Documents and maps filed by Kenya before the ICJ as new evidence show that the equidistant line suggested by Somalia digs into Kenya’s territory.
The documents highlight that fishing is a main source of income for most coastal communities, contributing 80 per cent of their household income.
According to Kenya, the line suggested by Somalia locks in Kenya’s waters, including the continental shelf, which would limit shipping activities.
At the same time, the Coast would also not have recreational fishing, affecting tourism, a vital sector not only for the region but the country at large.
According to the documents, the main gamefish species include marlin, sailfish, swordfish, tuna, kingfish, wahoo, and giant trevally, among others. Evidence of about 18 species of sharks tagged by recreational anglers between 1987 and 2016.
“Game fishing methods and techniques vary according to the time of the day, area fished, the species targeted, angler preferences, and the resources available such as the size of the boat. Some of the methods practiced include trolling, bottom fishing and casting. The Kenyan marine recreational fishery consists of both sport fishing and charter boats,” the documents read.
Kenya also argues that it will be drastic for the court to rule in favour of Somalia, saying it will deny Lamu residents their livelihoods, as fishing is the basic source of livelihood for at least 75 per cent of the residents.
“If the disputed waters were awarded to Somalia, the restricted access to historic fishing grounds and increased insecurity would be the final nail in the coffin for commercial fishing, with many large boats likely to depart fearing hijackings for ransom as the current case across the border,” reads the document.
“During one site visit, a commercial fishing boat with 8 Moroccans was taken by a militia controlling parts of Somalia, with one sailor and the boat released after a one-week ordeal and a ransom of 1.2 million shillings while the rest of the crewmen remained in Somalia.”
Kenya argues that Somalia deliberately left out critical sections of their Memorandum of Understanding in order to approach the court. It argues Mogadishu has deceived the court that it never agreed to the idea of negotiating maritime boundary out of court and had recognised Kenya’s proposal for delimiting the boundary alongside the parallel of latitude.
Somalia argues that talks with Kenya had collapsed and therefore there was nothing to discuss. However, Kenya asserts that negotiations were ongoing and it had even approached Africa Union (AU) to mediate the issue but Somalia proceeded to the ICJ.
Kenya has also documented Somalia’s activities along the contested area.
Documents show a Somali minister made a presentation at an oil auction in London in which the Horn of Africa nation auctioned contested four oil blocks in United Kingdom, with the agreement due to be implemented in January 2020.
Somalia had disputed that the auction of oil blocks 230, 231, 232 and 233 ever took place, but its 21 paged document details the presentation by petroleum and mineral resources minister Abdirashid Mohamed Ahmed in London at Claridges Hotel where Somalia put up the four oil blocks in the Indian Ocean for sale.
Although Somalia and Kenya had for decades had a mutual agreement on the borderline, Somalia authorities lodged the dispute at the ICJ just a year after Soma Oil Limited, which was chaired by former British Conservative Party Leader Michael Howard, inked its deal with Somalia on August 13, 2013.
Somalia’s current Prime Minister Hassan Ali Khaire is former Soma Oil executive director.
Somalia took a turnaround on its 35-year agreement with Kenya to file a claim before The Hague-based court.
In 1982, Somalia, through lawyer Justice Abdulqawi Ahmed Yusuf, who is current president of ICJ, supported Kenya’s equitable sharing idea. This presentation was made in a UN conference on the law of the sea.
Justice Ahmed, a Somali national, now presides over the court in which his motherland is seeking to extend its claim into the sea.
“Such delimitation should be effected in accordance with equitable principles,” he said in a conference held in Montego Bay, Jamaica, on December 10, 1982.
“Somalia is not offering, nor does it have any plans to offer any blocks in the disputed maritime area until the parties’ maritime boundary is decided by the ICJ,” Somalia replied to Kenya’s protest that it had sold the blocks.
The dispute between Kenya and Somalia dates back to independence. The Horn of Africa had claimed parts of formerly the Northern Frontier districts of Kenya (North Eastern Province).
The regions that Somalia claims belong to it include Northern Kenya, Ogaden in Ethiopia, Djibouti and Somaliland as well as it present territory.
The disputes after independence on land territory were resolved through amicable agreements mediated by Congo and Zambia under the Organisation of African Unity (OAU).
It was after these mediations that Somalia opened its boundaries and Kenya established diplomatic relations with it.
While signing the Memorandum of Understanding on April 7, 2009 in Nairobi, Kenya was represented by then Minister for Foreign Affairs, Moses Wetang’ula, and Somalia’s Minister for National Planning and International Co-operation Abdirahman Warsame.
For the last 35 years, the two countries respected a maritime boundary running eastward as contained in the 1979 Presidential Proclamation until 2014 when Somalia took Kenya to court.
Prior to the matter being submitted to the ICJ, both countries were on the verge of delimiting their maritime boundaries with a view of undertaking explorations within the waters to harness the resources available.
The two states had agreed they would make separate submissions to the Commission on the Limits of Continental Shelf (CLCLS).
During negotiations on the development of the Law of the Sea in 1974, Africa as a united region sent its delegation to the UN for negotiations. The team was led by two Kenyans, Prof Frank Njenga, who was then Foreign Affairs PS, and a Mr Adede.
At the meeting, countries were allowed to proclaim their sea boundary using either an equitable sharing formula or the equidistance sharing formula that uses geographical points of a nation’s territory.
Kenya and Somalia advocated for the use of the equitable sharing formula that allows coastal states equal access to the water resources.
While Kenya recognises international courts for settlement of disputes, it believes that just like in the past, the two parties have not exhausted all the dispute settlement mechanisms in place, including using regional bodies such as the AU.
Kenya remains skeptical that the resolutions arrived at will be in the best interest of Kenya. At independence, all African countries except Somalia and Morocco agreed to retain their colonial boundaries as had been demarcated.