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Somalia v. Kenya

“It is like your enemy slapping you in the face and you can’t do anything to respond”

Abdi Barud
Saturday, November 5, 2016

ICJ concludes hearing on Kenya Somalia Maritime row

Few months ago, officials from the Foreign Ministry asked if I could be a member of the delegation to observe the Maritime case Kenya V Somalia. I said yes without any hesitation, how could I not? It is a great opportunity, but at the back of mind I thought it would never happen. After all, there are the usual government travelers - a group of people who have no known public roles but, ironically, travel on behalf of the government and I thought, as usual, they will be the observers for this case.

I realised how wrong I was when I finally received the confirmation to attend the hearing on 19th to 23rd September 2016. I already knew about the case, through advocacy, lobbying and diaspora outreach with the Somalia Government at the early stages of the case.

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On 18th September, we arrived in Hague. We were staying in a convenient, but unimpressive, small hotel at heart of Hague. When we arrived, someone self-appointed gave us detailed instructions on how and what to do in the hotel, including how to use keycards, lift (at the end, I was pleased we were not told how to flush the toilet!).

On the morning of 19th September, I was one of the last people to arrive for the first proper briefing for the delegation. It was delivered by a softly spoken, but well dressed and elegant gentlemen. I later learned he is a highly respected expert in the maritime field and an instrumental figure to the case. He provided a detailed and technical briefing to the team.

We walked 5 minutes or so to that great and famous building - Hague International Court of Justice.  From a distance, I could see members of the Somali community already queuing-up. There were some familiar media faces, such as Dahir Allasow, Abukar Awale and Salah Dheere, to name a few.  Interestingly, I saw no Kenyans, and exclusively everyone who is there, so far, is Somali. This to me was further indicative of the sheer determination of the Somali people to protect their nation and its interests.  

As we walked towards the Court, I quickly chatted with a few people about their feelings and views towards the case. Surprisingly, they are all cynical about the possibility of success. They are cynical about the Government’s motives and questioned whether there is a behind-scene-deal already between Kenya and Somalia, and whether this was a just sideshow to mislead the public. Although, they are very polite, they are cynical about me and other members of the delegation too. One of them gently reminded me that my travel expenses were paid by the government and hence, he questioned my independence. 

I knew their thoughts were illogical and I could have given them many reasons why they were wrong, but one of the things that I learned a long time ago is that cynicism is a deeply-seated feeling and it is there for a reason. I don’t blame the Somali people for their cynicism, who would? After what they went through year after year, betrayal after betrayal, cheating after cheating.

When we entered the Court, we were directed to the Somali room where we met with the Somali Legal team, including Mona, for the first time. Over the last couple years, I’ve spoken and communicated with Mona a number of times, but this is our first face-to-face meeting. I told her who I was, but from the way she responded I don’t think she remembered me, or perhaps today she doesn’t want to remember or care about anything but the case.

The key moment of the morning came when the lead lawyer told us what will happen today. He told us that Kenya will present its arguments and argue the Court has no jurisdiction in the case.  He reassured us that Somalia is well prepared and it will present its side of the argument tomorrow. But today, he warned you will hear unpleasant things said about your country and you must just take everything said with a pinch of salt, and he added, “it is like your enemy slapping you in the face and you can’t do anything to respond”

The first legal briefing was well received; and I was relieved that no one in the team was daft enough to tell the Legal team what to do, although later days some pretended to be experts in maritime legal affairs.

We took our allocated seats on the right side of the Court room. Formalities and introductory remarks were made in French by the Court’s president. I was so proud to see Judge Abdulqawi, the vice-president sitting next to the president. I read about him and know of him but I’m yet to meet him. I’m sure he is proud of his achievements too.

The Kenya Attorney General is the first speaker for Kenya. He is a very articulate and confident speaker. He spoke of how Kenya has been a good, helpful friend and neighbour to Somalia. He listed all things they’ve done for Somalia over the years.  He spoke about regional challenges, including terrorism, conflicts and how Somalia has been a burden to Kenya. The fact that the first presentation from Kenya Team is more about a political speech than it is a legal presentation speaks volumes about how Kenya feels about its arguments. Generally speaking, the Attorney General made very good points indeed, but irrelevant to the merits of the case. From my years working in Child Protection, I’ve learned if lawyers don’t focus on the specific substances of the case, but focus on general issues they are worrying about their legal argument.

In short, Kenya’s argument rests on 2 main inter-related points; first and foremost, the MOU (Memorandum of Understanding) which was signed in April 2009 by Somalia and Kenya, with the technical assistance of Norway. Secondly, it accuses Somalia of being a disingenuous, deceptive and ungrateful neighbour who rushed to the International Court without allowing the bilateral negotiations a fair chance to succeed.

On the MOU, Kenya argues that one of its objectives was to reach an agreement to settle the maritime boundary dispute through negotiation, hence, the Court shouldn’t get involved in this dispute and should allow the parties to negotiate. Kenya also alleges that Somalia was not serious about the discussions which took place in 2013 and 2014 between respective foreign ministries. They argued only “two technical level meetings” took place and more could have been done.  Kenya claims the fact that the Court application was made within 48 hours after Kenya failed to attend the final agreed meeting in Mogadishu, is evidence of Somalia acting in a bad faith, which implies that the Somalia team were preparing the legal case whilst the negotiation was still on-going.

Somalia on the other hand, argues that Kenya’s interpretation of the MOU is both wrong and inconsistent. It argues that the sole purpose of the MOU was to “grant other each no objection in respect of submission on the Outer Limits of the Continental Shelf beyond 200 NM” In other words, the MOU was nothing to do with the maritime dispute but intended for something entirely different. Somalia’s legal team presented documentation to the Court which showed that Kenya’s understanding and interpretation of the MOU before this case commenced was the same as Somalia’s. Both Kenya and Somalia, and Norway which drafted the MOU, agreed the purpose of the MOU was not an agreement about the maritime boundary dispute. 

Apart from the conflicted interpretation of the MOU, the second matter that dominates the proceedings is that whether the negotiations between the countries held in 2013 and 2014 were “substantive” as Somalia believes, or preliminary as Kenya argues.  The problem for Kenya is credible evidence, including a Joint Report signed by both parties, directly contradicts and undermines its position. Also, an inconvenient truth for Kenya was that it had authorised unilateral activities in the disputed areas, ironically, while acknowledging at the same time it is a disputed area.

The outcome of the case is anybody’s guess. The careful deliberation of the Court will take place and could last months. However, there is no doubt Somalia presented a more solid and stronger case than Kenya. What struck me most about this Court Case was not only the brilliance of our legal team, but the sheer determination of the Somali people to work together in their hour of need. No division, no bitterness and no self-destructiveness, just absolute unity to protect their rights and national interests. I’m proud.

Abdi Barud
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