The country defends its withdrawal from border dispute case with Somalia

Kenya has explained why it decided not to participate on the ongoing maritime delimitation case with Somalia, citing procedural unfairness at the International Court of Justice.

In a statement today from the ministry of foreign affairs, it said the decision was made after extensive consultation on how best to protect the sovereignty and territorial integrity of the Republic of Kenya.

“Kenya has collected, and continues to collect substantial additional evidence in the matter, information it says will be of value only if Kenya is given ample opportunity to prepare it for proper and effective presentation to the Court,” it read.

The UN tribunal rules in disputes between countries, and has been hearing a case brought by Somalia in 2014.

Somalia, which lies in the north east of Kenya, wants to extend its maritime frontier with Kenya along the line of the land border, in a south east direction.

The country wants the border to head out to the sea in a straight line east, giving it more territory.

The disputed triangle of water stretches over an area of more than 100,000 square kilometres (40,000 square miles).

Somalia claims Kenya has breached on its borders in the Indian Ocean and wants the boundaries reviewed, a move that could rob off Kenya a huge part of its ocean territory.

In the latest development, Kenya has informed the court that any insistence on its participation in the proceedings, defeats Kenya’s right to a fair hearing.

According to Nairobi, 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.

Kenya says it remains confident in its position that there is an existing maritime boundary that was established in 1979.

“The boundary as established has been respected by both Countries until 2014 when Somalia attempted to repudiate the agreement by dragging Kenya to the International Court of Justice seeking to appropriate Kenya’s maritime space” reads the statement.

In the brief, Kenya says that its concerns have also been disregarded by previous decisions taken by the court which has created a perception of unfairness and injustice.

‘…including amendment by the court to its rules to allow for hearings to be conducted via video link without consultation of member states prior to the issuance of the hearing dates for this case,” it read.

Kenya says it has consistently communicated to the court its reasons for seeking a deferment of the case including the Covid-19 situation which struck when the country had just recruited a new legal team, conditions that hampered its ability to prepare adequately for the hearing.

Kenya argues that the court has failed to appreciate that it is exactly where it was at the beginning of 2020 with regard to its compilation of its international legal team.

“Without such necessary preparations, Kenya is of the considered view that any participation in the hearing will be nothing more than a perfunctory, cosmetic and symbolic exercise” Kenya observes.

In its view, Kenya says the seriousness of the case requires proper and adequate preparation.

“In Kenya’s view, it would be ill-advised for it to participate in a complex case with far-reaching consequences, without such proper and adequate preparation. These and other related matters have forced Kenya to stand back from the court and to continue to insist that the resolution of this border dispute belongs in its rightful place on the bilateral and or continental platform” submits Kenya in its brief.

In a letter to Philippe Gautier, the Registrar at the ICJ, Kenya re-affirmed that it was not properly before the court in accordance with its acceptance of the court’s jurisdiction.