Kenya is seeking the withdrawal from an international maritime boundary dispute case with Somalia because of a perceived bias and unwillingness of the court to accommodate requests for delaying the hearings.
Kenya argues that the International Court of Justice (IJC) has been less accommodative in its request to delay take off of the case citing COVID-19 pandemic.
The case resumes Monday March 15, amidst deteriorating diplomatic relations between Nairobi and Mogadishu.
Kenya is currently a non-permanent member of the influential United Nations Security Council (UNSC) where five of the world’s most powerful nations have permanent seats.
Somalia filed a case at ICJ in 2014 claiming territorial ownership of most of what is currently recognized as Kenyan waters in the Indian Ocean.
Kenya has strongly defended its territorial integrity and dismissed arguments that, if upheld, could cause damaging socio-economic and political ramifications along the coastline.
The administration of embattled Somalia President Mohamed Abdullahi Farmaajo has in recent years taken a more aggressive approach towards President Uhuru Kenyatta’s government, accusing it of meddling in its internal affairs. Nairobi has repeatedly denied the accusations.
Attorney-General Kihara Kari uki communicated the government’s decision to the ICJ — also referred to as the World Court — on March 11, just days before the oral hearings were set to start on March 15 and run until March 24.
“Kenya wishes to inform the court, through the Registrar, that it shall not be participating in the hearings in the case herein, should the same proceed from March 15, 2021 as presently scheduled,” the letter by the Attorney-General reads in part.
Kenya’s decision not to participate in further proceedings in this case, has been prompted by what Nairobi sees as bias by the court and the judges’ decision to press ahead with the oral hearings despite Kenya’s request for postponement to allow its team of new lawyers to familiarize itself with the matter.
The communication states that the Covid-19 pandemic means that Kenya has not been able to prepare adequately as it struck “just around the time that Kenya had recruited a new legal team”.
“The consequence of this is that Kenya and its legal team were deprived of the opportunity of having necessary preparatory meetings and engagements,” says the AG in the letter.
The AG transmitted the documents to the court through the Registrar, Philippe Gautier.
Kenya dismissed its legal team in 2019 over misgivings about the quality of representation and hired new lawyers in December the same year.
The Kenya-Somalia maritime dispute has seen world powers become involved, even if indirectly, attracted by the promise of abundant oil and gas deposits in the Indian Ocean waters.
The US and France in particular have reportedly been siding with Kenya, driven by the partnership Washington, in particular, has with Kenya on the war on terror.
The new team is led by American professor Sean D Murphy and a former judge of the International Tribunal for the Law of the Sea, Tullio Treves.
Other members of the team are professors Phoebe Okowa — who is the only Kenyan member of the team but based in the UK — Makane Mbengue, Laurence Boisson De Chazournes, Christian Tams and Eran Sthoeger.
The government also hired Coalter Lathrop to assist the team with geographic analysis and cartographic skills.
The AG further argues that Kenya’s case is largely based on demonstratives and cannot adequately and effectively be conducted by video link.
Despite what Kenya considers valid concerns, the government says the court has refused to consider its request to delay the hearings, compelling it to withdraw, which is “unprecedented in its history in relation to any international adjudication mechanism”, writes the Attorney-General.
“Since the case is not urgent for any reason, Kenya least expected that the court would make this into the first case to be heard on its merits via video link, despite one party’s sustained, well-grounded objections,” Kenya states.
The communication to the court further says that the continued participation of ICJ judge, Abdulqawi Ahmed Yusuf, a Somali national who as recently as February was the president of the court, does not promote confidence in the impartiality of the court. Yusuf was succeeded by American Joan E Donoghue as ICJ president in February but remains a judge of the court.
“Kenya’s concerns and perception of unfairness and injustice in this matter are exacerbated by the inexplicable rejection of Kenya’s preliminary objections to this court’s jurisdiction and the dismissal of the request for the recusal of Judge Abdulqawi Ahmed Yusuf, given his past exposure, on behalf of Somalia, to the issues in this case. This is notwithstanding the fact that Kenya has taken extensive measures that are illustrative of its good faith and seriousness in defending this case, including by filing pleadings within the timelines directed by the court,” the communication to the ICJ reads.