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

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,

Source: Capitalfm Kenya