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Kenya and Somalia’s maritime border spat risks degenerating

By Morris Kiruga, in Nairobi
Posted on Tuesday, 13 August 2019 09:27

Kenya's President Uhuru Kenyatta has acted to recover assets siphoned off to Swiss banks. REUTERS/Feisal Omar

As the Somalia-Kenya maritime dispute escalates into a legal and diplomatic spat, peace and security concerns take centre stage.

From September 9 to 13, the International Court of Justice (ICJ) in the The Hague will hear submissions from Somalia and Kenya over their maritime territorial dispute.

  • Somalia contends that its maritime boundary with Kenya should run on a diagonal, extending from its land border and not in the current flow parallel to the line of latitude.
  • The contentious triangle measures about 100, 000 square kilometres; for Kenya, it places 51, 000 sq km of its Exclusive Economic Zone and 95, 000 sq km of its continental shelf in jeopardy.

While the main resource issue has been the potential hydrocarbon deposits in the contested area, the dispute has the potential to escalate security issues in the region, especially as it encourages brinksmanship.

Both countries have officially accused the other of auctioning oil blocs in the disputed waters.

They have also been engaged in a diplomatic tit-for-tat, which escalated this year.

  • In February, Kenya recalled its ambassador to Somalia and expelled Somalia’s envoy in Nairobi.
  • In May, Kenya suspended direct flights from Somalia to Nairobi. Then it denied entry to three top Somali officials at the Jomo Kenyatta International Airport.
  • In response, Somalia said its officials would no longer attend meetings in Nairobi, and banned all Kenya-based NGOs working in the country.
  • In June, Kenya closed its border crossing with Somalia in Lamu citing security concerns.

Somalia first filed the case with the ICJ in August 2014, with Kenya raising preliminary objections on the court’s jurisdiction over the matter. Although the ICJ threw out the jurisdiction issue in February 2017, there will be other other issues at play when the case is heard.

A key one is that the current President of the court, Judge Abdulqawi Ahmed Yusuf, is a Somali national.

  • Yusuf has served in the court since 2009, and as Vice President from 2015 until 2018, when he was elected President.
  • Another is that a decision for Somalia would have a ripple effect on Kenya (it has another maritime boundary with Tanzania) and other countries along the Indian Ocean coastline.

Protests to the UN and military deployment

A bipartisan motion now before Kenya’s parliament seeks to compel the executive to do more to resolve the issue. One proposed solution is an official letter to the United Nations protesting Somalia’s “aggressive legalistic stance” to file with the ICJ without first using alternative dispute resolution mechanisms. As a last resort, the motion calls for the government to deploy the military in the disputed waters.

  • Kenya would rather the dispute is first considered by the African Union, the Intergovernmental Authority on Development, and the East African Community. A 2009 memorandum of understanding had provided for alternative dispute resolution.
  • A mediation attempt by Ethiopia’s Prime Minister Abiy Ahmed earlier this year also failed.

Among the security concerns is that the escalating diplomatic spat threatens Somalia’s peace and stability, and with it, the security of the entire region as well as international shipping routes.

It would also, according to Kenyan legislators, hamper the ongoing construction of a land border wall between the two countries and the fight against al-Shabaab.

  • Kenya has been battling the terror group in Somalia since 2011, and is now a core part of the African Union Mission in Somalia (AMISOM) forces holding Somalia’s fragile peace together. In the front lines, cooperation between Kenya’s and Somalia’s security forces is essential to combating terrorism.
  • While there are fears that Kenya could leverage this to force Somalia’s hand, its presence in Somalia is primarily for its own security. Ceding its gains against al-Shabaab to force the territorial dispute would be as costly for Kenya as it would be for Somalia, which has been rocked by multiple terror attacks this year. In late July, the mayor of Mogadishu was killed in one such attack.
  • While coordinated efforts by several navies managed to stop piracy off the coast of Somalia, pirates attacked two shipping vessels in April, raising concerns of a likely resurgence.

Bottom line: For Somalia, a win at the ICJ would be a diplomatic coup. However, without the support of its economically and militarily bigger neighbour, especially as al-Shabaab escalates its attacks on Mogadishu, it would be a Pyrrhic victory.

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