Oct 23, 2021

Mawazo Writing Africa

Writing about the main

Maritime row: Awaited ICJ verdict lifts lid on Kenya-Somalia mistrust

On Friday, the Foreign Affairs PS Macharia Kamau accused the court of being part of the ploy to undermine Nairobi’s territorial integrity and announced that Kenya had lifted the court’s compulsory jurisdiction because of its bias.

The pre-judgment storm came as ICJ President Joan Donoghue and her 13-member jury prepared to read the verdict of a case in which Somalia was suing Kenya over a maritime border in order to drag it along certain coordinates. If the ICJ ruled in Somalia’s favor, Kenya will certainly lose a significant part of its marine area and associated resources.

However, Nairobi says this is not a question of justice, but a doorway to foreign companies stealing of land and water.

“The court took jurisdiction where it had none by effectively ignoring Kenya’s 1965 reservation that excluded disputes like this from the court’s jurisdiction,” said Kamau said at a press conference, flanked by Attorney General Ken Ogeto, Vice Chief of Defense of Kenya, Lt. Gen. Francis Ogolla and Defense PS, Dr. Ibrahim Mohammed.

“It is important for every Kenyan to understand that threats to territorial integrity are no longer necessarily open and direct. The filing of a lawsuit against Kenya in the court and the taking of jurisdiction by the court where it had none are evidence of new tactics to use pseudo-judicial processes to undermine territorial integrity, “he argued.

Somalia did not respond immediately, but argued in its case that it was sued because Nairobi refused to negotiate an adequate maritime border and ensure that Kenya does not illegally tear down its own territory.

Nairobi places This decision by the then President of Somalia, Hassan Sheikh Mohamud, to sue the ICJ, is a continuation of the interference from outside parties. Somalia and Kenya have had a dispute over the territory in the past. In the early 1960s, a bandit war broke out in the northeast, known as the Shifta War. The then leader of Somalia, Siad Barre, did not send his troops directly into battle, but Nairobi believed at the time that he was armed the groups in an attempt to push for a united “Somali nation” comprising the northeastern province and region Ogaden in Ethiopia. The Shifta War ended with an agreement between Kenya and Somalia signed in Arusha, but it seems that the seeds of constant tension germinated.

“The first threat to Kenya’s territorial integrity was during Shifta -War 1967-1969 “, claimed Kamau.

” Then we skillfully and successfully demonstrated our determination and steadfastness in our duty to protect and protect our territorial integrity. We remain determined and steadfast in the same commitment. ”

Yesterday, Kenya showed that it will not accept the judgment of the court by saying that whatever the judges decide, the process is” flawed ” and that the court had “an obvious and inherent bias, but also its inappropriateness to resolve the present dispute.” Topic to be discussed under the UN Commission on the Law of the Sea (UNCLOS).

The signatories; The then Minister of Planning of Somalia, Abdulrahman Abdishakur Warsame, and the then Kenyan Foreign Minister, Moses Wetang’ula, brought the agreement into their respective parliaments. Kenya approved it. Somalia refused.

When Somalia sued, Kenya resisted the lawsuit, saying there was an agreed method of settling the dispute. The judges agreed to Nairobi but still admitted the case, ruling that the alternative method was not exclusive, despite saying the MoU was valid without parliamentary approval.

Nairobi argued the court was not responsible, which it also rejected the case and admitted it. In fact, in 1965, Kenya had warned the court that it had given the ICJ an overriding jurisdiction except in situations where there was an alternative dispute resolution, the dispute concerns a member of the Commonwealth, and the dispute can be settled by local law .

In international law, overriding jurisdiction is a principle that means that any state that has granted the court this type of acceptance has the right to sue other states and that it agrees to proceed To appear in court if sued. At the last oral hearing in March, Kenya declined to attend, accusing the court of bias.

Nairobi announced on September 24 that it had lifted the compulsory jurisdiction of the court, but the implications were unclear this would have had to be in a case filed five years ago. The ICJ is an organ of the UN, but is not responsible for all disputes between UN member states. It may occasionally provide “advisory opinions” from non-state actors, but it only handles disputes between states that have to voluntarily consent to its jurisdiction.

Some countries have in the past withdrawn their declarations on compulsory jurisdiction, but usually not after the case has been tried. The US, for example, withdrew its declaration in 1985 after the ICJ recognized jurisdiction over a dispute with Nicaragua. Washington argued at the time that the matter was political. In early 1976 Greece sued Turkey over a continental shelf dispute, which refused to attend meetings because it argued that it did not recognize the jurisdiction of the ICJ. In fact, the ICJ has never considered Greece’s claims after Turkey’s refusal to appear in court.

In Nairobi, officials say a flawed trial will weaken cooperation. “As a sovereign nation, Kenya may no longer be subjected to an international court or tribunal without its express consent,” said the PS for Foreign Affairs.

Judgments of the ICJ are usually binding between the states in this case have no appeal.

If Somalia wins, it could be President Farmaajo’s political victory, given that the planned elections, which should be concluded on Sunday, have merely been postponed. It is unclear when the presidential elections will be held as the legislature has not yet finalized the election of the bicameral federal parliament.

Farmaajo had declined Kenya’s requests to withdraw the case for discussion and promised to hold such discussions should only happen after the judgment. But even his victory can be costly: he will have to involve outside parties to draw the line, as the court orders put it.

It will also involve Kenya’s involvement in what now seems remote. The PS warned that the consequences of the judgment will affect the region economically, politically and in terms of security at a time when it is being shaken by terrorism, instability and conflict.