Kenya withdraws from ICJ maritime border case with Somalia

NAIROBI, Kenya| In yet an unprecedented move, Kenya has withdrawn from the International Court of Justice [ICJ] case ahead of a hearing scheduled to kick off on Monday [tomorrow], after months of postponement as requested by authorities in Nairobi.

In 2019, the case was postponed twice and Nairobi managed to get the third postponement in March 2020, but the court refused to issue a fourth postponement this year, arguing that the issues raised by Kenya were not "substantive".

And reports now indicate that Nairobi will not participate in Monday's oral submissions, where the court had admitted hybrid presentation, which would have allowed both sides to either present evidence physically or through a virtual presentation. 

ICJ had last week released a schedule that would run until Wednesday next week, but the last-minute withdrawal of Kenya comes with a huge shock. Neither Somalia nor Kenya have issued statements about the latest development. 

But observers say the court will likely go ahead with the hearing. Although the schedule is now for both countries, the hearing will be shortened for the Somalia team to present their case; that is unless Kenya makes a last-minute decision to change and participate.

Even if Kenya doesn’t participate in oral hearings, they opine, this is not unprecedented, observers believe; because there is a precedent in a case involving China and the Philippines where the oral hearing took place despite the absence of one of the two parties.

Once the hearing is done this week as scheduled [ICJ didn’t indicate otherwise], it will take at least another 4-6 months before the court makes the final verdict, observers. This is because every judge has to have time to deliberate the case based on argument and evidence submitted

Lawyer Patrick Lumumba questions why the two sides did not choose of court settlement, arguing that it was pointless for Kenya to pay several international lawyers millions to handle the case. AU had tried to make such requests but was not successful.

"What is happening between Kenya and Somalia regarding the Maritime boundary is very sad. The matter can be resolved through pragmatic political goodwill. And why do we ignore foreign expertise and higher foreign Lawyers? he wondered. 

A three-judge bench said a few months ago any move by the government to withdraw from the case will be prejudicial to the interest of the public. This is after several petitioners had moved to court, seeking an order to compel Kenya to withdraw from the case. 

The judge's Justices Kanyi Kimondo, Robert Limo, and Anthony Mrima said contrary to petitioners assertion that the Attorney General participation in the proceedings set to commence in June this year amounts to giving up the country's sovereignty, they are satisfied that nonparticipation will infringe on article 156 of the 2010 constitution.

Human rights crusader Kiriro wa Ngugi and 19 others through their lawyer Kibe Mungai had in a petition contended that Kenya’s participation in a case before the ICJ is unlawful on grounds that the delegation of sovereign powers of the people to the executive through the AG is limited and does not include engaging in actions that may alter Kenya’s territory and territorial waters without reference to the people through a referendum.

GAROWE ONLINE