Kenya – Somalia: What does ICJ’s verdict mean for Mogadishu?

By Mohamed Sheikh Nor

Posted on Monday, 18 October 2021 14:55
Somali marine forces patrol the Indian Ocean waters after the ruling by the ICJ largely in favour of Somalia in its dispute with Kenya, setting a sea boundary in part of the Indian Ocean; in Mogadishu, Somalia October 13, 2021. REUTERS/Feisal Omar

Last week, the International Court of Justice (ICJ) ruled in favour of Somalia stating the disputed maritime triangle with Kenya must be split. Nairobi has since rejected the ruling, but for Mogadishu, the judgement is the beginning of a new chapter of tapping into resources within its territory.

The contested part of the Indian Ocean contains rich prospects, which includes fish, natural gas and petroleum. Both Kenya and Somalia lay claim to the area that covers about 150,000 square-kilometres. The strategic geographical location has attracted the interests of global powers and conglomerates, all eager to exploit the region’s lucrative resources. The future of the two countries is thus intricately connected to this area .

The dispute was taken to the ICJ in 2014 by then President Hassan Sheikh Mohamud. Two Somali women – Fawzia Yusuf Haji Adan and Muna Sharman – also played a pivotal role to ensure that Somalia eventually got justice through the ICJ.

Seven years later, on 12 October 2021, the ICJ gave its verdict that ideally declared the disputed area to be part of Somalia.

The nationalistic rhetoric of Kenya’s President Uhuru Kenyatta and Somalia’s President Mohamed Abdullahi Mohamed (Farmaajo) now places the two neighbouring countries on a collision course. Moving forward, pundits see the situation escalating.

Following the ruling, Kenyatta issued a statement denouncing the ICJ ruling in favour of Somalia and vowed to protect his country’s sovereignty that includes the contested part of the Indian Ocean.

The issues that are at the heart of this case unite all Somalis…”

After the ICJ’s verdict, Farmaajo pointed a finger at Kenya’s efforts to deliberately thwart efforts to resolve the dispute.

“Since assuming office, we encountered challenges from Kenyan authorities as they tried to subvert the path we had chosen, so this case had to be settled at the ICJ. The Kenyan leadership decisively and deliberately carried out a series of political interventions in the internal affairs of Somalia. The aim was to cause political unrest but that goal came to an end today and many thanks go to those who were involved in the case including former president, Hassan Sheikh Mohamud,” Farmaajo said.

The maritime case between the two neighbouring countries ignited nationalistic emotions among Somalis both at home and abroad, as many felt Kenya was deliberately infringing on their country’s sovereignty.

Means to unite Somalis

In her concluding statement during Somalia’s presentation in The Hague on 23 September 2016, lawyer Sharman captured the feelings of her nation by saying: “The issues that are at the heart of this case unite all Somalis, [despite] other differences [that] may divide us.”

Across Somalia, many believe the ICJ delivered justice and that the country will have full control of its ocean resources. The maritime case has united the country like no other time in the past and a favourable outcome is viewed as preservation of Somalia’s sovereignty.

“I think it is a great day for Somalia that we have won [a] boundary dispute against Kenya, the latter never had a case and lacked diplomatic skill to outmanoeuvre Somalia. [Kenya] thought Somalia, an elephant in the Horn of Africa, [had been] sleeping since the collapse of the state almost 30 years ago, but we have stood firm. Those trying to steal our resources never understood Somali culture and they will never attempt to grab our land again through paying bribes to politicians, as it happened in the past. The world has now discovered Somalia is well, alive, and vigilant, watching what is happening in their country,” said Hussein A. Gendisch, a former advisor to Somalia’s president and current vice-chair of the Institute of Financial Management and Good Governance.

Speaking after the trial, Captain Hassan Mohamed Afrah, the director of Somalia’s Maritime Administration, says: “…. This ruling means a lot to us economically because the country intends to exploit its natural resources that include gas and oil, and also tap into its fishing resources.”

Offshore drilling of gas and oil requires heavy capital investments and production will not start in the immediate future. However, Captain Hassan says the country has short-term plans for the disputed area.

“Tapping oil and gas can take place 10 years from now, but the natural resources that are at hand right now are vast fish resources. Our estimates indicate we can generate $250m every month, an income which […] can keep us from having to go to another country, while we remain dependent on donor aid. Our hope is that Somalia will soon become economically well off.”

Fallout from Kenya’s rejection of ruling

Kenya’s refusal to accept the court’s decision may have dire consequences on regional stability. Meron Elias, a Horn of Africa researcher with the International Crisis Group says: “I think that if Kenya has rejected the ruling, Somalia will have a hard time implementing the court’s verdict. The two countries should go back to the discussion table and look for a mutually beneficial way to implement the ruling. Perhaps common partners such as Qatar could facilitate the talks.”

Diplomatic tensions between Somalia and Kenya are bound to escalate if one party remains obstinate about the implementation of the ruling.

“I recommend that both countries commission ad hoc committees to tackle the issues and work on how to achieve peace and security for the region and the realisation of the court decision. Somalia and Kenya’s interests are intertwined, it is therefore vital to enhance the good neighbourly relationship,” Adan said after news emerged that Kenya had rejected the ICJ ruling.

Law scholar Makau Mutua, a Kenyan who is a SUNY distinguished professor and former dean at the University Buffalo School of Law, New York, expressed his views on Twitter, urging Kenya to “accept and move on.” He said: “In spite of ICJ’s reliance on illegitimate colonial cartography, Kenya must remember that respect for rule of law matters most when it’s inconvenient to you.”

History of dispute

At the International Court of Justice in the Hague on 28 August 2014, the Federal Republic of Somalia instituted proceedings against Kenya with regards to a dispute concerning maritime delimitation in the Indian Ocean.

The two countries had failed to reach an agreement, even after holding several bilateral negotiations.

Somalia’s President Hassan Sheikh Mohamud is credited for filing the case at The Hague together with Fawzia Yusuf Haji Adan, his foreign minister and former deputy prime minister, as well as Muna Sharman who headed the legal team.

Adan was behind the renewed push to recover Somalia’s national assets that were scattered across the world and it was at that time the Somalia government realised Kenya was encroaching on its ocean.

With regards to the security situation, I reckon that the leaders of both sides are wise enough and will not add more fuel into the already burning Horn of Africa region.”

As foreign minister, she was responsible for identifying an international team of lawyers conversant with marine litigation. Through the opening arguments, Sharman succeeded at convincing the court to hear the maritime case after Kenya challenged its jurisdiction over the matter.

Commenting on Kenya’s defiance of the court ruling, Adan said: “The ICJ ruling for Somalia and Kenya in my opinion is a win-win situation, but since Kenya has rejected the court decision, I believe there will be negative implications on the diplomatic relationship between the two countries. With regards to the security situation, I reckon that the leaders of both sides are wise enough and will not add more fuel into the already burning Horn of Africa region.”

Moving forward

Many Somalis view the maritime victory as a collective effort and have not pinned the success on a particular personality or leadership.

“The current government and even the previous one hugely invested in the case to ensure we win. These disputed oil and gas blocks are property of Somali citizens and the government needs to be careful about granting concessions in future plans,” says Gendisch.

He also calls for caution as the country celebrates its victory.

“We have to think deeply when we are signing concession contracts. Our parliament passed oil laws, but again, Somalia needs to follow rules and tender protocols before signing concessions. For example, oil contract concession candidates should prove their expertise in producing oil and the companies should have sound financial assets verified by accounting firms such as PWC, Ernest Young, Deloitte, KPMG or other notable global firms.”

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