The International Court of Justice is expected to deliver its verdict on the Kenya-Somalia maritime border dispute by September 19, following a public hearing a week earlier.
But whether that will close the chapter on an issue that has recently put the two neighbouring states at loggerheads is uncertain, especially since there are political connotations to it.
Gathering in Nairobi this week, legal and foreign policy experts discussing maritime boundary conflicts on the continent said legal processes often do not end conflicts, suggesting Nairobi and Mogadishu will have to eventually discuss the issue after all.
Somalia sued Kenya at the International Court of Justice in August 2014, seeking to redraw the sea boundary to a diagonal flow, an extension of the land border south of Kiunga, and objecting to Kenya’s current view where the border flows directly eastwards.
If the ICJ agrees with Mogadishu’s view, the change in the boundary could affect about 100,000 square kilometres of sea, limiting Kenya’s access to the waters said to contain valuable hydrocarbons.
At the conference organised by the Horn International Institute for Strategic studies, a policy research think-tank in Nairobi, specialists poring over recent cases of maritime disputes observed that courts in the past have failed to read the political mood and other factors fuelling the conflicts.
“These are terrible ways to do business. It is a win-lose situation,” observed Makumi Mwagiru, Adjunct Professor of Diplomacy at Strathmore University.
In a paper presented to the audience on Thursday, Professor Mwagiru analysed the difference between disputes and conflicts, saying what is happening between Somalia and Kenya is a conflict that cannot be solved by the courts.
DISPUTE VS CONFLICT
In diplomatic parlance, a dispute is often a short-term disagreement on, say, Kenya’s cows crossing into Somalia to graze, without permission or Kenya’s sweets confiscated in Tanzania for not showing certificates of origin. A conflict on the other hand may be long-term, and could contain several non-negotiable issues such as whether to change the flow of the boundary or sharing resources in a contested area.
“The law settles disputes. It does not resolve conflicts,” he told the audience. Because disputes follow a fixated process, such as orders of the court and lack of appeal in the case of ICJ, it means that a contest like that of Somalia and Kenya may be decided regardless of the forces behind it.
In fact, previous cases like that of Nigeria and Cameroon, courts decided based on previous negotiations between the two countries. Bashir Shettima, a former Director of the National Boundary Commission of Nigeria said the ICJ delimited the boundary by following most of what the two countries’ officials had reached, but not ratified.
“It took a lot of time, mostly because the trust between the two countries was at its lowest,” Mr Shettima said.
Yet, for Somalia and Kenya, there are accusations of third parties such as oil companies and major world powers fuelling the conflict. In addition, issues of territorial integrity and resources available in the contested areas carry with them deep political connotations that could kill careers.
“This case is giving President (Mohammed) Farmaajo the wind he needs to push the ship of re-election,” argued Prof Peter Kagwanja, CEO of the Africa Policy Institute, referring to Somalia’s upcoming elections in 2021.
“If he chooses otherwise, he is dead and buried (politically). So he has to appease the political stakeholders by ensuring it goes on.”
WHAT’S AT STAKE?
So what is at stake? The Somali government has insisted on the court decision, in spite of overtures from Nairobi to have it delayed, for talks.
Foreign Affairs CS Monica Juma told the media earlier in the year that “not even an inch” of Kenyan territory will be ceded and vehemently protested oil stock marketing of Somalia in the contested area.
In legal battles, the outcome may be uncertain, said Mr Justice Srem Sai, a lecturer of law at the Ghana Institute of Public Management and Administration.
“(International) law in most cases is not predictable. So we need to use all the (alternative) means to resolve conflicts. There should be more than judicial ways to resolve these issues.”
In the contest lies issues of national interest, observed Dr Kemoli Sagala, a consultant on security, governance and strategy. And the judges at the international court, he said, do not have a history of giving verdicts that offend their appointing states.