Which way for Kenya and Somalia after ICJ ruling?

• The ICJ has split the disputed maritime triangle between Kenya and Somalia
• ICJ rejected Kenya’s argument of a pre-existing agreement with Somalia on a parallel boundary
• The court also rejected Somalia’s claims that Kenya violated international laws

The International Court of Justice (ICJ) has ruled in favour of Somalia by defining the boundary using a 1934 treaty agreement between Italy and Britain.

By so doing, the colonial powers beacons have been recognised pursuant to international law and conventions.

However, the ruling remains a grey area since on March 18, 2021, Kenya announced that it would not participate in the Maritime Delimitation Case at the ICJ.

This decision, according to Kenya’s Foreign Affairs Ministry, was on account of procedural unfairness at the Court. The decision, the MFA said, was made after deep reflection and extensive consultation on how best to protect the sovereignty and territorial integrity of the Republic of Kenya.

In addition to other reasons why Kenya would not be a participant, the MFA said that the Kenyan government had also informed the Court that influential third party commercial interests were fuelling the case that threatened to destabilize the peace and security of an already fragile region.

Read: Sleeping giant awakening in Somalia banking sector?

“The speed at which the matter was rushed before the Court and the players involved in this dispute, pointed to a well-orchestrated strategy of pitting the countries against each other in total disregard to the precarious security situation in the region. Influential third parties are intent on using instability in Somalia to advance predatory commercial interests with little regard to peace and security in the region,” noted the MFA.

On October 12, 2021, the ICJ has ruled in favour of Somalia in the case pitting the two countries against each other.

Kenya and Somalia have been in a feud for years over the contested stretch of the Indian Ocean believed to have enormous deposits of oil and gas. Both countries claim ownership of the strip.

To push the ICJ to extend the case hearing period, Kenya attributed the request to the Covid-19 pandemic saying it struck when the East African nation had just recruited a new legal team.

Kenya argued that its legal team had not had an opportunity to have preparatory meetings and engagements regarding the case. The court has failed to appreciate the fact that Kenya is exactly where it was at the beginning of 2020 with regards to its compilation of its international legal team.

“Without such necessary preparations, Kenya is of the considered view that any participation in the hearing will be nothing more than a perfunctory, cosmetic and symbolic exercise,” noted the MFA statement.

Kenya said that the seriousness of the case required proper and adequate preparation and thus, it would be ill-advised for the country to participate in a complex case with far-reaching consequences with inadequate preparation.

With these outstanding issues and other related matters, Kenya said it was forced Kenya to stand back from the court insisting that the resolution of the border dispute was rightful on the bilateral and or continental platform.

Why the Kenya-Somalia border dispute?

The disagreement between the two countries comes from a dispute over the direction their border extends into the Indian Ocean. Somalia, a horn of Africa nation, argues that its maritime boundary should be in the same path as the country’s land border. In essence, the border should run in the same south-easterly direction.

However, Kenya says the border should take a 45-degree turn at the shoreline running latitudinally. This leaves Kenya with a larger share of the maritime area.

In addition to its oil and gas, the disputed area which is estimated at 100,000 square kilometres is also a rich ground for fishing.

With these riches, both countries accuse each other of auctioning off blocks in the area.

Read: Kenya, Ethiopia pulling together as Somalia wavers

The deteriorating relationship is a matter of concern since the dispute could spark an armed confrontation between the two countries.

The biggest underlying issue is the oil, gas and tuna rich maritime territory ownership in the Indian Ocean and the question that now begs an answer is whether these African neighbours can afford an armed confrontation.

Casualties of the Kenya-Somalia border dispute

In February 2019, Kenya expelled Somalia’s ambassador and recalled its ambassador from Mogadishu claiming that Somalia had auctioned oil blocs in the disputed territory. In tandem, Kenya introduced a compulsory stopover in Wajir for planes from Mogadishu. Kenya also pooled its troops from the interior of Somalia towards their shared border an action that left Somalia vulnerable to al-Shabaab attacks.

Trade between the two countries has also suffered from the March 2020 Somalia ban of the importation of Miraa/khat from Kenya. This followed a decision by Kenya to stop issuing visas on arrival to Somalis.

But there could be a silver lining for traders from both countries since in August 2021, Somalia Prime Minister Mohamed Hussein Rooble assured that cross border trade between Kenya and Somalia would resume soon.

Prior to the announcement, Rooble held a closed-door meeting with Somali traders in Mombasa Wednesday. The meeting called for the strengthening of the diplomatic relationship between the two countries and the continuous collaboration in different sectors of the economy.

In 2019, Kenya exported US$116 million worth of goods to Somalia. The main products that Kenya exported to Somalia, according to the OEC, were rolled tobacco (US$41.2 million), other vegetable products (US$13 million), and Tea (US$5.71 million).

Over the past 22 years, exports of Kenya to Somalia have increased at an annualized rate of 6.02 per cent up from US$31.9 million in 1997 to US$116 million in 2019.

On the other hand, Somalia exported US$4.32 million to Kenya in the same period. The main products that Somalia exported to Kenya were prefabricated buildings (US$3.44 million), other electrical machinery (US$210,000), and other cast iron products (US$210,000).

In the last 22 years, Somalia’s exports to Kenya increased at an annualized rate of 31.4 per cent, from US$10, 500 in 1997 to US$4.32 million in 2019.

Way forward

The Italian Institute for International Political Studies (ISPI) notes that although the two countries’ maritime territorial dispute needed guidance by international maritime laws principles, they should have explored alternative dispute resolution mechanisms before resorting to the ICJ.

“The zero-sum outcomes associated with the ICJ are not desirable in this context, hence the need for Kenya and Somalia to move towards a win-win solution through diplomatic dialogue,” notes ISPI.

ISPI added that the African Union’s Panel of the Wise was capable of leading the parties to the negotiating table since it is not hostile to any of the parties.

The AU panel could have facilitated negotiations so that both parties could have agreed to a joint exploration arrangement for mutual interest guided by a treaty like the Nigeria-Sao Tome and Principe Joint Development Authority. This Authority was created after the two states signed a treaty for a joint exploration venture in the Bight of Bonny.

As it stands now, Kenya and Somalia are set for a lengthy impasse with the ICJ ruling in favour of Somalia.

Read: World Bank gives Somalia US$75mn funding for healthcare