Somalia and Kenya are both members of the African Union and share land borders but they are fighting it out in a European court. Is this still the way to go for an Africa that seeks to achieve AGENDA 2063 goals?

Lucas Ledwaba

Somalia and Kenya are set to take fight it out over maritime boundaries at the International Court of Justice (ICJ) in The Hauge in a case that once against raises questions about Africa’s ability to resolve its own problems without the intervention of Europe.

The ICJ, the principal judicial organ of the United Nations announced that public hearings in the case concerning Maritime Delimitation in the Indian Ocean, Somalia v Kenya, will open at 3 pm on Monday 15 March 2021 at the Peace Palace in The Hague, the seat of the Court.

The court said in a release that in view of the current COVID-19 pandemic, the hearings will be held in hybrid format. It also said some members of the Court will attend the oral proceedings in person in the Great Hall of Justice while others will participate remotely by video link.

In 2017 the AU called for the mass withdrawal of member states from the International Criminal Court of Justice (ICC) ​ accusing it of undermining their sovereignty and unfairly targeting Africans. It also called for the court to be reformed.

The ICC investigates and tries individuals charged with genocide, war crimes, crimes against humanity and the crime of aggression. The ICJ on the other hand, resolves disputes between countries.

The AU’s calls for mass withdrawal from the ICC raised further debate on whether the continent should not seek to resolve its own disputes without western involvement.

The ICC recently found Dominic Ongwen “guilty beyond reasonable doubt of an overwhelming majority of the charges brought by the Prosecution of war crimes and crimes against humanity at the time he was a senior leader of the so-called Lord’s Resistance Army (‘LRA’) in Uganda.”

The case between the two neighbours, Somalia and Kenya is likely to fuel the debate further. It dates to August 2014 when the Federal Republic of Somalia instituted proceedings against the Republic of Kenya before the ICJ with regards to “a dispute concerning maritime delimitation in the Indian Ocean.”

The ICJ said in a statement that in its application Somalia contends that both states “disagree about the location of the maritime boundary in the area where their maritime entitlements overlap”, and asserts that “[d]iplomatic negotiations, in which their respective views have been fully exchanged, have failed to resolve this disagreement.”

Somalia requests the ICJ “to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 [nautical miles]”.

Somali further asks the ICJ “to determine the precise geographical co-ordinates of the single maritime boundary in the Indian Ocean.”

Somalia argues that the maritime boundary between the two countries in the territorial sea, exclusive economic zone (EEZ) and continental shelf should be established in accordance with guidelines of the United Nations Convention on the Law of the Sea (UNCLOS).

The ICJ is the principal judicial organ of the United Nations which both Somalia and Kenya are member states.

 However, it should be noted that Somalia and Kenya share land and maritime borders in the horn of Africa. They are both founding members of the Organisation of African Unity (OAU) in 1963 and are still members of its predecessor the African Union (AU).

The two countries are both signatories to the AU’s AGENDA 2063 which is noted by the organisation to be “Africa’s blueprint and master plan for transforming Africa into the global powerhouse of the future.”

The AU says AGENDA 2063 “is the continent’s strategic framework that aims to deliver on its goal for inclusive and sustainable development and is a concrete manifestation of the pan-African drive for unity, self-determination, freedom, progress and collective prosperity pursued under Pan-Africanism and African Renaissance.”

If the AU truly wishes to achieve this, should the continent still be running across the seas to seek solutions to disputes like this one involving neighbours?

Is this perhaps a sign that Africans or Somalia in particular, despite the AU having several mechanisms for peaceful dispute resolution has no faith in its own mother body’s ability to settle such matters between neighbours?

At the drafting of the AGENDA 2063 in May 2013, the AU the continent’s political leadership acknowledged past achievements and challenges and rededicated itself to the Pan African vision of “an integrated, prosperous and peaceful Africa, driven by its own citizens and representing a dynamic force in the international arena.”

Clearly if Africa seriously wants to free itself from the control and domination by Europe, whether real or imagined, it should be able to solve its own problems without running across the Mediterranean to seek intervention from the former colonial masters?

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