Verdict on Kenya-Somalia border imperils peace in Indian Ocean

The Kenya-Somalia maritime dispute is not the proverbial fight between two bald men over a comb. Countries have gone to war over much less territory than the 100,000 square kilometre triangle of water on Africa’s Indian Ocean seaboard — said to be rich in fish and hydrocarbons reserves and the epicentre of a recent controversial ruling by the Hague-based International Court of Justice (ICJ). The court’s judicial over-reach is the newest threat to peace in Africa’s Indian Ocean zone. 

The road to the court was mined with mischief and mistrust. In 2009, the two neighbours agreed to settle their dispute through bilateral negotiations. Alleging that diplomatic attempts to resolve the matter had failed, Somalia reneged, rushed to ICJ and railroaded Kenya into the case. Somalia challenged Kenya’s boundary that run East along the parallel of latitude, insisting on an equidistant border South-eastwards.

Kenya pulled out of the court convinced that the ICJ had no jurisdiction over the case and its takeover of the one-sided arbitration amounted to using pseudo-judicial processes to undermine territorial integrity. The net effect of Somalia’s territorial ambitions is that its boundary would have intersected Tanzania’s and effectively rendered Kenya landlocked.

The court’s ruling acquiesced to Somalia’s proposed border, giving most of the disputed territory to Somalia and a little sliver of it to Kenya to create a narrow strait into the open sea and avoid turning it into a landlocked country. However, it rejected Somalia’s pursuit of reparations.

The judgement has profound ramifications for peace and security in Africa’s Indian Ocean region and beyond. First, it has complicated already rocky relations between Somalia and Kenya. Expectedly, Kenya will resist the whittling down of its current maritime territory — approximately 255,000 kilometres in line with a parallel latitude set in 1979 — by over 40 percent!

President Uhuru Kenyatta rejected the verdict, describing it as a ‘zero-sum game’ and vowing not to cede an inch of Kenya’s territory. For over half a century, Kenya has enjoyed untrammelled sovereignty and its sailors, seafarers, marine scientists and fishermen exercised the doctrine of effective occupation over this zone.

Maritime border feud

The ruling potentially makes the ports of Mombasa and Lamu unattractive to international maritime traffic. But Somalia’s President Abdullahi Mohamed Farmaajo has hailed the ruling as a historic victory, whipping pan-Somali nationalism to a fever-pitch. 

The big question is why there are no feuds over the maritime borders involving Tanzania, Mozambique or South Africa, all of which run parallel eastwards. Perhaps, the answer lies in what appears like Somalia extending its long history of making false and perilous territorial claims against its neighbours on land into the oceans.

In the 1960s, Somalia violated the African Union principle of respect of boundaries existing at independence, instead resorting to the “Greater Somalia” ideology to lay claim to its neighbours’ territories. The results were dire. Somalia’s claims over Kenya’s northern region triggered the Shifta War (1963-1967), which only ended when Somalia renounced its territorial claims and signed the Arusha Agreement on October 23, 1967, brokered by regional leaders — Kenneth Kaunda, Julius Nyerere and Milton Obote. Somalia’s expansionist dreams over Ethiopia’s Somali region sparked the 1977-78 “Ogaden War” which left over 4,000 people dead. 

The judgement strikes at the heart of the very spirit and purpose for which the court was created as the judicial arm of the UN Security. Article 94 of the Council stresses that “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party”. 

The operative word is consent. Had Somalia and Kenya mutually agreed to approach the court to arbitrate their case, ICJ’s verdict would have been final and binding on Nairobi. But the court railroaded Kenya into the case.

Hard-power options

In the Africa’s larger Indian Ocean region, the ruling recalls the historian’s verdict that Maximilien Robespierre, an influential figure in the French Revolution whose obsession with its ideals cost so many lives, would have made a better man had he concentrated on growing roses. Similarly, ICJ would have become a better court had it concentrated on spelling out the pertinent principles that would make maritime demarcations a non-adversarial and peaceful process. 

Instead, the ICJ ruling forces a rethinking of the 2009 Kenya-Tanzania mutual agreement that amicably set the common maritime boundary as a straight line along Pemba Island. It threatens to scuttle ongoing negotiations of other complex maritime borders involving Tanzania, Mozambique, South Africa, Comoros and Seychelles. Tanzania has already submitted to the United Nations Commission of the Continental Shelf (CLCS) its interest to discuss with Somalia about the maritime boundary. But as in the 1960s, Tanzania is a natural mediator in the Kenya-Somalia dispute.

Kenya joins other UN members who have ignored ICJ’s verdicts and withdrawn their recognition of the court’s compulsory jurisdiction, including the United States, China, Russia among others. International law does not contain an enforcement mechanism comparable to those of domestic legal systems. 

Article 94 (2) offers some light: “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” But with Kenya as a non-permanent member of the UN Security Council for 2021-2022 period and Kenyatta as the Council’s president for the month of October, Somalia will dither in taking this option.

Instead, the power elite in Villa Somalia might seek hard-power options. In mid-October, ahead of the ICJ ruling, the social media was awash with reports that the Turkish Parliament had approved a motion to deploy their naval fleet in Somalia’s territorial waters.

Earlier on in January 2020, Turkish President Tayyip Erdogan announced that Somalia had invited Turkey to explore for oil in its seas. Somalia’s hardliners posit that the country is counting on Turkey, which is already helping build roads in the country and trained Somali soldiers, as a reliable partner to help safeguard their waters and resources. In its first ruling on Africa Indian Ocean zone, ICJ has become part of the problem rather than a solution.

Professor Peter Kagwanja is Former Government Adviser and currently Chief Executive of the Africa Policy Institute.