Group wants Kenya and Somalia case stopped

President Uhuru Kenyatta with Somali President Mohamed Abdullahi Farmaajo in Mogadishu, Somalia. [Standard]
A group of 20 individuals want Kenya to decline participating in a court case that has been filed at the International Court of Justice (ICJ) involving a maritime border dispute with Somalia.

The group has argued that the case violates Kenya’s Constitution.

Through their spokesperson Kiriro wa Ngugi, the applicants begun by filing an urgent suit at the Constitutional and Human Rights Division court on June 28, seeking orders to stop the State from sending lawyers to The Hague.

Their argument is that were Kenya to lose the case at ICJ, it will have to redraw its boundaries without undertaking a referendum as stipulated in the Constitution.

Chief Justice David Maraga is expected to appoint not less than a three-judge bench to determine the case.

This is after Justice Weldon Korir ruled that the matter raises substantial questions of law, and therefore should be heard by a bench of at least five judges appointed by the Chief Justice.

Justice Korir said that the issues raised will not only affect the parties before the court, but will have a significant bearing on the interests of Kenya since they will govern how the country relates with its neighbours.

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Alter boundary

“Considering what I have said, it follows that this is a matter that is fit for certification,” ruled Korir.

Through the law firm of Kinoti and Kibe Advocates, the group argues that Kenya’s participation in the suit, in which hearings are scheduled to start on September 9, could have an unprecedented effect of altering the boundary of the country, contrary to the Constitution.

The team has listed the Attorney General, Ministry of Foreign Affairs and the Kenya International Boundaries Office has the respondents.

It continues to argue that any change on Kenya’s territory will require a national referendum as set out in Article 255 of the Constitution.

“In participating in legal proceedings at the ICJ, the aim of which is to determine with finality and in a binding manner, the maritime boundary between Kenya and Somali in the Indian Ocean, the respondents have set a stage for probability of alteration of Kenya’s territory without following the procedures stipulated in the constitution, namely, subjecting such an alteration to a referendum,” The applicants say.

Article 255 lists the territory of Kenya among 10 provisions that cannot be amended without subjecting the country to a plebiscite.

The group argues that the jurisdiction of The Hague-based court is subject to Kenya’s reservations, and must be interpreted in line with Article 2 of the Constitution, which renders laws inconsistent with it invalid.

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

Nairobi has vowed never to cede even one inch of its territory and has disputed the jurisdiction of the ICJ, even as pressure mounts on Mogadishu to withdraw the case.

Soured relations

Relations between Kenya and Somalia have soured in recent months after Mogadishu allegedly offered oil blocks in the disputed territory at a prospectors’ auction in London on February 7.

Kenya moved to ICJ in 2016 to challenge the admissibility of Somalia’s case on grounds that ICJ lacked jurisdiction over the matter, but ICJ dismissed the objection in February 2017.

Tensions between the two countries escalated in February this year after Nairobi recalled its ambassador in Mogadishu, Lt General (Rtd) Lucas Tumbo, for urgent consultations.

The Foreign Office also referred the Somali envoy, Ahmed Nur, to Mogadishu but later denied claims that the move amounted to expelling the diplomat.

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ICJ)The Hagueustice Weldon KorirSomaliaMogadishuSomali envoyAhmed NurSomali President Mohamed AbdullahiPresident Uhuru Kenyatta