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Kenya wants maritime dispute case with Somalia withdrawn from ICJ

COUNTIES
By Josphat Thiong'o | March 20th 2021

Kenya now wants the maritime border dispute case with Somalia withdrawn from the International Court of Justice (ICJ) and resolved through bilateral negotiations.

This comes days after Kenya decided not to participate in the maritime delimitation case before the court.  

In a statement sent to newsrooms, the Ministry of Foreign Affairs maintained that Somalia should first normalise its relations with Kenya following their ‘unprovoked and unjustified’ decision to sever diplomatic relations.

“… Kenya reached the decision not to participate in the hearings and remains steadfast that this dispute should be withdrawn from the court and resolved through bilateral negotiations,” read the statement.

Kenya had informed the court that any insistence on its participation in proceedings, defeats her right to a fair hearing, and that it would only to participate if it was given ample time to prepare its case.  

“Kenya has collected, and continues to collect substantial additional evidence in this matter. Such evidence will be of value only if Kenya is given ample opportunity to prepare it for proper and effective presentation to the Court. The current timelines – and in the context of the pandemic – have not afforded Kenya such an opportunity,” added the statement.

The ministry further said ICJ had failed to appreciate the fact that Covid-19 struck when Kenya had just recruited a new legal team and as such they have not had preparatory meetings and engagements.

Far-reaching consequences

“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,” the statement read.

“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.”

The ministry further said that influential third party commercial interests are fueling the case, and this threatens to destabilise the peace and security of an already fragile region.

This, it said, was evidenced by the speed at which the matter was rushed before the court and the players involved in the dispute, pointing to a well-orchestrated strategy of pitting the countries against each other.

“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… from the onset, Kenya has advocated for a diplomatic solution,” added the statement.

It noted that Kenya’s preference for negotiation reflects the African Union Border Programme which encourages States to resolve disputes through bilateral negotiations or within the African Union Peace and Security architecture.

Kenya-Somalia maritime map.

Moreover, the ministry has warned that any consideration of the border claim by Somalia sets a dangerous precedent as it will not only reward the neighbouring country’s belligerent conduct but also has the potential of disturbing already established boundaries.

Notably, the boundary between Kenya and Somalia has been respected by both countries until 2014 when Somalia attempted to disown the agreement by moving to court.

“The Government and People of Kenya feel betrayed that Somalia had brought the case before the ICJ after disowning a maritime boundary that it had consented to for over 35 years. Somalia has incited hostility against Kenya, and actively contributed to the climate that encourages attacks against Kenyan civilians and forces in Somalia and even threatening their ability to continue to support Amisom,” said the Ministry.

At the same, the ministry said the decision not to participate in the ongoing maritime delimitation case was informed by the procedural unfairness at the court.

Through a letter to Philippe Gautier, the Registrar at the ICJ, Kenya re-stated that it should not have been dragged to the Court by Somalia merely because of her resurgent expansionist agenda.

Kenya also cited Somali Citizen, judge Abdulqawi Yusuf, who sits on the ICJ.

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