On ICJ, we shot selves in the foot

By Daily Nation

We are sore losers. And if there is one thing other than thieving we best the rest of the uncivilised world at, it is anticipating defeat and crying foul in advance.

That applies to courtroom battles as it does to electoral duels. We are adept at going into contests unprepared; and when the inevitable dawns, we throw hissy fits, Seen from that perspective, the tantrums displayed around the International Court of Justice (ICJ) award of ‘our’ territorial waters to Somalia were entirely predictable.

But before we started hurling brickbats at the court, we should have taken a long hard inward look and asked ourselves one simple question: Was it the court that was unfair to Kenya or did we sabotage our own case through sloth, incompetence and internal turf wars?

We might find we have only ourselves to blame for losing what might have seemed an open and shut case on the maritime boundary row with Somalia. From the outset, we treated the proceedings with contempt. We used millions in public funds on pricey European lawyers hired to represent us in The Hague but failed to give them proper instructions.

We also took the haughty and arrogant attitude towards what we saw as a hopeless case filed by a dysfunctional war-torn neighbour dependent so much on Kenya for its security, economic lifelines and communications links.

As if that was not enough, the State Law Office was riven by Somaliesque jurisdictional feuds between then-Attorney-General Githu Muigai and Solicitor-General Njee Muturi. Instead of mounting vigorous legal challenges in court, we dilly-dallied, filed frivolous defences and spent more time on puny courtroom politics, stonewalling, obstructionism and endless requests for delays and adjournments.

In March this year, we announced a boycott of proceedings on dubious grounds of ICJ being biased. That was seven years into a case we had faithfully and willingly participated in since the first filing in 2014!

Then a few days before the verdict of a week ago, we suddenly realised that D-Day was dawning and that our incompetent, directionless manouevres had not impressed the judges. We, therefore, announced withdrawal from the case, advance rejection of the outcome and even a halt to recognition of ICJ and other global arbitration mechanisms.

“As a sovereign nation, Kenya shall no longer be subjected to an international court or tribunal without its express consent,” concluded a Foreign Ministry statement.

Sound familiar? The statement was delivered by Foreign Affairs Principal Secretary Kamau Macharia, who, as Kenya’s Ambassador to the United Nations, had led a loud campaign against the International Criminal Court (ICC) then trying President Uhuru Kenyatta and Deputy President William Ruto for crimes against humanity arising out of the 2007-2008 post-election violence.

The shrill voices then were threatening rejection of the judgment and withdrawal from ICC for alleged interference in Kenya’s sovereignty. The irony was, the accused themselves acknowledged the case as ‘personal’ rather than indictment of the Kenyan state and had willingly surrendered themselves to the court’s jurisdiction.

It is interesting that when the court eventually discharged the co-defendants, all the jingoistic, chest-thumping histrionics against the ICC muted.

One must again wonder, after all these noises, what the reaction would have been had the maritime case judgment favoured Kenya. That now is a hypothetical question. Kenya largely lost a huge chunk of the contested 100,000 square-kilometres of Indian Ocean waters.

A casual reading shows the ruling was illogical and manifestly injust — unless Kenya’s maritime border with Tanzania to the south is redrawn on the principles established by the ICJ bench.

The tragedy is that we are not in a position to appeal a decision by a tribunal we don’t recognise. And no appeal to the United Nations Security Council will get anywhere unless we first address the failings that led to this embarrassing loss.

However, our priorities right now are on a silly jurisdictional spat where A-G Kihara Kariuki is effectively supporting money laundering suspects S. K. Gichuru and Chris Okemo in their fight against extradition to face trial in the Island of Jersey.

Meanwhile … President Uhuru Kenyatta is expected back from his Americas junket with a much-awaited explanation on the ‘Pandora Papers’ expose of First Family shenanigans in secret overseas bank accounts.

Let us remember that it’s not about the legality of public officers holding foreign accounts but the principal of those who tell us to reject corruption and pay taxes salting cash away in places that are usually the preserve of illicit funds and tax evaders. Simple.