The MOU Between Somalia and Kenya: A Big Fat Fact Check
by Abdirahman Hosh Jibril
Thursday, September 10, 2009
“Analysts and activists such as Sadia Aden, a Virginia-based human rights advocate and Prof. Abdi Ismail Samitar (sic), a Somali advocate at the Univ. of Minn., say the UN has engaged in leading Western nations in an attempt to control Somali resources. The foreign navies that patrol Somali seas against pirates are really there to exploit the resources of Somalia, mainly its oil reserves and natural gas; and have been given permission to do so by the UN Security Council, Ms. Aden told The Final Call. “Somalis know that these navies did not come to hunt and prosecute pirates but to divide the Somali seas, and to protect their interests as they hope to divide up our resources—not just in the ocean, but also on land,” Ms. Aden added. Prof. Samitar (sic) told The Final Call that the MOA caused uproar in Mogadishu; and that the 245-member Somali Parliament voted unanimously against it. “This is not a real government, so they lack the authority to implement or enter into agreements,” the professor insisted.”
The above quote is from an excerpt in an article dated September 7, 2009 in the Final Call, the voice of Louis Farrakhan’s Nation Of Islam. The article is about the May 2009 signing of a Memorandum of Understanding between Somalia and Kenya, concerning Kenya’s submission of its possible claim to an extended continental shelf to the United Nations Commission on the Limits of the Continental Shelf (CLCS) on its proscribed deadline of May 13, 2009. The article further damns Norway for assisting Kenya on technical and legal matters during its preparation of its submission, and also for assisting Somalia to meet its legal obligations in the face of Kenya’s claim submission. It does not stop there but continues to impute a sinister motive to the UN Special Envoy to Somalia, Ahmed Ould Abdalla for Norway’s forays into the deliberations of these matters.
I hate to rain on the party of Sadia Aden, Prof. Abdi Samatar, Innercity Press and the Final Call, but this whole "expose" is the stuff of conspiracy theorists. First, Inner City Press which first claimed this scoop is an ultra far left organization that, while working on housing and poverty issues in inner city areas such Harlem and the Bronx did a good job of putting the agenda of poor people on the front burner, but when it turned its agenda to global issues (following the left's "correct' mantra that all struggles are interconnected), they became reductionist; hence their penchant for conspiracy theory. Likewise, the Final Call (where this article originated) is the mouthpiece of the ultra Black Nationalist/Fascist outfit, the Nation of Islam of Farrakhan whose views are universally not given much credence.
I hope people will read the MOU carefully and also read the history and evolution of the United Nations Convention on the Law of the Sea (UNCLOS) and all the important legal and customary instruments contained therein, which I am sure the good professor and activist Sadia Aden have not read. Having perused these documents myself, I see nothing sinister about the recent MOU between Kenya and Somalia. As for Norway advising Somalia on technical matters about a potential claim on the continental shelf beyond its 200EEZ, it is a routine matter as we will see later from the experience of other African jurisdictions. Moreover, the UNCLOS regime itself has expertise that will be available to Somalia or any other coastal state whose submissions are due. It is equally false that Norway has an economic interest in this as it does not have any licenses with Kenya on offshore drilling on the contested waters. Rather, it has a long standing agreement for Diamond exploration close to the rift valley. The Migori Archaean Greenstone Belt as it is called is where the Lolgorien license area is located at the Lake Victoria Goldfields in South West Kenya. Not close to Waryaa (Somali) territory.
As for the Somali people crying foul over this MOU, it is mind boggling. The whole brouhaha was picked up by simpleton Somali websites who have done no research on the subject but kept going at it ad nauseam. Where in the rest of the world, the internet and the blogsphere are being utilized by citizen journalism community to empower the disenfranchised masses, the Somali e-citizen journalists are engaged in ignorant polemics. To add to this, reputable media outlets such as the Voice of America and BBC Somali services parroted the same nonsense, instead of putting the bogus claims of the proponents of the conspiracy theory to a transparent smell test. If they did, the public would have been enlightened for the better.
Fact is, this MOU is part of harmonizing the UNCOLS regime that has been evolving since the third protocol of 1982 that came into legal force in 1994, with a supplementary appendix added in 1996 and it applied to all coastal states with a potential claim. Anything beyond the EEZ is contestable among costal states, but the ultimate arbiter will be the UN Commission on the Limits of the Continental Shelf (CLCS) composed of lawyers, oceanographers, geophysicists, economists and a host of specialized experts. And of course, coastal states will be allowed to make their own submissions and counter-submissions. Note also that this particular MOU between Somalia and Kenya includes a "without Prejudice" clause, meaning that nothing in the MOU will have a negative impact on the interests of the two states until the matter is fully arbitrated.
Furthermore, a close reading of the history and evolution of UNCLOS will demonstrate that this convention was arrived at in a very sensitive manner that took into account the interests of Developed and technologically advanced countries with a countervailing concerted effort to preserve the rights and interests of coastal states in the South. It was Harry Truman who expanded the age old notion of the Freedom of the Sea Doctrine which was in force since ancient Egypt. But his attempt to do so set the motion for the evolution of the UNCLOS. If you follow the trajectory of this evolutionary process, the territorial water boundary of coastal states was initially limited to 3 miles and the Superpowers and developed countries wanted to keep it that way so that they could encroach on resources close to the coasts of less developed countries. At the outset, coastal states fought to extend the territorial waters to 12 miles and that is where it stays today. The 12 mile is a juridical line in that a coastal state can enforce its own laws on encroaching states but also guarantees others country’s ships what is known as “Right of innocent passage". Now, as the UNCLOS evolved, the less developed countries insisted on the 200 EEZ -which would accede to all coastal states sovereign rights in a 200 nautical mile exclusive economic zone over which they could extract natural resources, carry other economic activities and have jurisdiction over marine research as well as environmental protection- while developed countries wanted to limit coastal states to the 12 mile territorial waters. The rationale is obvious: Rich countries with better technologies have the ability to send their ships all over and extract resources, which means they can come close to the coasts of poor countries, but poor countries do not have the technological wherewithal to reciprocate and encroach on the coasts of say, Russia or the USA. It will be a one-way highway robbery. The South countries banded together and forced UNCLOS to include a 200 EEZ clause. It did help that during these negotiations, the Non-Allied Nations, born out of the post colonial stigma of differential power equations were actively relevant and therefore, the collective guilt of North countries helped adjust their moral compass accordingly and agreed reluctantly to this revolutionary legal instrument. Why is the 200 EEZ important? That is where over 85 percent of resources lie, from fish and plant life to minerals and gas.
Now, about the MOU. The MOU only agrees to Kenya submitting a claim on a "without prejudice basis". It is silent on any delimitation or any other tangible matter. FYI, Omar Sharmarke also submitted Somalia’s counter claim on a "without prejudice basis". This is only a sort of a motion and the deliberations will be at a later date, probably from 5 , 7 to 10 years. The deliberations will be technical and legal in nature and all parties will be allowed to make submissions. Mind you, both Kenya and Somalia as well as many countries in the Least Developed Countries (LDC) do not have the requisite technical expertise to frame their claims on their own. For that matter, UNCLOS has had the sagacity to create a specialized and technical advisory body that will be available to all coastal states. Bear in mind also that Norway, far from playing an exploitative role here, created a special trust fund and forced other North countries to contribute to this fund, which fund will essentially be used to extend technical, financial, legal etc assistance to poor coastal states in the event that they want to put forth their claim as to how far their geophysical landscape extends to the continental shelf. It should also be noted that this MOU is part of a greater harmonization of the law of the sea and its focal point was not meant to focus on Somalia. In other words, the universe does not revolve around Somalia, as conspiracy theorists would have us believe, because many of the coastal states and Small Island Developing States (SIDS) among the142 countries that are signatories to the United Nations Convention on The Law of the Sea were also grabbling with submission and counter submission issues right before or on may 13, 2009, the proscribed deadline date for submission.
On February 13, 2009, a two day ministerial meeting was held by ECOWAS member states in Abuja on the “Outer limits of the continental shelf”. The purpose of the meeting, among other things, was to bring these disparate countries with conflicting and adverse claims on the same continental shelf, in order to map out collaborative strategies and share information, both technical and diplomatic. Here are the countries represented in that meeting: Cape Verde, Benin, Cote d’Ivoire, the Gambia, Liberia, Nigeria, Ghana, Sierra Leone, Guinea Bissau and Guinea. For the benefit of the conspiracy theorists, I am happy to report that the Deputy Minister of International Development of the government of Norway, Honorable Hakon Arald Gulbrandsen was also present in that meeting, and he advised ECOWAS Ministers that his government (Norway) would be willing to assist member states with technical matters so that they can meet their May 13, 2009 submission deadline. Before the meeting was over, the then President of ECOWAS, Dr. Mohamed Ibn Chambas expressed ECOWAS’s gratitude to the government of Norway for its professed willingness to help member states through the process.
The reason I bring the ECOWAS episode up is because as I enunciated earlier above, the current hysteria wrapped around the MOU between Somalia and Kenya is much ado about nothing. It was borne out of ignorance. Educated people who were supposed to vet the substance of the allegations either chose the easy way out and dozed off, or they deliberately chose to use their political axe to grind the Transitional Federal Government of Somalia ( Read Samatar). The Somali websites, with no research capability and capacity, went along with the story and gave it a life of its own. And reputable media outlets such as the Voice of America and the BBC engaged in a dereliction of duty that could potentially bring disrepute to the otherwise honorable profession of journalism. I also bring it up because, I have not detected any whiff of paranoia in West Africa about the white Norwegian Minister helping write the submissions of ECOWAS member states in February of 2008. Following the logic of this conspiracy theory therefore, could it be that Norwegian government officials turn sinister the moment they deal with Somali issues? Just a weird thought!
As for the Somali public, I can understand their paranoia because nothing Somali has turned out to be OK in the last 20 years; so even if it rains pearls in Somalia, our antenna would be up. Nothing wrong there. I am reminded of Malcolm X when asked if he is not being paranoid of White people. His answer “Any black man in North America who is not paranoid must have his head examined".
Maccalin Yaa Waaye!
Aburahman Hosh Jibril