Somalia sidestepped Kenya’s latest push to have the maritime boundary case withdrawn or deferred to allow an African Union-led mechanism for an alternative solution.
The details emerged even as controversial Ugandan lawyer David Matsanga wrote to the International Court of Justice with stinging allegations about the conduct of the court’s president Abdulqawi Ahmed Yusuf.
It all played out in the final week of August after Kenyan diplomats wrote to the AU, seeking the hand of the Peace and Security Council to convince Somalia. But Somalia’s Foreign Affairs and International Cooperation minister Ahmed Isse Awad rejected the request and declined Somalia’s attendance of a meeting initially scheduled for August 22.
“Somalia pledged to comply with the court’s judgement, whatever the outcome,” Mr Awad wrote to AU Commission chairman Moussa Faki on August 21, in a Note Verbale (diplomatic letter) seen by the Nation.
He was referring to a case in which Mogadishu sued Nairobi at the ICJ seeking to change the course of the maritime boundary in the Indian Ocean.
“Therefore, the government of Somalia regrets to inform the Commission that it would not be appropriate for it to accept the Commission’s invitation to attend the Peace and Security Council meeting to be held on August 22, 2019 to brief the PSC on the maritime dispute … as the matter is currently pending before the ICJ.”
The content of Kenya’s bid at the PSC, AU’s principal decision-making organ on conflict resolution, had always been avoided by Nairobi, with diplomats at the Foreign ministry refusing to confirm the submission made on August 19.
Yet Somalia’s response to it now confirms Nairobi’s continued bid to have the case, which is due for public hearing next week, be removed or delayed at the ICJ.
Nairobi, the envoys had said, was concerned that the continual case at the International Court of Justice “has the potential to further complicate the already volatile peace and security situation in the Horn of Africa.”
Cautioning that the “rigid court procedure” will be blind to sensitive political and cultural issues, Kenya advised that the case could distract countries from cooperating on key security issues, as well as potentially reopening boundary debates between countries on the Eastern Africa coast.
This disagreement reflects the latest in rising tensions between Kenya and Somalia ahead of the legal showdown at The Hague over who owns a prime piece of the Indian Ocean after years of verbal confrontations and diplomatic arm twisting.
On Monday, Ugandan legal activist David Matsanga claimed ICJ’s president Abdulqawi Ahmed Yusuf, a Somali national, be removed from office for allegedly commenting about the case in separate public forums.
“As Pan African Forum, we view these statements as roadside shows that makes the President of the ICJ not fit to preside over the matter between Kenya and Somalia,” Dr Matsanga, famed for criticising the International Criminal Court, wrote for the Pan-African Forum, a self-declared forum for Africans to “come together and make a difference.”
In being Somali, Dr Matsanga argues, Justice Yusuf’s alleged relations with Somali President Mohamed Farmajo, including coming from the same Marehan clan as well as having members of his family work for the government makes him “biased” and “impartial.”
“This breeds corruption in court and we have evidence to put before the panel as to who in Somalia is bankrolling the judge,” he said.
At the ICJ, all the judges of the court, including ad-hoc judges, constitute the Bench of the Court in a case, meaning even the President could sit on the Kenyan case. Usually, judges are not dismissed unless their colleagues feel they have failed to deliver their duties. In addition, the President of the Court may decide to remove certain judges from the court for some “special reason,” meaning Judge Yusuf could still determine the actual bench on the Kenyan case.
Yet in filing complaints against judges, only state parties or organs of the UN are often allowed to submit. Matsanga argued his organisation represents “public interest” and that he should be heard.
The ICJ Registry had not responded to our inquiry on the Judge’s alleged bias. But a note on the website indicated the judge, who joined the Court in February 2009 is an experienced and qualified judge.
Previously as the Vice-President of the Court, Yusuf wrote a declaration after the Court rejected Kenya’s objection to the Court’s jurisdiction, arguing the Memorandum of Understanding Kenya had signed with Somalia had not been the original contribution of both countries.
“No government can afford today to put its signature to a bilateral legal instrument which it has neither carefully negotiated nor to which it has hardly contributed,” he wrote, referring to a 2009 MoU between Kenya and Somalia, which had allowed for the UN Commission on the Law of the Sea (UNCLOS).
The MoU had been drafted by Norwegian diplomat Hans Wilhelm Longva as part of his country’s “technical assistance” to African countries. Judge Yusuf argued Kenya and Somalia should have used own legal teams to draft a document each had contributed to.
While Kenya’s then Foreign Minister Moses Wetang’ula and then Somalia’s Planning Minister Abdirahman Abdishakur signed on the agreement, Somali parliament rejected it.
The ICJ would rule that the MoU was a valid bilateral agreement, but added that it did not prevent the Court from hearing the case.
Ahead of the case next week, some analysts say that the environment is already poisoned in the wake of the tit for tat games that the two countries have been engaging in.
“Kenya feels that this is a slap from the people they have helped over the years and Somalia thinks we are patronising them regardless of the amount of assistance we have provided,” said Mr Herman Manyora, a lecturer of Linguistics at the University of Nairobi.
“It would not be in the interest of any party to do anything that will affect the court negatively,” he advised.
Kenya has already declared that it will do whatever it takes, including deploying the military in order to protect its sovereignty. A motion is currently before parliament seeking to compel the government to deploy the military in the disputed waters if a solution that favours Kenyans is not found.
Somalia on the other hand has time and again bashed Kenya for infringing on its territory. Last week Somali MP Mohamed Omar Talha told the Voice of America that his country is also prepared to send its troops to defend any act of aggression by Kenya over the disputed ocean area. Somalia has no navy.
"If they send their troops to Somalia, we, the parliament of Somalia, will also bring a motion that will counter such a threat and give permission to our soldiers to defend our people and territory,” said Mr Talha.
According to a timetable of the case released by the ICJ, each country will be given a total of seven and a half hours next week to argue their case. Somalia will go first on Monday and Thursday while Kenya will argue her case on Wednesday and Friday.