It looks like the Kenya and Somalia border issue is throwing us back to an issue historians tend to think was settled in 1920. Right? Yes.
Kenyans have been treated to much more border drama on the Somalia side than on any of its other neighbours.
There was even the post-independent secession bid in which Somalia wanted to get Kenya’s North Frontier District. The end result was the bitter shifta war. But let me unpack this issue.
For starters, the straight lines in the Somalia border with Kenya were for a long time referred to as Milner-Scialoja lines because they resulted from a deal reached between British Lord Alfred Milner, by then the Secretary of State for Foreign Affairs, and Italian Foreign Minister Vittorio Scialoja.
These two diplomats sat in boardrooms in Europe and determined what their African territories would look like in the post-war period.
What we have had is a colonial problem that started during the First World War when Britain agreed to reward Italy with some territories if it agreed to fight on its side. Italy agreed to enter the war, but then took advantage of peace-time negotiations to ask for more land, especially the oasis in Jubaland.
The Jubaland Question, as it was known, was always problematic but by then it only concerned the land boundaries since the seas were not of concern to nations.
Actually, from the outset, Lord Milner argued that Britain was ceding more land territory than the French to appease Italy. He was afraid that Britain would lose its strategic position and that explains why he didn’t draw a straight line from Elwak to the Indian Ocean. It was this arrangement that saw the creation of what was known as British Somaliland (now the unrecognised state of Somaliland) and the Italian Somaliland — the chaotic part of Somalia.
That chaos is now returning to haunt us, and as documents filed in a Kenyan court say in part, Somalia is now a “client state” and multinational oil buccaneers appear to be calling the shots and want to redo the colonial sea boundaries that had been accepted as following a line of latitude on entry into the ocean.
Somalia has revisited the issue and has sued Kenya at the International Court of Justice (ICJ), seeking to redraw the maritime boundary from the current eastwards flow from the land border south of Kiunga, to a diagonal flow. This means that Kenya could lose 100,000 square kilometres of sea thought to contain huge amounts of hydrocarbons.
The current row between Kenya and Somalia is, however, much deeper — there are worries that multinational buccaneers could be inciting Somalia in order to get some oil blocks. There could be some truth in that.
Kenya has reason to get worried and it doesn’t seem to be getting luck at the ICJ, where this row is being played out.
First, some pundits believe that since the court is being chaired by a Somali, Kenya cannot get justice and risks giving the court jurisdiction to undo its borders — a matter than can only be tackled through a referendum.
Actually, a case has been filed in court to stop Kenyan officials from participating in the ICJ case.
“In participating in legal proceedings at the International Court of Justice, the aim of which is to determine with finality and in a binding manner, the maritime boundary between Kenya and Somalia in the Indian Ocean, the respondents have set the stage for the probability of the alteration of Kenya’s territory without following the procedure stipulated in the Constitution, namely, subjecting such an alteration of territory to approval in a referendum,” said an affidavit filed on Friday.
“As such, the people of Kenya will be presented with a fait accompli, thereby depriving them of the constitutional opportunity to exercise their sovereign power directly in determining how the territory of Kenya should be dealt with,” it adds.
In 1976, the Jomo Kenyatta government agreed with Tanzania that the maritime boundary would follow a parallel of latitude and a separate presidential proclamation was issued on February 28, 1979 and, as required, published in the United Nations publication on National Legislation on the Exclusive Economic Zone (EEZ), in 1986. This proclamation also settled the Somalia maritime border issue; which actually had been agreed during colonial days.
Kenya insists that the marine boundary is determined by a parallel line of latitude to the east, as per the standards set by the colonial powers, which were adopted in the marine borders between Kenya and Tanzania, Tanzania and Mozambique and Mozambique and South Africa.
On its part, Somalia says the boundary extends to the southeast as an extension of the land border. This would take a large swathe of what Kenya considers its EEZ.
This matter was revisited on April 7, 2009, when Foreign Affairs Minister Moses Wetang’ula and the Somalia Minister for National Planning and International Co-operation signed “Memorandum of Understanding between the Government of the Republic of Kenya and the Transitional Federal Government of the Somali Republic to grant to each other no-objection in respect of submissions on the Outer Limits of the Continental Shelf beyond 200 Nautical Miles to the Commission on the Limits of the Continental Shelf.”
This treaty recognised Kenya’s claims and under international law, according to experts, it is treated as a treaty. But this was later rejected by the Somalia parliament.
But the current row is about the oil resources at the bed of the ocean. Actually, the spat between Kenya and Somalia over maritime boundaries began when Kenya awarded offshore oil and gas exploration blocks to multinationals Total and Eni. It was this time that Somalia accused Kenya of illegally issuing these blocks and argued that these concessions lie in its waters.
Somalia also expressed its intention to take up the matter with the United Nations as four of the blocks awarded in the deep waters were invalid.
The problem with Somalia’s boundary line is that with Kenya locked on the Tanzanian side — and if Somalia gets its way at the ICJ — the country might potentially be land-locked and with no access to high seas without going through the Somalia waters.
Following the promulgation of a new Constitution, President Mwai Kibaki issued a new proclamation dated June 9, 2005 and which replaced President Daniel Moi’s 1979 proclamation on the maritime boundary between Kenya and Somalia.
Perhaps of concern is that Kenya is negotiating with a shaky regime in Somalia: “ The dispute has arisen whilst Somalia is a client state effectively controlled by third party states and multinational oil corporations and terrorists, (and Kenya) has duty to stop further dealings with Somalia until a government that represents its people is established to negotiate with Kenya in good faith and these dealings include withdrawal from the ongoing proceedings before the ICJ,” an affidavit that could help shift focus locally on the case says in part.
How the government of President Mohamed Abdullahi Farmajo handles the issue — and whether he may withdraw the case now set for September — will determine Kenya’s future relations with Somalia.