

By Nzau Musau

Sunday January 7, 2018

Kenya could be forced to compensate Somalia over oil exploration on a disputed sea area if the neighbouring country wins a case being adjudicated at the International Court of Justice (ICJ).

The case lodged by Somalia on August 28, 2014 is set to gain full steam after Kenya lost preliminary objections last year. The government was then required to file a substantive response to the main case in December last year.

And although Kenya, through the Office of the Attorney General Githu Muigai, complied with the orders by December 22nd, officials have remained tight-lipped on the content and nature of the defence they gave.

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The Attorney General who put up a spirited fight inside the ICJ courtroom last year but lost, did not respond to our inquiries. His fate in the wake of Friday’s Cabinet purge remains unknown.

In the secretive defense known in court parlance as a “memorial,” Kenya is understood, to have insisted on its boundary with Somalia being along a parallel of latitude as was decreed in the presidential proclamation of 1979.

It is also rooting on a second Presidential Proclamation in 2005 as well as its submission to the United Nations Commission on the Limits of the Continental Shelf (UNCLCS) in 2009.

“Kenya asserts that all her activities including naval patrols, fishery activities, marine and scientific research as well as oil and gas exploration are within the maritime boundary established by Kenya and recognised and respected by both parties since 1979,” a statement from AG’s office said.

In the memorial, Kenya is also insisting on a negotiated solution.At stake in the case are seven oil blocks awarded to foreign companies on concession basis. Kenya has since claimed exploratory activities in the area have been suspended as a sign of good faith but Somali insists this is not enough:

“Adjudge and declare that Kenya, by its conduct in the disputed area, has violated its international obligations to respect the sovereignty, and sovereign rights and jurisdiction of Somalia, and is responsible under international law to make full reparation to Somalia,” Somalia says in its claims.

In the past, maritime experts have warned that Kenya could lose the main case if past rulings of the court were anything to go by. Their arguments are based on the fact that the method adopted by Kenya to claim the maritime border -- parallel of latitude -- is seldom relied on by the court as compared to Somalia’s equidistant line approach.

Last year, Prof Musili Wambua, a maritime law expert said the only way Kenya can avoid losing is by demonstrating existence of “very strong circumstances which warrant a departure from the equidistant line advocated by Somalia.”

“It is only in Nicaragua v Honduras that the ICJ departed from the principle of equidistant special circumstances principle/rule and applied bisector method because equidistant could not produce equitable outcome,” Wambua said.

In its preliminary objections, Kenya had argued that a 2009 Memorandum of Understanding with Somalia acknowledging a dispute and vowing not to challenge each other’s claims pending process of registering borders removed the matter from ICJ scope.

On top of the reparations, Somalia also wants Kenya to hand it over all seismic data acquired in areas that are disputed “and to repair in full all damage that has been suffered by Somalia.