Suit filed to stop Kenya from taking part in Somalia boundary dispute in The Hague

June 28, 2019 1:51 pm
The ICJ on Tuesday announced timelines for oral submissions by Kenya and Somalia, both parties having filed written submissions to the court in 2018/FILE – ICJ

, NAIROBI, Kenya, Jun 28 – Twenty petitioners have moved to the High Court seeking to compel the State to withdraw from a maritime delimitation case at the International Court of Justice (ICJ).

Kenya was sued at the court by Somalia in August 2014 over a contested 62,000 square miles oil-rich triangle in the Indian Ocean.

The petitioners, under Kinoti and Kibe Advocates, have told the court Kenya’s participation in the suit in which hearings are scheduled to commence at the Hague-based court on September 9 could have an unprecedented effect of altering the boundary of the country, contrary to the Constitution (2010). The petition was filed Thursday.

The petitioners, who have listed the Attorney General, Ministry of Foreign Affairs and Kenya International Boundaries Office, argue that any change to Kenya’s territory will require a national referendum as set out in Article 255 of the Constitution.

According to the petition, the jurisdiction of The Hague-based court is subject to Kenya’s reservation and must be interpreted in line with Article 2 of the Constitution which renders laws inconsistent with it invalid to the extent of the inconsistencies.

“Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid,” Article 2 (4) provides.

The petitioners prayed that the High Court would issue a declaration, “that within the meaning of Article 2(5) of the Constitution, Section 4 (4) of the Maritime Zones Act, Cap 371 embodies the reservation of Kenya to the jurisdiction of the International Court of Justice contained in the Declaration dated 19th April, 1965.”

The ICJ on Tuesday announced timelines for oral submissions by Kenya and Somalia, both parties having filed written submissions to the court in 2018.

Somalia had until June 18, 2018, to file its written submissions with Kenya given until December 18, 2018 to file a rejoinder.

The first round of oral submissions is slated to run from September 9 to September 11 with the second round set for September 12 to September 13, according to a schedule published by the court’s Information Department.

Kenya’s attempt in 2016 to challenge the admissibility of the case flopped after an ICJ bench dismissed the objection in a majority ruling on February 2, 2017.

The petition filed by Kinoti and Kibe Advocates has cited the February 2, 2017 ICJ ruling which qualified a Memorandum of Understanding (MoU) signed between Kenya and Somalia on April 7, 2009, as a treaty under international law.

According to the petitioners, the ICJ ruling permitted Kenya’s reservation to ICJ further prohibiting the exercise of its jurisdiction over Kenya so as to give effect to the 2009 MoU.

The petitioners asked the High Court to issue a declaration barring the ICJ from asserting its jurisdiction over the maritime boundary dispute due to “any real or alleged imprecision or lack of clarity in the MoU”.

They affirmed that any perceived vagueness in the MoU, “cannot negate Kenya’s reservation to the jurisdiction of ICJ with the consequence of the said Court asserting jurisdiction by default”.

Kenya’s Ministry of Foreign Affairs has been on record criticizing Somalia’s failure to commit to an out of court settlement as envisaged under the 2009 deal which was deposited to the United Nations in 2011.

The two countries have experienced strained relations in the recent months after Somalia offered the disputed oil-rich area in the Indian Ocean to prospectors at an auction in London on February 7.

Kenya responded to the actions by Somalia by recalling its diplomat in Mogadishu for what the Foreign Affairs Principal Secretary termed as “urgent consultations”.

While making the unprecedented announcement on February 16, PS Kamau accused Somalia of unilaterally selling off oil and gas blocks in the disputed maritime territory at a London auction on February 7 terming the move “unparalleled affront on Kenya” adding the “illegal grab” will not go unanswered.

“This outrageous and provocative auction deserves and will be met with a unanimous and resounding rejection by all Kenyans as well as all people of goodwill who believe in the maintenance of international law and order and the peaceful and legal resolution of disputes,” Amb Kamau said adding that Somali’s representative in Kenya had also been referred to Mogadishu for “urgent consultations”.

The two countries announced the normalization of diplomatic relations on April 3 after Foreign Affairs Cabinet Secretary met her Somali counterpart Ahmed Issa Awad in Nairobi.

Somali’s Ambassador to Kenya, Ahmed Nur, returned to Nairobi on May 14.

MFA PS Macharia Kamau welcomes Somalia Ambassador Ahmed Nur back in Nairobi on May 14 after the two countries normalized relations/ FILE

Nairobi has incessantly downplayed reports of souring relations with Mogadishu despite recurring accusations by the latter.

On May 20, CS Juma refuted reports that three Somalia government officials were maliciously turned away upon arrival at the Jomo Kenyatta International Airport for lack of visas despite holding diplomatic passports.

Mogadishu on May 21 protested Kenya’s actions as destabilizing adding that they contravened the neighborly bond that exists between the two nations.

Mogadishu also took issue with the reinstatement of mandatory security screening stops at Wajir for all inbound flights from Somalia.

“The Government of Somalia also expresses its concern with regards to the reinstitution of a mandatory stopover in Wajir ostensibly for purposes of conducting additional security checks on Somalia passengers,” the foreign ministry said in a statement.

“This is inconsistent with an agreement reached between our two governments in respect to conducting direct flights from Mogadishu to Nairobi,” the foreign ministry indicated.

Kenya has held a series of meetings with foreign envoys based in Nairobi, the foreign ministry saying the engagements are solely to assure the international community of Kenya’s readiness to comply with globally accepted norms and practices.

PS Kamau on Thursday met Yasin Hagi, the Foreign Minister of Somaliland, a self-declared state seeking fully autonomy from Somalia.

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