Kenya’s government has come in for sharp criticism over its last-minute decision to boycott an international court hearing in the Netherlands on its maritime boundary dispute with Somalia.
The two nations agreed to resolve the dispute at the International Court of Justice (ICJ) in The Hague, with the outcome set to determine how an 160,000 square kilometre area with significant oil and gas potential will be demarcated.
ICJ president Joan Donoghue said: “The court regrets the decision of Kenya not to participate in the oral proceedings” that began, as originally planned, on 15 March.
However, despite Kenya’s absence, the ICJ will still be able to make a ruling on the maritime boundary.
Somalia's maritime boundary claim is based on an equidistance line running south-east from its coast, while Nairobi wants a line drawn from east to west along a line of latitude.
'Inconsistent with respect for rule of law'
Somalia's Deputy Prime Minister Mahdi Mohammed Gulaid told the hearing: “We are deeply concerned that Kenya has decided not to appear [at the ICJ] …this is inconsistent with Kenya’s obligations …and as a party subject to the jurisdiction of the court in these proceedings.”
He added that Kenya’s move “is also inconsistent with respect for the rule of law".
Gulaid said the ICJ “has been generous in accommodating” Kenyan requests to postpone the hearings for 18 months, allowing Nairobi to submit 4000 pages of new documents on the eve of the hearings, and permitting Kenya to submit a 315-page supplemental legal pleading 10 days before the start of hearings.
“Kenya has been afforded due process in abundance,” he told the court.
The ICJ received a letter on 12 March from Kenya’s legal representative, outlining Nairobi’s reasons for quitting the hearings, while at the same time asking to address the court orally before the hearings started and submitting “for consideration” a 175-page “position paper”.
Somalia objected to these two Kenyan requests and the ICJ decided not to grant either, informing both sides by letter on 15 March.
Donoghue did not state the reasons behind Kenya’s boycott of the hearings.
However, Bloomberg cited Kenya’s Solicitor General Ken Ogeto as suggesting his country would not get “justice” at the ICJ and that the court had refused its request to further delay the hearings.
Reported objection to Somali judge
Foreign Affairs Principal Secretary Macharia Kamau called for the dispute to be resolved by the African Union because Nairobi favours “bilateral negotiations and continental negotiations in the context of facilitation by the AU".
An anonymous Kenya government official, reported the BBC, also objected to the presence of a Somali judge on the ICJ panel.
Kenya's boycott comes amid rising tensions between Nairobi and Mogadishu, according to Selam Tadesse Demissie, research officer at South Africa's Institute for Security Studies.
In December 2020, Somalia accused Kenya of interfering in its internal affairs and severed diplomatic ties.
A Djibouti-led fact-finding mission failed to substantiate Somalia's claims.
However, Mogadishu rejected the findings, claiming Kenya influenced Djibouti and that the conclusions were not impartial.
This led to tension between Somalia and Djibouti, explained Demissie, with Mogadishu threatening to quit the Intergovernmental Authority on Development, an East Africa body that promotes peace in the region.
Mogadishu also claims that Nairobi, in its battle against Islamist insurgents from Al Shabaab, has undue influence over Ahmed Madobe, president of Jubbaland state in southern Somalia which borders Kenya.
In addition, Demissie highlighted how shifting alliances in East Africa over the last three years have strained inter-country relationships.
"Ethiopia’s increased affiliation to Somalia’s central government (rather than its states) and Eritrea’s resumption of co-operation with Somalia after more than a decade of estranged relations, have boosted Somalia’s central government."
Meanwhile, Kenya’s de facto recognition three months ago of Somaliland as an independent nation also angered Mogadishu, which is trying to keep its constituent states together.
There are suggestions, said Demissie, that Kenya may open a consulate in Somaliland.
Adding to regional tensions are reports that Eritrea is training Somalian troops, continued fighting in Ethiopia's Tigray province, a border dispute between Ethiopia and Sudan, plus friction between Addis Ababa and the governments of Egypt and Sudan over the Grand Ethiopian Renaissance Dam in the upper reaches of the Blue Nile.
Furthermore, Somalia missed a deadline to hold an election last month, when President Mohamed Abdullahi Mohamed was due to step down, creating a constitutional crisis.
"Left unattended, tensions between Somalia and Kenya could significantly worsen the already dire humanitarian and security situation in the Horn of Africa," said Demissie.
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