Kenya accuses ICJ of ‘procedural unfairness’ in maritime case

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Uhuru Kenyatta, Kenya President

Kenya is accusing the International Court of Justice of “procedural unfairness” after it allowed oral hearings to go on despite Nairobi’s protests.

The oral hearings began on Monday and went on until Thursday, and Somalia was allowed slots meant for Kenya to argue that a maritime boundary between them should be redrawn.

On Friday, however, Nairobi said it was demanding the withdrawal of the case as it was heard before a bench a bench it did not have confidence in.

“Kenya outlined that while it had no doubt about the merits of its case, procedural unfairness had left doubt on whether substantive justice would be done,” said a statement issued by the Ministry of Foreign Affairs.

“Kenya re-stated that it should not have been dragged to the court by Somalia, merely because of the neighbour’s resurgent expansionist agenda.”

In a letter to the ICJ Registrar Philippe Gautier, Kenya earlier demanded Somali judge Abdulqawi Yusuf’s recusal from the case.

Judge Yusuf, a French-educated Somali lawyer, has sat on the case since it was first filed in 2014, in spite of reservations from Kenya.

In a declaration appended to a 2017 judgement allowing the case to be heard, Judge Yusuf criticised both Kenya and Somalia for signing an MoU which they had not drafted.

“No government can afford today to put its signature to a bilateral legal instrument which it has neither carefully negotiated nor to which it has hardly contributed,” he declared in February 2017.

Kenya-Somalia MoU

Mr Yusuf, then the Vice-President of the Court, had sided with the verdict admitting the case, but felt the need to write a further declaration on the nature of the document.

He completed his term as president of the court in January but still sits on the bench.

With a painful history of a colonial past, he argued, African countries should pay particular attention to the contents of such agreements.

“To this end, they need to develop and use their own expertise to negotiate, draft, and advise on the rules and obligations of international laws to which they wish to subscribe.”

Judge Yusuf was referring to an MoU Kenya signed with Somalia to negotiate the maritime boundary through the UN Commission on the Law of the Sea.

The Somalia Parliament rejected the document drafted by Norwegian diplomat Hans Wilhelm Longva.

The Court, though, termed the document a valid bilateral treaty but said it did not stop parties from launching alternative means to resolve the dispute, it said.

“Kenya also noted that the composition of the membership of the bench conducting the case reinforced concerns of bias, citing the case of Somali Citizen, Judge Abdulqawi Yusuf, who sits on the ICJ and who has previously represented Somalia at the Third United Nations Conference on the law of the sea,” the Foreign Affairs ministry said.

“At the conference, the judge stated that delimitation of the EEEZ and continental shelf should not be effected in accordance to the principle of equidistance but rather by application of equitable principles.”

Political tensions

After hearing Somalia’s arguments, the judges are supposed to begin deliberations and write a judgement.

But the case is now likely to present extra political tensions after Kenya accused the court of imposing its jurisdiction on Nairobi.

Ahead of the hearings, Kenya’s Attorney-General Kihara Kariuki wrote to the court, saying Kenya would not be ready as it has been unable to gather its legal team. It also argued that there was no urgency in the case, raising suspicions that third parties were pushing Somalia to continue with the case.

“The speed at which the matter was rushed before the court and the players involved in this dispute, pointed to a well-orchestrated strategy of pitting the countries against each other, in total disregard to the precarious security situation in the region,” the ministry said.

“Influential third parties are intent on using instability in Somalia to advance predatory commercial interests with little regard to peace and security in the region,” it added, without specifying.

Disputed area

The area in dispute is 100,000km2 of sea thought to have lucrative hydrocarbons and fish.

Kenya wants the boundary to run eastwards on a parallel line of latitude as it is today while Somalia argues the line should flow southeastwards, based on an equidistant line.

While Kenya can now not stop the judges from making a verdict, the next phase could be about how the two countries can come together to finally draw the boundary.

Kenya says it will continue to push for a “diplomatic solution” but says Somalia must first normalize the diplomatic relations it cut last December, which it argues have made Kenya prone to attacks by terror group Al-Shabaab.

“Kenya also expects Somalia to normalise its relations with Kenya following its unprovoked and unjustified decision to sever diplomatic relations with its neighbour.,” the ministry said.

“Somalia has to normalise its relations with Kenya before it can engage on any platform, anywhere in the world, with any person and/or agent of Kenya through any proxy.” (Theeastafrican)

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