At this point also, it is necessary for Kenya and Somalia to think beyond the current imperatives. Prime Minister Farmaajo has in the past spurned diplomatic overtures, in favor of an outright settlement by the International Court of Justice.
Regardless of how strong such a posture makes him appear in the contest for power within Somalia, Farmaajo is walking a tight rope since the ICJ’s decision could go either way. Were that to happen, he would be left with no room for maneuvers between total loss of face and entering a hot conflict with Kenya.
Both countries and the region in general would be drawn into a diversionary and disruptive war that would still end on the negotiation table anyway.
Since the overthrow of Mohamed Siad Barre’s Government in 1991, and the subsequent civil war, the Federal Republic of Somalia (FRS) has been and remains a failed state. As a seasoned failed state, the FRS has lacked administrative, policing and military capacity to exercise effective sovereignty over its land and sea. This has led to terrorists seizing large swathes of its land, now in the hands of Al-Shabaab, and other terrorists, not to mention pirates over its 3000km-long coastline. On a human level, over three million Somalis have officially and unofficially run away from Somalia and the vast majority has found new homes in Kenya.
Ironically, in August, 2014 this failed state was fit and conscious enough to file a case before the International Court of Justice, at The Hague, concerning a dispute in relation to “the establishment of the single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zones and continental shelf, including the continental shelf beyond the 200 nautical miles”.
The gist of Somalia vs. Kenya maritime dispute is that Somalia wants the maritime border to run diagonally as an extension of the land boundary; while Kenya wants it to run parallel to the latitude, eastwards, and south of Kyung.
Whatever the technical merits of these arguments might be, three things are worth noting for this commentary.
First, Kenya’s proposal for the boundary to run parallel to the latitude eastwards accords with the delimitation of maritime boundaries on the Indian Ocean coastline in relation to Tanzania, Mozambique, and South Africa.
Secondly, whilst Kenya’s coastline is 536km, Tanzania’s is 1,521km whilst Somalia’s is 3,333km, which is the longest in Africa.
Thirdly, in the probable event of Somalia winning the case, Kenya will lose to Somalia 26 percent (51,105km2) of its Exclusive Economic Zone (EEZ) and 85 percent (95,320km2) of the continental shelf beyond 200 nautical miles.
In other words, Kenya will be rendered virtually landlocked despite having over 500km Indian Ocean coastline. This is a scenario that is not only unacceptable but should not depend on the decision of the ICJ.
Strictly speaking, the sharing of the world’s marine resources has historically been more of a function of power (economic, military, political and diplomatic) than of law. The islands of Guam and Puerto Rico are US territories, thanks to more to US power than any logic or decision of an international tribunal. Falkland’s islands are about 13,000km from Britain and only 1,500km from Argentina; but the United Kingdom exercises sovereignty over them precisely because Britain is a greater naval power than Argentina, of which the 1982 Falklands war is a testament.
Well aware of these realities of power, China has staked its long-time ambition to turn the South China Sea into a “Chinese lake” on building a powerful navy and economic dominance over neighbors with competing claims. In fact, in July 2016, the ICJ in the case of the Philippines vs. China decided in favor of the Philippines.
China rejected the arbitration award. And in acknowledgment of de facto power realities, Philippine President Rodrigo Duterte has indicated that China and the Philippines might enter bilateral talks to resolve the dispute. This is the route Kenya should follow.
In my view, Kenya must do all it takes to force Somalia to drop its claims over our limited maritime resources. Kenya must make it clear that any probable Somalia victory at the ICJ will be deemed illegitimate unless and until Africa’s Indian Ocean coastline is demarcated afresh to give Kenya a share of the ocean proportionate to the size of its coastline.
It goes without saying that Kenya will have to enlarge its military and naval capabilities, otherwise, it might contend with this injustice forever.
As a case in point, the ICJ consists of 15 judges. All the five permanent members of the UN Security Council namely, the US, China, France, Britain, and Russia have always been represented by one judge each. Presently, Africa has three judges from Uganda, Morocco and Somalia’s Abdulqawi Ahmed Yusuf who happens to be the current President of the Court.
Equally, significant is that Somalia filed its case against Kenya in circumstances that compel the conclusion that it was acting as a proxy of various European and Middle Eastern states. Considering now that transnational mining companies prefer dealing with failed states to stable states, Somalia has a head start over Kenya at the ICJ because with empty offers, it is likely to auction the oil and gas blocks more cheaply; and in the foreseeable future it will not have effective capacity to know how much resources would be funneled out of the disputed areas.
Finally, it is surprising that Somalia and its local supporters are saying Kenya has adopted an aggressive attitude towards it.
In all fairness, Somalia should stop assuming every Kenyan is naive simply because some Kenyan buffoons have been incited by Al-Shabaab to turn against their country. It is well known that over 50 percent of Somalis in Nairobi are recent immigrants from Somalia and the Somali population has been rising faster on the Kenyan side of the land boundary.
Unless Somalia stabilizes within the coming decade, there may be more Somalis in Kenya than in Somalia. The point here is that if Somalia’s over 3,000km coastline is the common heritage of all the Somali people, it must be supposed that Kenyan Somalis have a share of it. At the very minimum, this would require the FRS to drop its case against Kenya in order to maintain the brotherly relationship between our countries.
In this connection, the leaders of Kenyan Somalis and noisemakers among them should start proving their patriotism a little bit louder by publicly demanding of their cousins to leave Kenya alone