The search for an out-of-court solution for the Kenya-Somalia dispute over their common border has hit a snag, paving the way for a legal battle at the International Court of Justice (ICJ).
Nairobi is putting together final touches on papers for the case, which will begin in September in The Hague. In 2016, Kenya failed to convince the ICJ that it was not within its jurisdiction to determine the matter.
Some of the submissions Kenya will make in September include the results of an expensive seismic study to prove that the ocean floor of the disputed area includes minerals eroded from rivers in Kenya scattered over 300 nautical miles from the shore.
Chinese scientists, in collaboration with local geologists, are compiling data from the study in Beijing. Officials from the State Law Office said the process is complicated and requires expertise not available in Kenya.
Nairobi has all along insisted that the boundary is determined by a parallel line to the east set by colonial powers.
Somalia, however, says the boundary extends to the southeast as an extension of its land border.
If Mogadishu wins the case, a large swathe of Kenya’s land will fall in the hands of Somalia.
For its part, Kenya insists that the land is within its continental shelf as defined by the United Nations Convention on the Law of the Sea (UNCLOS).
Article 76 of the UNCLOS treaty signed in 1982 says: “The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise.”
Without a political solution in sight, it appears that Nairobi has resorted to piling pressure on Mogadishu even as it prepares for a legal battle. On Thursday, officials at the Kenya Defence Forces (KDF) declined to comment on whether the surprise retreat of troops to the border is part of the strategy. On Tuesday, the Nation exclusively reported that Kenyan troops had abandoned their bases in Bursar, Bardera, El Adde, Taraka and Fafadun.
Two weeks ago, Somalia’s President Mohamed Farmajo was in Nairobi in an effort to find a diplomatic solution for the crisis, but his meeting with President Uhuru Kenyatta did not yield any results. In fact, State House remained mum over the results of the meeting while Mr Farmajo’s office issued a statement.
“The agenda of the talks included a diplomatic solution and the president has agreed to restore and strengthen ties and co-operation between the two countries based on mutual respect and co-operation in the areas of security, economy, human trafficking and trade,” said Mr Farmaajo.
As a solution remains elusive, Nairobi has resorted to doing all it can to force Mogadishu to withdraw its interest in the 142,400-square-kilometre area of ocean that has rich oil deposits.
This turn of events is informed by the realisation that Somalia had planned to sell off oil blocks in the area by September.
This will be just about the same time when the case starts, which could create more legal and political hurdles.
A slide show for a presentation made in London by American seismic company Spectrum Geo on behalf of Somalia shows that the results of the auction will be made public on September 19.
Under the plan, Somalia has given firms willing to bid up to July 4 to ask any questions regarding their qualification.
The companies will then have up to July 11 to enter bids and the government will on August 29 “qualify operators and non-operators”.
A study of documents dating back four decades shows the genesis of the matter was in 1979, when President Daniel arap Moi wrote to the UN declaring ownership of the ocean space in dispute.
Thirty years later in 2005, Mr Moi’s successor Mwai Kibaki also made a similar pronouncement. Then in 2009 both countries signed a deal that the border would run east along the line of latitude. The agreement was registered at the UN secretariat in June 2009.
On October 10, Somalia’s Prime Minister Omar Sharmarke wrote the UN saying the Transitional Federal Parliament had rejected the agreement and requested that it be treated “as non-actionable”.
Kenya, however, argues that the deal is an international treaty that is legally binding on the parties.