By Ahmed Hirsi
On November of 2015, I wrote an article on the maritime ‘dispute’ which was published on WardheerNews. And after I meticulously researched and analysed various videos and articles on the recently concluded public hearing on the ‘dispute’ at the International Court of Justice in the Peace Palace in the Hague, I would like to share my findings and conclusions to WDN esteemed readers, knowing that I am not an expert on this complicated legal tussle between Kenya and Somalia but as a concerned Somali citizen.
Biased media and fear mongering tactics against Somalia
I have spent many hours watching news clips posted on YouTube by a number of Kenyan TV networks such as KTN, Citizen TV and not to mention China’s CCTV News. Strangely enough, all the news clips that I researched except from those broadcast by Somali media outlets were not only riddled with bias but showcased the length Kenya would go to not only deceive the world but its own citizens.
What additionally stunned me most was a British correspondent at Hague for China’s CCTV News. This correspondent went at great lengths at spinning the story so much so, he said “if the case went on Somalia’s way, that it will not only have security ramifications in Kenya but in the whole region as a whole”
On several occasions, Kenyans also postulate the notion that “Kenya will become a landlocked country if its attempt to annex part of Somalia’s territorial water fails”
Delimitation method
From legal point of view, Somalia completely opposes the delimitation method proposed by Kenya and argues that Somalia’s sea boundary should extend perpendicularly on a straight line, which is internationally and widely accepted mode of arbitration framework when it comes to delimitation of maritime boundaries between two adjacent states with overlapping sea boundary. Somalia stands by its coordinates as shown by this map and would not budge into any pressure. Somalis are not prepared to give away one inch of their territory let alone big swathes.
Out of desperation Kenya resorted into every trick in the book and lame excuses in avoiding The International Court of Justice (ICJ) arbitration as well as its jurisdiction as it was demonstrated by Somalia’s legal team.
Kenya’s greed based and expansionist agenda via bi-literal negotiation agreement and defectively and disastrously linking a Memorandum of Understanding (MoU) with delimitation and non-existent out of court settlement with Somalia is doomed to fail.
Kenyan dishonesty
Somalia has no more appetite for time wasting and endless negotiations that are masked behind various schemes and plots. The hearing at Hague demonstrated Kenya’s sweet talk and persuasion tactics, painting an altruistic picture of itself.
Here are few examples that validate Kenya is, was and will be dishonest with Somalia:
First, Kenya used dirty tricks and smear campaigns through the use of fear mongering tactics and the Alshabab and terrorism card in an attempt to tarnish Somalia and Somalis image at Hague public hearing.
Second, the Alshabab card has no correlation with the delimitation of the sea boundary between Kenya and Somalia. The Alshabab menace is a quandary facing the whole region, hence cooperation between neighbouring counties is required both in terms of containing and eliminating Alshabab, therefore Somalis have an obligation to lend Kenya a hand and vice verse.
Truly, Kenya’s assistance to Somalia is undeniable as I had noted in part one article, but linking the current border dispute with favours between neighbours and brothers with the expectation of Somalia giving away part of its territory in return for Kenya’s favour is not only absurd but it doesn’t click at all.
In countering Kenya’s assertion in containing Alshabab in Southern Somalia, there are a number of Somalis who will argue, Kenya went to Southern Somalia to safeguard its own interest, and in particular they cite the ongoing oil explorations in the Somali territory, Kenya illegally occupied and awarded exploration licenses to foreign companies.
There are also those who argue the money acquired from these licenses should be kept by ICJ until a verdict in this case is reached by the court and these companies must be forced out of the contested area by the United Nations as soon as possible.
Kenya has cashed on many blocks which are located in the ‘disputed ‘area that belongs to Somalia ( see map).
Thirdly, in 2012 Kenya bought one of the biggest war ships in Africa at the cost of $55 million while the negotiations between Kenya and Somalia were ongoing at the same time Kenya dished out the aforementioned explorational licences in the Somali waters.
As a matter of fact, I was pretty much disappointed simply because this war ship wasn’t mentioned during the hearing. How is it possible to achieve a bi-literal settlement when the disputed territory has been occupied by Kenya? How does this action contribute to peace and security in the region.
Regardless of what tactics Kenya will apply, in the end the ICJ will deliver its verdict on this case, perhaps not in our life time , but the fact of the matter is Kenya is liable to forfeit the triangle that stretches for more than 100,000 square kilometres, this will in no way make Kenya a land locked country.
Somalia’s First Class Legal Team
Thank God Somalia hired one of the best legal team in the world, specifically Paul Reichler who is a well known and experienced figure that won important cases at ICJ.
The lead Attorney for Somalia Mr. Paul who is also known as the World Court, represented Nicaragua in its landmark victory over the United States in the Case Concerning Armed Activities in and against Nicaragua. Paul is not only eloquent speaker but experienced and he has a number of big wins on his belt. I had to watch his well presented arguments more than 5 times on Youtube. So in terms of its legal team Somalia has nothing to worry whatsoever on this front.
On the other hand, Kenya is putting too much weight on fictional and fabricated stories and has resorted into legal mining and clauses that are not only contradictory to its claims but cannot be sustained both factually and legally. Somalia’s borders have been known way before Kenya attained its independence in 1963.
The current impasse was first crafted by former Kenyan president Mwai Kibaki as recently as 2005 with the so called ‘Presidential Proclamation’ Kenya cannot rely on presidential proclamation to create sea borders based on greed and imagination. As it used to argue “colonial borders must be respected” and this is exactly what Somalis are expecting from its neighbour.
Conclusion
The battle isn’t over yet, Somalis need to be alert, united and vigilant because Kenya is exploring other avenues and legal loopholes coupled with mitigating and special circumstances, such as Somalia is a failed state, Somalia is unable to police its waters and the piracy argument and if all these factors are well mixed together they might result into unintended/ deadly cocktail or recipe that might give Kenya sympathy on this case.
We must all fight against Alshabab and eliminate this murderous threat; equally piracy has to be fought by all of us. Let’s reclaim our dignity and glory and let’s build a prosperous and peaceful Somalia.
The damage, the MoU – almost created is crystal clear to all of us, had it not been drafted by Norway the story could have been a different one today. Let it be a lesson to all our future and present leaders.
Kenya is our neighbour and regardless of the outcome of this case, what is required is an atmosphere that is conducive for peaceful co-existence and cooperation between the twor nations, Somalia and Kenya.
Kenya needs to respect Somalia borders and its backers behind the scenes too. Somalia is for Somalis and Kenya is for Kenyans. Our colonial borders must be respected and maintained.
Kenya on its own wouldn’t have dared to annex part of our sea; other powerful nations with interest are involved. But the good news is Somalia has a legitimate case. If Kenya had a strong case it wouldn’t have rejected the ICJ arbitration and no wonder it’s opting for an out of court settlement time and again. The noose must be tightened. Becoming a stone in the shoe for Somalia won’t help Kenya. United we are stronger. Long live Somalia.
Ahmed Hirsi
Email: [email protected]
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