Maritime row: Awaited ICJ verdict lifts lid on Kenya-Somalia mistrust

The expected verdict by the International Court of Justice is lifting a veil on the suspicions between Kenya and Somalia on intentions to steal territory from one another. 

On Friday, Foreign Affairs PS Macharia Kamau accused the court of being part of the ploy to interfere with Nairobi’s territorial integrity, and announced Kenya had withdrawn compulsory jurisdiction of the court for its bias.

The pre-verdict storm came as ICJ President Joan Donoghue and her panel of 13 judges prepare to read out the verdict of a case in which Somalia sued Kenya over a maritime boundary, seeking to have it drawn according to certain coordinates. If the ICJ rules in favour of Somalia, Kenya will surely loose a significant chunk of its sea territory with the attendant resources in there.

Yet Nairobi says this isn’t an issue of justice, but a back-door move to help foreign entities steal its land and waters.

“The court assumed jurisdiction where it had none, by effectively ignoring Kenya’s 1965 reservation that excluded disputes such as the present one from the court’s jurisdiction,” Kamau told a press conference, flanked by Solicitor-General Ken Ogeto, Kenya Defence Forces Vice-Chief of Defence Forces, Lt-Gen Francis Ogolla and Defence PS, Dr Ibrahim Mohammed.

“It is important for every Kenyan to understand that threats to territorial integrity are now no longer necessarily overt and direct. The filing of a case against Kenya at the court, and the court’s assumption of jurisdiction where it had none, are demonstrative of new tactics of using pseudo-judicial processes to undermine territorial integrity,” he argued.

Somalia did not immediately comment, but it had argued in its case that it sued because Nairobi refused to negotiate on a proper maritime boundary and to ensure that its own territory is not illegally yanked off by Kenya.

Nairobi is placing that decision by then President of Somalia Hassan Sheikh Mohamud, to sue at the ICJ as a continuation of outside parties to intrude. Somalia and Kenya have had tiffs in the past over territory. In the early 1960s, a bandit war emerged in north-eastern region in what came to be known as the Shifta War. Somalia’s leader then Siad Barre did not directly send his troops to fight, but Nairobi believed then that he was arming the groups to try and push for a unified ‘Somali nation’ that would have included northeastern province and Ethiopia’s then Ogaden region. The Shifta War ended with an accord between Kenya and Somalia signed in Arusha, but it seems the seeds germinated into continual tensions.

“The first threat to Kenya’s territorial integrity was overt and direct, during the Shifta War of 1967 – 1969,” Kamau claimed.

“Then, we ably and successfully demonstrated our resolution and steadfastness in the commitment to safeguard and protect our territorial integrity. We remain resolute and steadfast in the same commitment.”

Yesterday, Kenya showed it will not accept the verdict of the court, saying that whatever way the judges rule, the process was “flawed” and that the court had “it’s obvious and inherent bias but also of its unsuitability to resolve the dispute at hand.”

Long before the case was filed in 2014, Somalia and Kenya had signed an MoU to have the maritime issue discussed under the UN Commission on Law of the Sea (UNCLOS).

The signatories; Somalia’s then Planning Minister Abdulrahman Abdishakur Warsame and then Kenya’s Foreign Minister Moses Wetang’ula, tabled the deal in their respective parliaments. Kenya endorsed it. Somalia rejected it.

When Somalia sued, Kenya opposed the suit, saying there had been an agreed method of resolving the dispute. The judges agreed with Nairobi, but they still admitted the case, ruling that the alternative method was not exclusive, even though they said the MoU was valid without parliamentary approval.

Nairobi argued the court had no jurisdiction, which it also rejected and admitted the case. In fact, Kenya had alerted the court in 1965 that it had granted the ICJ compulsory jurisdiction, except in situations where there was alternative dispute resolution, the dispute involves a member of the Commonwealth and where the dispute can be solved by local laws.

In international law, compulsory jurisdiction is a principle that means that each state that has granted the court this type of acceptance has the right to sue other states and that it has agreed to appear before the court if sued. In the final oral hearing sessions, Kenya refused to take part in March, accusing the court of bias.

Nairobi announced it had withdrawn the compulsory jurisdiction of the court on September 24, but it was unclear what impact that will have on a case filed five years ago. ICJ is an organ of the UN, but it doesn’t have jurisdiction over every dispute between UN member states. It may occasionally render ‘advisory opinions’ filed by non-state actors, but it only handles legal disputes between states who must voluntarily agree to its jurisdiction.

Some countries have in the past withdrawn their declaration of compulsory jurisdiction, but usually not after the case has been heard. The US, for example, withdrew its declaration in 1985 after the ICJ accepted jurisdiction over a dispute with Nicaragua. Washington argued at the time the matter was political. Earlier in 1976, Greece sued Turkey over a continental shelf dispute which refused to attend sessions arguing it did not recognise the jurisdiction of the ICJ. In fact, the ICJ never examined the claims by Greece following Turkey’s refusal to attend court.

In Nairobi, officials say a flawed court process will weaken cooperation. “As a sovereign nation, Kenya shall no longer be subjected to an international court or tribunal without its express consent,” said the Foreign Affairs PS.

Judgements by ICJ are usually binding between states in the case and have no option for appeal.

If Somalia wins, it could be President Farmaajo’s political victory, especially since the planned elections which were to be completed on Sunday have solely been delayed. It is unclear when the presidential polls will be held as the legislature has not yet completed electing members of the bicameral federal parliament.

Farmaajo had rejected Kenya’s pleas to have the case withdrawn for talks, promising any such discussions should happen only after the verdict. Yet even his victory may be expensive to implement: He will have to rope in outside parties, at a cost to help draw up the boundary as the court instructions will say.

It will also need Kenya’s cooperation on the matter, which now seems remote. The PS warned consequences of the judgment will impact the region economically, politically and in matters security, at a time when it is being rocked by terrorism, instability and conflict.