numerous attacks in Kenya.

Map showing disputed maritime area.
Map showing disputed maritime area.
Image: FILE

On October 14 2004, Abdullahi Yusuf Ahmed was sworn in as President of the Transitional Federal Government of Somalia at a packed Basketball court in a Nairobi Stadium after two years of peace talks hosted by Kenya. This was the first time Somalia was attempting to have a National Government after the toppling of military dictator Mohamed Siad Barre in 1991. Nairobi was chosen for the ceremony because the Somalia Capital Mogadishu was deemed too unsafe for the ceremony.

For seven years, the Somalia Government failed to have control of their territory with the terrorist group Al Shaabab having control of a huge part of the country and launching numerous attacks in Kenya and abducting tourists. This led to the largest military operation by the Kenyan military, KDF on October 16 2011 dubbed “Operation Linda Nchi”. Al Shaabab was consequently defeated and their most strategic port of Kismayo reclaimed by KDF.

Despite all these friendly interventions and help stabilizing the Federal Government of Somalia, the latter instituted proceedings against the Republic of Kenya at the International Court of Justice on the 28th of August 2014, seeking the Court’s intervention for the Kenya/Somalia maritime border to be delimited following an equidistance line. They further asked the Court to find that Kenya has violated Somalia’s territorial integrity because of her activities in the now disputed area, and should thus pay reparations to Somalia.

Whereas the People of Kenya have always offered hospitality and refuge to the people of Somalia displaced by the unending clan conflict in their country, their leaders have cared for nothing more than personal benefit and aggrandizement. They have used every opportunity they get to auction parts of their country to the highest bidders all the while causing disaffection between their countrymen with those who have offered nothing but extended hands of friendship. These leaders who live lavish lifestyles in European cities with a promise of improving the lives of their people only come to Somalia to loot and plunder whatever they can lay their hands on before they return to those very countries for which they hold dual citizenships. Even as the lesser fortunate Somali citizens languish in refugee camps mainly in Kenya, their country’s leadership is more concerned about claiming oil blocks which they can then auction to European and Middle Eastern countries.

When Somalia was inhabitable even to their own leaders, the People of Kenya offered them a place and space to elect their parliamentarians and Government in Nairobi. And for over a year, the Somalia Parliament conducted its affairs from 680 Hotel in Nairobi CBD and their President’s official residence was in Nairobi. Even when their MPs fought in the “Parliament” in Nairobi, we did not lift a finger.

The current maritime boundary between Kenya and Somalia, along a parallel of latitude, was developed through Somalia’s acquiescence for a period of 35 year. Consequently, there ia already a maritime boundary by agreement between the two states. As evidence for this acquiescence, Kenya issued proclamations in 1979 and 2005, proclaiming a maritime boundary along the parallel of latitude. Somalia never protested until some of their leaders woke up from a long slumber to do so in 2014, over 35 years later.

It is useful to note that the Somalia delegate to the Third United Nations Conference on the Law of the Sea between 1975 to 1980 was Abdulqawi Ahmed Yusuf who later became a Judge of the International Court of Justice in 2009 (just 5 years before Somalia made its first claim to Kenya’s Maritime territory and was elected its Vice President a couple of months later in 2015. He became President of the Court in February 2018 for a period of three years until February 2021. This period is indicative as it is also the period within which the court made several inexplicable decisions against Kenya’s request. Kenya requested at least thrice to be allowed more time to prepare for the hearings due to exceptional circumstances occasioned by COVID-19 and the fact that it had procured a completely new legal team that needed more time to familiarize themselves with the case and prepare an appropriate defence to which the Court refused. Even when Kenya agreed to the date and requested oral hearings so that it could table new evidence that could not appropriately be presented by video-link, the Court refused, without reasons, to hear Kenya. Kenya withdrew from the case on the basis of procedural unpreparedness and even then, went further to request the Court to allow its agent (The Honourable Attorney General) to address the Court for thirty minutes on matters that had already been presented to the Court, the Court still inexplicably refused to entertain such a request.

The Court, under very clear persuasion and direction of a Somali President of the Court seemed to have made up its mind to rule against the republic of Kenya and give Somalia our disputed territory despite sufficient evidence to the contrary. The question the world must be left asking is, in whose interest is the court working? What was the emergency being cured by the Court’s decision to reject requests from Kenya at a time of obvious global upheaval caused by the COVID-19 Pandemic?

The answer could be found in a 2019 Report titled “Offshore Somalia 2019” in which the Somalia Government exhibited seismic oil blocks data for potential buyers in London on February 7 2019 sponsored but none other than potential oil explorers. Kenya accused Somalia of including oil blocks in the disputed 100km Indian Ocean triangle in the exhibition, with the full knowledge that the dispute is before the International Court of Justice. The boldness with which the Somalia Government exhibited these oil blocks in the disputed territory indicate that they could have gotten assurance from their countryman at the ICJ that the decision would go in their favour – a fact that rendered Kenya’s continual participation in that shambolic trial at the ICJ meaningless.

Like happened in similar cases in Nicaragua v United States where the US declined to participate in the proceedings on the grounds that the Court lacked jurisdiction in this matter, Kenya raised similar preliminary objections on the basis that Kenya and Somalia had entered a binding Memorandum of Understanding to resolve the matter by negotiations in 2009. We would therefore like the UN Security Council to which Kenya is currently President, to not give that biased and obviously retrogressive decision of the court (which we expect to go against us) any legitimacy given that it is the last port of call above which there is no appeal save for a stay of execution by the UNSC.

As we wait for the judgement on October 12, Kenyans should brace themselves for increased rhetoric from Somalia and their local sympathizers.

The people of Somalia must understand that Kenya has no intentions of honouring any adverse judgement of the Court to annex a big part of our maritime boundary and will be willing to do whatever is necessary to protect and maintain our territorial integrity.