By Abdirizak H. Nuurre, PhD

Somalis at home and in Diaspora are jubilant to witness the long-awaited court ruling of one of the most – if not the most – dramatic legal fight between Kenya and Somalia concerning maritime delimitation in the Indian Ocean. The two countries clashed in a prolonged legal fight inside the International Court of Justice for the past seven years, which resulted in Kenya ’s loss to Somalia – as well as Kenya’s withdrawal of its recognition of the court’s binding authority four days before the final ruling.

President Hasan Sheikh Mohamoud’s administration started the maritime lawsuit against Kenya in August 2014. Kenya rejected the litigation and filed in October 2015 a preliminary objection to the court’s jurisdiction, demanding the implementation of the controversial Memorandum of Understanding signed by the two countries in April 2009.

Kenya argued that the MOU was a binding agreement, and it was unnecessary for a third party to partake in the maritime delimitation process – that is – the two nations must resolve their maritime dispute through bilateral negotiations. Therefore, the international court lacks the legal power to hear the case.

Answering back to Kenya’s protest, Somalia submitted in February 2016 a written response arguing that the MOU was not a binding agreement. In the response, Somalia also said that Kenya failed to show up, without notice, to the third round of the 2014 negotiations that would have taken place in Mogadishu. Later that year, the court started to hear oral arguments on the MOU and the court’s jurisdiction over the maritime case.

On February 2, 2017, the World court ruled by a vote of 13:3 that it had jurisdiction in the case and ordered parties to continue proceedings. The court also found that the 2009 MOU did not establish, as Nairobi argued, a binding agreement to block the case to court. That was the first chapter of how Kenya was humbled on World stage under the leadership of President Hassan Sheikh Mohamoud.

To its credit, Farmaajo administration decisively won a prolonged legal and technical fight that lasted over seven years. On October 12, 2021, Somalia, under the leadership of President Mohamed Abdullahi Farmaajo, humbled Kenya once more on the Global stage in a resounding victory over the maritime litigation. The victory resulted in Kenya’s withdrawal from the ICJ when the country assumed in the same month the rotating presidency of the UN Security Council. As a result, Kenya lost the maritime case with a double defeat.

From my perspective, the two administrations share equally the credit of legally defending the country’s territorial rights. While President Mohamoud’s administration organized highly professional legal and technical experts, President Farmajo’s administration effectively used all the available tools and successfully transcended the goal by forcing Kenya to abandon its longtime obligation regarding its recognition of the court’s authority.

Why the 2009 MOU was Kenya’s only hope?

According to a document submitted to the commission on the limits of the Continental shelf in May 2009 – just about a month from the 2009 MOU – Kenya declared that it had overlapping maritime claims with adjacent coastal state of Somalia and that it had reached a Memorandum of Understanding with Somalia granting each country no objection in respect of submissions on the outer limits of the continental shelf to the Commission on Limits of the Continental shelf.

The document was proof of what experts foretold years before the 2009 MOU warning how Kenya was wildly expecting to illegally seize the adjacent and unguarded Somalia’s southernmost coastline. This unbridled dream of the Kenyan government intensified since president Mwai Kibaki assumed office in December 2002.

Kenya ignored the warning from various experts who argued that it was unlikely that Kenya’s geographical disadvantage, created by the alignment of the coast, will persuade Somalia that the line of equidistance is unfair.

According to Victor Prescott and Clive Schofield, two maritime law scholars, since Tanzania and Kenya agreed to use a parallel of latitude as their maritime boundary north of Pemba Island, Kenya’s exclusive economic zone narrows as it proceeds seawards. Therefore, Kenya was hoping to make up the waters it lost to Tanzania through its 2009 MOU with Somalia.

Finally, a few individuals to be honored in history books as heroes who forcefully, successfully, and professionally defended the rights of the nation’s territorial waters are Mohamed Omar Saalihi and Muna Sharman. They were the most instrumental icons for the maritime case. Symbolizing the technical and the legal side of the fight from each, according to Somalia government, they will top the list of the maritime heroes and their contribution will be one of the best noble works cited in modern Somali history.

Engineer Saalihi, born in the Horseshoe-shaped town of Luuq, was the Geodesist who developed key maps from the disputed maritime used by the legal team during the court’s proceedings. The engineer earned his master’s degree from Warsaw university in early 1970s, and according to Hiiraan later attained his PhD degree in UAE where he worked as geodesist for Dubai government. He died inside Aden Abdulle International Airport on September 2, 2021, after he received unsuccessful medical treatment in Turkey.

Muna Sharman was a lawyer and one of the key people who engaged in the maritime case day one. While in New York for meetings, Fowzia Yusuf Haji Adam met with Muna who approached her through the current Somalia Ambassador to Italy, Mr. Abdirahman Sheikh Issa. Muna persuaded Fawzia to act on the maritime case. Fowzia, the former Deputy Prime Minister and Foreign Minister shared Muna’s critical information with President Hassan Sheikh Mohamoud.

According to government sources Muna recruited Foley Hoag LLP law firm partners, Paul Reichler and Lawrence Martin, to lead Somalia’s maritime legal team. She later resigned from her position as a member of Somalia delegation for a private reason.

Other important individuals who involved in the maritime case include the current Deputy Prime Minister, Mahdi Guled Khadar, who successfully led Somalia delegation to the court for the past 5 years. The current and the former Attorney Generals, Ahmed Ali Dahir and Suleiman Mohamed Mohamoud are also members of the government commission and effectively participated in the case.

Dr. Ali Said Faqi who was Somalia’s ambassador to European Union, Fawzia Yusuf H. Adam, former Deputy Prime Minister and foreign minister, Abukar Dahir Osman, Somalia envoy to United Nations, Yusuf Omar Ahmed (Yusuf-Garaad), former foreign minister, and Khadra Duale, Chief of Staff to the Deputy Prime Minister, Fawzia, were either members of the government delegation who played distinct roles or involved in the case in a different way.

We should all thank these individuals and appreciate the tremendous amount of work, time, knowledge, courage, and intelligence they contributed to the cause. They successfully courageously, defended the rights of the nation’s territorial waters.

Somalia has shown the world that it will not accept any infringement on its territory. Kenya on the other hand, has embarrassed itself on the world stage with its unprofessional behavior. It would have been wise for Kenya to have accepted the international law. It has damaged its image on the world stage. If Kenya wants to repair its image it must not challenge the ruling any further.

Abdirizak H. Nuurre, PhD
Email: anurre5@gmail.com