There is room for tweaking the approach to the Somalia versus Kenya maritime boundary dispute. The tools for doing this are readily within our reach. First, Kenya has demonstrated the unrivalled organic art of building bridges of peace across domestic and international divides, even where twigs were deemed impossible to stand.
Domestically, the bridges have countered divisive elections. Internationally, Kenya has participated in bridging peace in Somalia, Sudan, Burundi, to name but a few. A dispute with her neighbour over a colonial boundary should therefore not present any insurmountable challenge. While the founding fathers of post-colonial Africa adopted a resolution to maintain the colonial boundaries, nothing stops the building of bridges of shared prosperity between neighbours.
There is a need for Kenya and Somalia to seriously consider resolving their maritime boundary dispute using a different forum aside from the International Court of Justice, an alternative that presents a win-win outcome for both countries. A critical reason for this is because an ICJ judgement in this matter has potential multiple adverse implications to both countries.
Devastating lessons can be picked from adversarial dispute resolution processes and implementation of ICJ boundary decisions in Africa. Notably, Kenya hosts many businesspeople, relatives of Kenyans, refugees and asylum seekers who are Somali nationals. With the ICJ case still ongoing, the two countries have already had several diplomatic tiffs. Additionally, it remains unclear whether Kenya’s 14-day ultimatum issued on March 24 to the United Nations High Commissioner for Refugees (to close Daadab and Kakuma refugee camps) is a teething reflection of the adversarial process that was commenced. The winner takes it all outcome of the ICJ adversarial process could potentially result in a perpetual state of conflict between the two countries. Where does the system leave these civilians? Kenya’s scepticism on dispute resolution through the ICJ is therefore not unfounded.
In the case of Cameroon v. Nigeria, by itsj issued on 10th October 2002, the ICJ gave ownership of the disputed oil-rich Bakassi peninsula to Cameroon. This decision has had significant adverse geo-political, socio-economic and security implications against Nigeria and its citizens, especially those that had directly invested in the area. The challenges include border raids, high cost of the demarcation exercise and implementation challenges arising from limited goodwill by the respective governments. UN involvement as a third party proved insufficient in preventing or mediating disagreements in the course of implementing the ICJ decision.
A key resource that both countries are chasing is oil. However, neither Kenya nor Somalia should be overly excited about oil exploration. How sustainable is oil discovery in the present day under the mounting climate change calls for a shift towards renewable energy? There is need for both countries to see beyond the blinding third party-induced race for oil. Needless to say, it is for the same reason that some of the said third parties are eager to dump their old technology to the disputants, in the guise of ‘investment’. The disputed area has immense blue economy potential for both Kenya and Somalia beyond oil, especially if jointly explored by the two countries. This resource abundance has the potential of becoming a curse if not well managed, as manifest in the present dispute between the two countries.
To that end, there are several mutually beneficial options that Kenya and Somalia can jointly explore in relation to the current maritime dispute, towards shared prosperity between the countries. One option is that Kenya and Somalia can enter into a bilateral agreement for joint management of the disputed area. This approach has been adopted by Seychelles and Mauritius. Another alternative is mediation through the African Union or the Intergovernmental Authority on Development.
These proposals are not unreasonable. Kenya’s achievements have been shaped by her hard work and deliberate efforts to achieve and maintain peace, stability and shared prosperity within and beyond her borders. Building bridges is therefore part of Kenya’s DNA and can be extended to the Indian Ocean, on the present maritime boundary dispute. There is, after all, room for tweaking the approach to the Somalia versus Kenya maritime boundary dispute.
Njoki Mboce is an advocate of the High Court of Kenya, mediator and policy advisor