Date: Sunday, 26 May 2019
An escalating maritime boundary dispute with Kenya is the newest real threat to stability and recovery in Somalia and peace in the Horn of Africa.
Tensions are rising ahead of a ruling on the row by the International Court of Justice scheduled for September 2019.
Kenya has upped the ante, accusing Villa Somalia of continued violation of its marine territory.
On May 21, 2019, it barred three senior Somali officials headed for the launch of the European Union-sponsored Cross-Border Conflict Management Programme from entering Kenya for lack of visas.
The diplomatic row is likely to deepen in the coming months.
Kenya plans to withdraw privileges given to senior Somali officials, resume stringent measures for Somali aircraft, step up engagements with Somali federal states, and tactically withdraw its forces from liberated areas in Somalia.
The Kenya-Somalia maritime dispute is a classic case of the complex dynamics of the “New Scramble for Africa”, as the Eastern Africa region becomes the newest frontier of oil production in the 21st Century.
In the 1979-2014 period, Somalia recognised the disputed maritime zone along a parallel of latitude as part of Kenya’s territory.
However, it shifted its position in 2014, triggered by reports of discoveries of massive amounts of hydrocarbon deposits and oil potential in the disputed stretch.
In August 2014, it took the case to the International Court of Justice (ICJ) at The Hague, Netherlands.
Occurring at a time when Kenya’s President and Deputy President were facing trial at the International Criminal Court (ICC), Somalia’s move was interpreted in Nairobi as a territorial grab ploy.
What is at stake in September is that if at the fall of the hammer the Court rules in favour of Somalia, Kenya will lose over 100,000 square kilometres of its current territory, which forms a triangle on its India Ocean Coast.
This fact brought the crisis to a head on February 6, 2019.
Kenya protested reports that Somalia had auctioned oil blocks in the disputed maritime territory to bidders during a conference sponsored by prominent oil multinationals in London, United Kingdom, summoning its Ambassador to Somalia and directed his Somali counterpart to return to Mogadishu.
Two reasons explain Kenya’s rejection of the International Court of Justice route.
First, the post-War international justice order is inadequate in effectively dealing with conflicts in Africa, a position popularised by two eminent Africans - former President of South Africa Thabo Mbeki and Ugandan scholar Mahmood Mamdani — in an article, "Courts Can’t End Civil Wars" (New York Times, February, 5, 2014).
The problem with this form of justice, the two argued, is that it assumes that “there would be no need for winners and losers... to live together in the aftermath of victory”.
Somalia and Kenya will continue to live together as neighbours for millenniums to come.
As former Indian Prime Minister Atal Bihari Vajpayee, aptly remarked in regard to Indo-Pakistan relations, “You can change friends, but not neighbours”.
The second position is that in the post-Cold War era, the international justice system is under the thumbs of powerful nations who use it to entrench their global hegemony and promote the interests of their multinational corporations.
Kenya should continue calling on Somalia to return to its 1979-2014 position.
But it also needs to re-focus attention on the real culprits, the international oil giants and prospectors who have fuelled and bankrolled its dispute with Somalia.
Nairobi should also pay attention to the geopolitical wars in the Gulf region, which are spilling over into the Horn of Africa and fuelling the Kenya-Somalia maritime row.
Research indicates that some Gulf States are underwriting Somalia’s case in the International Court of Justice.
Kenya’s diplomatic pressure on Somalia targets Somalia as well as Kenya’s own citizens who are casual and complacent about the seriousness of the maritime row.
However, reaching an amicable solution to the maritime dispute will, in the long run, demand that parties to the dispute tone down rhetoric and avoid strategies that are likely to inflame public passion, stoke narrow ethnic nationalisms and undermine the prospects of lasting regional peace.
Moreover, a hard power approach can embolden Somali militants and erode Kenya’s brand as a lead or pivotal state in the turbulent Horn of Africa.
The single lesson diplomacy has learned from boxing is that a champion has to carefully chose his challenger(s).
In taking on Somalia in a public and palpable way, Kenya is putting itself at par with Somalia, which needs its help.
Certainly, Somalia, now emerging from nearly three decades of civil war, is not in the same league with Kenya or Ethiopia.
In the context of inflamed passions of populations, the options for peace available to Kenya and Somalia are shrinking.
One scenario is that the Court rules in Kenya’s favour.
But pundits in Kenya have ruled against this possibility, citing the likely role of Abdulqawi Ahmed Yusuf, a Somali citizen, who is currently vice president of the court. Judge Yusuf may not be presiding over the Kenya-Somalia case, but perception is reality.
Kenya’s best case scenario is where Somalia withdraws the case from the ICJ and returns to the 1979-2014 consensus.
An interim position is where Somalia uses its discretion under the ICJ provisions to postpone the case to allow time for a negotiated solution to the maritime dispute.
However, in the context of the upcoming elections in 2020, and an intensely politicised Somali population on the issue, this would be suicidal for the elite in Villa Somalia.
Eventually, the onus is on Presidents Uhuru Kenyatta and Mohamed Abdullahi Mohamed to meet and calm the nations and the region, and to chart a pathway to a peaceful end to the dispute.
*Prof Peter Kagwanja is a former government adviser and currently chief executive officer of Africa Policy institute (Kenya). This article draws heavily from an ongoing research on “Troubling the Waters: Oil Multinationals and the Kenya-Somalia Maritime Dispute”.