The MOU Between Somalia and Kenya: A Big Fat Fact Check
By Aburahman Hosh Jibril
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
E-Mail: abdihosh1@yahoo.ca
SOURCE: http://www.yasni.com/sadia+aden/check+people
Discussion: which government system currently is best for Somalia