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Petitioners seek to block state from arguing Somalia ICJ case

They have sued the Attorney General, Foreign Affairs CS Monica Juma and the Kenya International Boundaries Office.

In Summary

• Want orders to restrain the state from further participation in the proceedings in the Maritime Delimitation in the Indian Ocean Somali and Kenya border dispute at the ICJ.

• Say Kenya's territory cannot be altered except with approval through a referendum.

Foreign Affairs CS Monica Juma in Nairobi/ENOS TECHE
Foreign Affairs CS Monica Juma in Nairobi/ENOS TECHE

Nineteen Kenyans have sued to block the government from participating in International Court of Justice hearings on the Kenya-Somalia maritime dispute.

This comes days after the ICJ released a schedule of the trial, set for September 9 to 13 at the Hague, Netherlands.

They want orders to restrain the state from further participation in the proceedings of the Maritime Delimitation in the Indian Ocean Somali and Kenya border dispute at the ICJ.

 
 
 

The 19 have sued the Attorney General, Foreign Affairs CS Monica Juma and the Kenya International Boundaries Office.

Through lawyer Kibe Mungai, they argue that if the government participates in the ICJ case, it has the potential of permitting an unconstitutional alteration of Kenyan boundaries.

They want their case to be determined before September, when the ICJ case will be heard.

“Article 5 of the Constitution of Kenya provides that the territory of Kenya consists of the territory and territorial waters comprising Kenya and any additional territory and territorial waters,” they argued.

It is their view that these provisions read together in effect mean that the territory of Kenya cannot be altered except with approval through a referendum.

“The state is actively participating in legal proceedings at the ICJ, which proceedings aim to delimit Kenya’s territory in the Indian Ocean by determining the shared boundary between Kenya and Somalia in the Indian Ocean,” reads court documents.

According to them, the stage has been set for the possibility of an effective amendment of Article 5 of the Constitution through alteration of the territory comprising Kenya through an ICJ-binding judgment.

 

The judgment will bypass the requisite approval through a referendum as required by law, they said.

 

The petitioners say Kenya is a sovereign republic with a land mass of 582,650km², a coastline on the Western Indian Ocean measuring 536km, a territorial sea stretching 12 nautical miles into the sea from the coastline amounting to 9,700km in size and the exclusive economic zone extending across the sea to a distance of 200 nautical miles amounting to 142,400km².

“In view of the foregoing from as early as the 1970s Kenya has taken various steps to determine its maritime boundaries with Tanzania and Somalia through agreements on the premise that the respective northern and southern boundaries shall run along the latitude of parallel,” the petition reads.

They claim that in 1976 Kenya made an agreement with Tanzania to determine its southern maritime boundaries whilst in 1979 Kenya- with the knowledge of Somalia- indisputable issues a presidential proclamation establishing the northern maritime boundaries up to 200 nautical miles at the parallel of latitude.

“In 2005 President Mwai Kibaki, invoking the Constitution of Kenya, issued a presidential proclamation confirming and replacing the aforesaid,” read court documents.

The foregoing notwithstanding in 2014, the Federal Republic of Somalia instituted proceedings in the ICJ to claim parts of Kenya that comprise Kenya’s territorial sea and the Exclusive Economic Zone in respect of which Kenya has indisputably exercised sovereignty since 1979, they said.

Kenya protested the jurisdiction of the ICJ to determine Somalia’s case. On February 2, 2015, the ICJ majority ruled inter-alia that Kenya had a valid MoU with Somalia to resolve the dispute through agreement but nevertheless said Somalia's case will be heard to conclusion and judgement rendered.

The recent row was triggered by Somalia’s move to market oil blocks in the contested territory.