By Victor Ndia
The hearing of the Kenya – Somalia maritime dispute case at the ICJ was deferred to June 2020. As this date approaches, there is mounting evidence that the fledgling regime in Mogadishu is using the dispute to divert attention from its many internal problems.
The case, which Somalia filed in 2014 and has refused to withdraw in defiance of the African Union and IGAD, will be heard starting June 2020 at the International Court of Justice (ICJ) in The Hague.
International norms privilege the settlement of disputes through negotiations. Strangely, the government of Somalia under President Mohamed Abdullahi Mohamed, otherwise known as Farmajo, maintains a dogmatic approach and has defied friendly advice of negotiations.
Instead, Farmajo prefers that the case be determined by the ICJ, whose president is a Somali national.
Kenya has, on the other hand, been persistent in her push for a pragmatic and amicable solution through negotiations that would lead to an out-of-court settlement.
Kenya’s position is well aligned with international mechanisms for non-combative conflict resolution. As the legal maxim goes, a good settlement is better than a good judgment.
The maritime dispute has caught the attention of various international actors. During the 74th United Nations General Assembly (UNGA) 2019, both international and regional players tried to mediate between Kenya and Somalia.
The AU once again got involved through Egyptian President Abdel Fattah el-Sisi, the current Chairman of the AU, who initiated talks in the sidelines between Kenya and Somalia and urged the two countries to try and reach an amicable solution.
However, as usual, an adamant Farmajo maintained his hardline stance, saying he would not withdraw the case from the ICJ.
Farmajo’s push for retributive justice is suspect and is counter-productive. It is clear that his obsession with the legal process is hinged on a belief that ICJ President Abdulqawi Yusuf will rule in favour of Somalia.
Farmajo’s strong conviction that Yusuf will rule in favour of Somalia is credible. Already, Yusuf has expressed open bias on the case.
There are reports that Yusuf is jostling to become the next Somalia president. If true, he is likely to use the maritime dispute case to shore up his Somalia nationalist credentials, although, like Farmajo, he holds dual-citizenship.
It is also noteworthy that Farmajo and Yusuf come from the same Marehan clan, which is one of the dominant clans in Somalia. In a country where clan loyalties run deep, Farmajo would be more than happy to bequeath power to a fellow clansman, making Somalia a Marehan fiefdom.
This further confirms justifications for concern over conflict of interest and credibility of the Judge’s ability to fairly adjudicate the dispute between Kenya and Somali.
As well, while the international community has invested in the country in order for it to build its infrastructure, all that money has ended up in the pockets of a few elites close to senior Somalia leaders.
There are indications that Somalia leaders will stop at nothing in their quest to maintain power. The Somali government operatives have been known to torture and extradite Somali freedom fighters that do not belong to the ruling clan. Abdikarim Sheikh Muse was deported to Ethiopia.
More recently, reports of an ominous rapprochement between Formajo’s government and the Al-Shabaab terrorist organization have emerged. In an undated video, Farmajo is seen speaking in Somali dialect encouraging Al-Shabaab to attack Kenya. The ripple effect of this has been frustrating Kenya’s efforts in dealing with the group.
It is clear that Farmajo does not have his own country’s interest at heart, but his own.
To deflect attention from himself and to remain relevant, he has resorted to state-sponsored terrorism, violence, nepotism, clannism and promoting inter-clan rivalry which have compromised his role as a symbol of national unity for the country.
Factions within his government are reportedly interfering with and frustrating the smooth operations of the country’s federal member states of Galmudug, Hirshabelle, Jubaland, Puntland, Somaliland and Southwest Somalia.
Alarmed by his incompetence, members of parliament have in the recent past organized for his impeachment on grounds of breach of oath of office, violation of the constitution, abuse of office and treason.
The maritime dispute should therefore be seen in this light – a personal struggle to remain relevant in the face of huge internal challenges.
To remain in power, Farmajo is willing to auction Kenya alongside his own country, although Kenya could decide to become aggressive given that it also has the machinery to do that.
An out of court settlement remains the best option to resolve the maritime dispute between Kenya and Somalia. In the unlikely event that ICC rules in favor of Somalia, a crisis of monumental proportion will occur.
This crisis will most definitely involve the reconfiguration of boundaries of various countries such as Tanzania, Mozambique and all the way to South Africa and beyond.
In the worst-case scenario, a ruling in favor of Somalia will also upset the delicate balance that established post-colonial African states when the states agreed to maintain colonial boundaries in 1963.
All Kenya can do at the moment is to continue its diplomatic efforts to resolve this dispute through negotiated means.
As well, while the international community has invested in the country in order for it to build its infrastructure, all that money has ended up in the pockets of a few elites close to senior Somalia leaders.
There are indications that Somalia leaders will stop at nothing in their quest to maintain power. The Somali government operatives have been known to torture and extradite Somali freedom fighters that do not belong to the ruling clan. Abdikarim Sheikh Muse was deported to Ethiopia.
More recently, reports of an ominous rapprochement between Formajo’s government and the Al-Shabaab terrorist organization have emerged. In an undated video, Farmajo is seen speaking in Somali dialect encouraging Al-Shabaab to attack Kenya. The ripple effect of this has been frustrating Kenya’s efforts in dealing with the group.
It is clear that Farmajo does not have his own country’s interest at heart, but his own.
To deflect attention from himself and to remain relevant, he has resorted to state-sponsored terrorism, violence, nepotism, clannism and promoting inter-clan rivalry which have compromised his role as a symbol of national unity for the country.
Factions within his government are reportedly interfering with and frustrating the smooth operations of the country’s federal member states of Galmudug, Hirshabelle, Jubaland, Puntland, Somaliland and Southwest Somalia.
Alarmed by his incompetence, members of parliament have in the recent past organized for his impeachment on grounds of breach of oath of office, violation of the constitution, abuse of office and treason.
The maritime dispute should therefore be seen in this light – a personal struggle to remain relevant in the face of huge internal challenges.
To remain in power, Farmajo is willing to auction Kenya alongside his own country, although Kenya could decide to become aggressive given that it also has the machinery to do that.
An out of court settlement remains the best option to resolve the maritime dispute between Kenya and Somalia. In the unlikely event that ICC rules in favor of Somalia, a crisis of monumental proportion will occur.
This crisis will most definitely involve the reconfiguration of boundaries of various countries such as Tanzania, Mozambique and all the way to South Africa and beyond.
In the worst-case scenario, a ruling in favor of Somalia will also upset the delicate balance that established post-colonial African states when the states agreed to maintain colonial boundaries in 1963.
All Kenya can do at the moment is to continue its diplomatic efforts to resolve this dispute through negotiated means.
Victor Ndia, a Political Advisor and Maritime Dispute Expert, is based in Nairobi.
Source: International Policy Digest
