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Role of ’s in Resolving the Kenya-Somalia Maritime Boundary Dispute

Stephen Nduvi

Executive Summary

This paper examines the strategic leads that the Somalia constitution provides African Union (AU) to pursue mediation to Kenya and Somalia on the delimitation between and the opposing of the ongoing maritime dispute. The Federal Member States and; put in place leads include delimitation of the territory appropriate mechanisms for managing of the Somalia; simmering conflict over post-election fallouts in Somalia. federalism; handling Somalia post-2021 elections fallouts and; simmering conflict over petroleum legislative processes. Key findings are drawn from expert opinions and comprehensive desktop review of documented sources. The Introduction paper concludes that implementation of the Somalia’s provisional constitution The United Nations Convention on the Law faces a number of challenges which offer of the Sea (UNCLOS) provides for bilateral leverage for the Kenyan and multilateral dispute resolution options in seeking alternative mechanisms for available to states. Similarly, the provisional the resolution of the maritime dispute constitution of the Federal Government of through institutional-level dialogues. Somalia (FGS) provides leverage for bilateral Key recommendations include the negotiations between Kenya and Somalia in the need for Kenya to use the constitutional maritime dispute, while premised on UNCLOS. provisions to intensify engagements The constitution of Somalia has been key with United Nations to bring Somalia in her quest to establish efficient political back to the negotiation table; Influence institutions and introduce governance that is more responsive and accountable to its people (Kouroutakis, 2014). The constitutional making

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process has been one of the longest and most border. The dispute dates back in 2009 when complicated since her independence from a Memorandum of Understanding (MoU) was Britain in 1960. Unfortunately, political tensions established seeking a negotiated settlement and insecurity have characterized governance to the maritime claims as provided for in the in the FGS thereby jeopardizing the stability of UNCLOS. Kenya maintains that the maritime the long walk to constitutionalism. border should move easterly from land to Indian Ocean while Somalia insists that the border Background should move continuously south-easterly into the ocean. The zone has huge deposits of The Somali constitution comprises 15 chapters hydrocarbons and Tuna fish resources. Despite and 143 articles. In article 7 the constitution the available constitutional provisions for dispute outlines the territory of the Federal Republic of resolution, Somalia has taken a unilateral non- Somalia (FRS). It also provides how to resolve diplomatic approach in the resolution of the row international boundary disputes in a peaceful (Sabala, 2019). and cooperative manner, in accordance with international law. Methodology

The disputed maritime zone between Kenya The paper used both primary and secondary and Somalia is a case of an overlapping data to draw inferences on the strategic leads

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that the Somalia constitution can provide to Simmering Conflict over Federalism Kenya and Somalia on the delimitation of the ongoing maritime dispute with Somalia. Primary data was collected through interviews with key Chapter 5 of the Constitution devolves state experts. Secondary data was collected through a powers to create two levels of government - the comprehensive desktop review of documented Federal Government and the Federal Member sources. The data was analyzed thematically as States (referred to as Member States). The per the research questions. constitution in Article 120 distinguishes their capacities and further guides the establishment Key Findings of the member state institutions, including the legislative and the bodies. Similarly, The following discussion examines key issues to harmonize their functions, Article 121 gives emanating from an analysis of the constitution the guiding principles to be adhered to by the of Somalia in relation to the maritime dispute. of the Member States and federal They remain of strategic relevance to both government. Kenya and Somalia as far as their diplomatic approaches to the resolution of the maritime Article 50 provides for both levels of government dispute are concerned. to observe the principles of federalism in all their interactions between themselves and while Delimitation of the Territory of the exercising their legislative functions and other powers. These principles include: resolution of Federal Republic of Somalia disputes through dialogue and reconciliation; fair distribution of resources; mutual cooperation and support to promote national unity. Unlike Article 7(4) of the constitution outlines that other forms of political decentralization, this boundaries of Somalia shall be as provided for in combination of shared rule and regional self-rule 1960. It states that territorial sovereignty shall is guaranteed and protected by the constitution extend to continental territory, islands, territorial in a federal system, and cannot be revoked by waters, the subsoil, the airspace above and the central government, without constitutional the coasts. Article 7(5) further states that the amendments, which require the consent of the boundary of Somalia with Kenya is to the south regional (UN Political Office for west. The constitution is silent on the extent Somalia, 2012). of the continental shelf in the Indian Ocean, particularly the boundary of her territorial Federalism establishes two centers of power waters with Kenya (PCS 2012). By principle, which should have concurrence in all the constitution also acknowledges the governance matters. This is in the spirit of delimitations provided for in the UNCLOS. Even promoting national interests and national unity. though Somalia took a strictly legal approach at Concurrence has not been the case since the International Court of Justice (ICJ) to settle President Mohamed Abdullahi Mohammed the maritime dispute with Kenya, there is still “Farmaajo” has been pursuing a centralized an option for her to adopt more peaceful and governance approach and a nationalist agenda. cooperative approaches as provided for in the The President has created a bandwagon of constitution and UNCLOS. This was not fully allied Member States that includes South West, exploited even as she lodged the dispute with , and Hirshabelle. This move threatens the ICJ. Returning Kenya and Somalia to the the autonomy of the Member States. As a result, negotiation table based on Somalia laws and autonomous and semi-autonomous regions constitutional principles is thus an option for such as , and have both countries to explore. been victimized by the Federal Government. They are hardly consulted on issues affecting

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their territories which is contrary to Article 54 to fund their projects including the forthcoming which advocates for consensus between the and future elections campaigns even if they federal government and Member States. lose the February 8th presidential elections (Gundel, 2020). This questionable funding The political leadership is keen on exercising exposes Somalia to pressure by external actors. predatory politics to consolidate and It explains the lopsided response by President personalize power over the Member States. Farmaajo in the Kenya-Somali relations. This has escalated conflicts between Mogadishu and some Member States (Kalmoy, The revenue-sharing agreement provides for 2021). The persistent struggle for power and revenues from any eventual oil production to authority between Mogadishu and the key be distributed throughout the country’s federal Member States appears to be a key factor in the states. Somalia will retain 55% of revenue from maritime dispute. President Farmaajo is focused future offshore oil production and 30% from on consolidating power by dividing Somalia onshore output, with the Member States and into smaller states and rallying the people to the local communities receiving the remainder defend their territory against Kenya, thereby (The Somali Petroleum Law, 2020). The 2020 winning a second term in office (Kalmoy, 2021). Somali Petroleum Law remains contentious There exists an opportunity for mediation since some of the Member States were not between the two levels of governance. Kenya effectively represented in the negotiations. The has the prospect of pursuing conflict resolution enactment of the law breaches Article 44 which mechanisms meant to bring Mogadishu and declares that the principles of federalism rather the disputing Member States to negotiations than centralism should be the key principle in for the sake of stability in Somalia. This could governance of natural resources (Reitano & help rekindle the stalled negotiations over the Shaw, 2013). maritime dispute. Further, the Petroleum law breaches Article Simmering Conflict over Petroleum 53(2) which states that ‘where negotiations Legislative Process particularly affect Member State interests, the negotiating delegation of the Federal Government shall be supplemented by In February 2020, President Farmaajo ratified representatives of the Member States the Somali Petroleum Law, 2020, paving the way governments’. Member States such as Puntland, for licensing of exploration blocks (The Somali Somaliland and Jubaland have viciously Petroleum Law, 2020). The law was approved contested the Petroleum Law based on these by in May 2019 but the provisions. This presents an opportunity for did not pass it until January 2020. Delays in the Kenya to offer legal support on constitutionalism legislation process of the petroleum law were and reconcile Mogadishu and the opposing as a result of the contents therein including Member States on the controversial Petroleum the Production Sharing Agreement, Resource Law. Within this platform, Kenya and Somalia Sharing Agreement, and the establishment of may consider return to diplomacy on the the regulatory institutions, such as the Somali maritime dispute. Petroleum Authority. Handling Somalia post-2021 Using the controversial petroleum law, President elections Fallouts Farmaajo has fully taken control of the Ministry of Petroleum by appointing close allies to key positions in the Somali Petroleum Authority Article 47 outlines the regulations concerning whose tenure is four years. This implies the elections at the federal government level, incumbent ruling faction is able to exert control political parties, and their registration. Similarly, on the hydrocarbon resources income streams the article states that the National Independent

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Electoral Commission shall be defined in special 2021 elections (Somali Dialogue Platform and laws enacted by the House of the People of the Somali Public Agenda, 2020). Federal Parliament of Somalia. The regulations are paramount in promoting the independence Despite the consensus on the electoral model, and impartiality of the electoral body in Somalia political indifferences between the Federal against manipulation by interested parties or Government and member states remain partners. unresolved. Opposing groups such as Jubaland, Puntland and clan based organizations have In November 2020, Somalia got a new Prime contested electoral preparations and the Minister , after his impartiality of electoral commission which the predecessor Hassan Ali Khaire was voted out of federal government is likely to use to manipulate Parliament for failing to negotiate a one-person, the electoral process (International Crisis Group, one-vote system for the upcoming 2021 2020). Similarly, the threat of COVID-19, Al- elections (Voice of America 2020). Previously, Shabaab, and the withdrawal of US troops from in December 2019, the House of the People Somalia complicates the stability of Somalia in had approved the election law on universal 2021 post-election period. suffrage for presidential elections and slated them for February 2021 (Legacy Center for Since governance in Somalia is defined by clan Peace and Transparency, 2019). The universal affiliation as opposed to political ideologies, suffrage comes 50 years since 1969 when the a win or a loss by President Farmaajo in the government was overthrown in a bloodless coming elections will have ramifications on the military coup. However, political infighting stability of Somalia (International Crisis Group, between President Farmaajo and the country’s 2020). This is further complicated by the high regional leaders especially from Jubaland and stakes in the presidential elections since key Puntland are advocating for the indirect election opposition figures such as immediate former model. They want the UN-backed universal Prime Minister Khaire, and former finance suffrage model to be implemented after the minister Hussein Abdi Halane have positioned

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themselves as candidates. A win for President of political stability in the post-election period Farmaajo will make him a hero to those groups by reconciling the winners and losers of the that had confidence in the integrity of the presidential elections. Kenya can also assist in electoral process. This may lead to an end or developing post-election dispute resolution radical change in federalism while attracting mechanisms for Somalia. condemnation from the dissenting voices who perceive the election’s outcome as illegitimate. Conclusion However, if President Farmaajo is re-elected, opposing groups may trigger a clan based This paper concludes that the implementation of post-election crisis. The Al-Shabaab and the 2012 provisional constitution of Somalia faces Islamic State in Somalia will take advantage of a series of hurdles. This offers an opportunity any political instability to cause more disruption for Kenya to support the reconstruction and (International Crisis Group, 2020). Similarly, if constitutional process in Somalia. Pursuing Farmaajo loses power, federalism and clan- alternative mechanisms for the resolution of based political disputes will persist and any new the internal constitutional disputes Mogadishu leader has to deal with such divisions (Kalmoy, faces with Member States offers Kenya a better 2021). platform for advancing a diplomatic resolution of the maritime dispute. Kenya, being a regional peace ambassador, has an opportunity to steer Somalia to a path

RECOMMENDATIONS

The following recommendations are offered:

1. Kenya to intensify engagements with United Nations to return Somalia to the negotiation table on the maritime dispute under the guidance of Somalia Constitution and UNCLOS, 1982.

2. Kenya and Somalia to pursue African Union-led mediation processes between Mogadishu and the opposing Federal Member States for the sake of peace and prosperity in Somalia.

3. Kenya to pursue appropriate mechanisms for managing post-election fallouts in Somalia should elections go on as scheduled. This could help bring back negations on the maritime dispute.

References

Gundel, J. (2020). ‘Oil and Gas in the Political Kouroutakis A, E. (2014). The Provisional Constitution of Marketplace in Somalia’. Conflict Research the Federal Republic of Somalia: Process, Architecture, Programme, London: LSE. and Perspectives. Cambridge Journal of International and Comparative Law (3) 4: 1195–1206. Kalmoy, D. (2021). Somalia’s 2021 elections and the threats of federalism. https://www.dailysabah.com/ Sabala, K. (2019). The Kenya-Somalia Maritime Border opinion/op-ed/somalias-2021-elections-and-the- Dispute: An Unnecessary Diplomatic Row? African threats-of-federalism. Peacebuilding Network Briefing Note Number 25.

United Nations (UN). (1958). Geneva Conventions on Reitano, T. and Shaw M. (2013). Briefing: Peace, Politics the Law of the Sea (UNCLOS). https://legal.un.org/ and Petroleum in Somalia. African Affairs, Vol. 112(449), diplomaticconferences/1958_los/. pp. 666-675.

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Somali Dialogue Platform and Somali Public Agenda. of-the-Legal-Regulatory-and-Fiscal-Framework-of- (2020, December). Protecting stability and inclusivity Somalia-for-the-Petroleum-Sector.txt in Somalia’s indirect election process. Governance Brief No 10. https://somalipublicagenda.org/wp-content/ International Crisis Group. (2020). Political Turmoil uploads/2020/12/SPA_Governance_Briefs_10_ ahead of Somalia’s Elections. https://www.crisisgroup. ENGLISH-in-partnership-with-Somali-Dialogue- org/africa/horn-africa/somalia/political-turmoil- Platform-.pdf. ahead-somalias-elections.

The Provisional Constitution of Somalia. (2012). https:// Legacy Center for Peace and Transparency. (2019). constitutionnet.org/vl/item/federal-republic-somalia- Somalia Elections 2020/2021. http://legacycentersom. provisional-constitution-adopted-august-1-2012- org/wp-content/uploads/2019/12/Somalia- sep-19-2012. Elections-2020-2021-Position-Paper.pdf.

The Somali Petroleum Law (2020). http:// The Voice of America. (2020). Somalia Parliament somalialicensinground.com/wp-content/uploads/ Approves New Prime Minister. https://www.voanews. SOMALI-PETROLEUM-LAW-2020-2.pdf. com/africa/somalia-parliament-approves-new- prime-minister World Bank. (2016). Review of the legal, regulatory, and fiscal framework of Somalia for the Petroleum Sector, United Nations (UN) Political Office for Somalia. Federal Republic of Somalia, FINAL REPORT, 4 August (2012, July 23rd). Somali Draft Provisional Constitution 2016, World Bank. http://documents1.worldbank.org/ Guidebook. https://reliefweb.int/sites/reliefweb. curated/en/689761561009857518/text/Review- int/files/resources/constitution_guide_book_ EN_201207.pdf.

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