What you need to know:
- In March, Kenya withdrew from participating in the case court proceedings.
- Five days before the ruling, the government officially announced it will not recognise or abide by it.
Kenya’s reaction to the unpleasant verdict from the International Court of Justice (ICJ) on the maritime boundary case with Somalia came as no surprise. “We reject the ruling in totality,” announced President Uhuru Kenyatta. “It will have profound security, political, social and economic ramifications in the region and beyond,” warned the Ministry of Foreign Affairs.
In March, Kenya withdrew from participating in the case court proceedings. Then five days before the Tuesday ruling, the government officially announced it will not recognise or abide by it. Nairobi may have left the door open for a negotiated diplomatic settlement. Yet the clear, underlying message is she won’t budge an inch.
So what happens next? Nothing dramatic, really. The judgement cannot conceivably be enforced unless the more powerful party — Kenya — is agreeable. There will be heightened diplomatic activity, for sure, as both countries seek to curry favour with countries and bodies they think will advance their position. Still, the status quo in the disputed maritime area is unlikely to change. Talk of ICJ imposing sanctions against Kenya is just hot air. There’s nothing like that in the court’s statute.
The UN charter does empower the UN Security Council to enforce ICJ rulings. However, such enforcement becomes null and void if any of the five veto-wielding permanent members of the Security Council objects. Currently Kenya occupies a rotational, non-permanent Security Council seat for a period of one year. This will strengthen her hand in the interim in her dispute with Somalia.
More importantly, in the history of the Council there are precious few instances when it acted resolutely and unanimously to enforce ICJ rulings. This would apply only when non-enforcement of a particular ruling threatened “international peace and security,” which is the UN Security Council’s raison d’etre. A local maritime dispute between Kenya and Somalia hardly qualifies as such unless it blows up into a military conflict. Nor does it, so far, directly threaten the vital interests of any of the five veto-holding powers.
Enter geopolitics. Somalia’s frustration over its many unresolved territorial issues with neighbouring states long ago drove it to have second thoughts on the OAU, which with its AU successor has steadfastly upheld the doctrine of the inviolability of African boundaries inherited from colonialism. You can imagine the sheer bedlam across the continent if this doctrine was trashed. To widen her options, Somalia in 1974 joined the Arab League.
War on Al-Shabaab
However, Somalia’s present problem with Al-Shabaab has weakened her overall diplomatic leverage, especially with Kenya being part and parcel of the multinational African military force occupying the country to fight Al-Shabaab.
Nor would Somalia find favour with the US and EU, which are strongly invested in the fight against Al-Shabaab, were she to escalate the maritime boundary dispute with Kenya in a belligerent way. Basically the US and EU regard Al-Shabaab as the far more deadly plague compared to the maritime quarrel. There’s been a lot of chatter in Somali blogs about the Turkish navy coming to Mogadishu’s aid. That is just idle talk. The correct position is that there exists a joint agreement to patrol the Gulf of Aden, but Turkey knows better than to extend this to disputed waters.
Somali has no navy to speak of. Kenya has. In fact it recently upgraded the naval base at Manda Bay near Lamu, which also serves as a forward base for US military operations into Somalia. In light of the maritime dispute with Mogadishu, the upgrading could not have been incidental.
The Big Boys of the UN Security Council don’t like opening Pandora’s Boxes that could throw up nasty, unpredictable consequences. That is particularly so when it comes to failed states. By and large they prefer the least destabilising approach to such disputes: negotiations. That fits well with Kenya’s stated position vis-a-vis Somalia. Now, with the ICJ verdict, there’s the very real possibility of the emergence of new demands for the redrawing of maritime boundaries across the entire Indian Ocean coastline of Africa.
As a rule, eastern Africa’s maritime boundaries follow lines of latitude. Suppose after the Somalia ruling Kenya decided to adopt the “equidistance line” argument with respect to our maritime boundary with Tanzania? Incidentally that would give Kenya a slice of Pemba Island. Can you imagine the total diplomatic uproar this would provoke? And suppose Tanzania did the same with her maritime boundary with Mozambique? And Mozambique followed suit with South Africa? That would surely turn the Indian Ocean seaboard into a messy conflict zone.
Article 31 of the ICJ statute allows parties in a case — in this instance Kenya and Somalia — to each second a judge of their choice to complement the 15-judge ICJ bench. Somalia has had a sitting ICJ judge since 2009. In fact, his presence was central to Kenya’s core complaint of ICJ “bias.” Yet it is not clear to me why Kenya did not exercise her right to nominate a Kenyan judge to counter him. True, this may not have mattered all that much in a large 15-member bench. Yet the inside knowledge he would have offered the other judges of Kenya’s broader perspective on the case would have been invaluable.
Ngai, I woke up last Sunday morning to the news that my native region was ‘owned’ by some politician who is an outsider. He had declared that whoever wanted to go to the Mountain must pass through him. Wah! My region’s wealthy wazees have also become the target of his insults. They no longer have any role in the Mountain now that it has an owner. OMG! ‘Mwene Nyaga’ should consider Himself replaced from His timeless home atop the Mountain.