BOUNDARY DISPUTE

Kenya case at ICJ: Somalia is 'ungrateful expansionist neighbour'

Kenya accuses the court of bias in the case about a 160,000 square kilometre triangle in the Indian Ocean

In Summary
  • Kenya will state that it was not given adequate time to prepare for the case.
  • The country will further argue that the presence of Judge A. Yusuf, a Somali national, as part of the bench to hear the case has the potential for bias.

Kenya will on Thursday evening argue its case in the maritime boundary dispute with Somalia at the International Court of Justice  in The Hague.

Kenya's talking points seen by the Star show the country will at the onset regret being dragged to the court by “an ungrateful neighbour, motivated by an expansionist agenda”.

Lawyers will further argue that ICJ's exercise of jurisdiction over Kenya in the case is against the country's consent.

Kenya will explain that the court’s jurisdiction over states is based on consent.

“In giving its consent in 1963 to the Court’s jurisdiction over it, Kenya was clear that such consent shall not extend to disputes over which the parties to the dispute have agreed to other methods of resolution,” Kenya will state.

The explanation will be that Kenya and Somalia had entered into a Memorandum of Understanding in 2009, to resolve issues around the maritime boundary.

The United Nations’s highest court on Monday begun hearings on a maritime boundary dispute between Somalia and Kenya, after years of delays in a case that has strained diplomatic relations.

Kenya accuses the ICJ of bias in the case, which concerns a 160,000 square kilometre triangle in the Indian Ocean. The area is thought to be rich in oil and gas.

The country will further argue that the presence of Judge Abdulqawi Ahmed Yusuf, a Somali national, as part of the bench to hear the case has the potential for bias.

Kenya will point out that the court has, without any justification, rejected the country's requests for the recusal of Yusuf.

Kenya will further state that it was not given adequate time to prepare for the case.

The court postponed the hearings to allow Kenya to recruit a new legal team. The team was recruited in January 2020.

However, the Covid-19 pandemic struck and the team’s ability to hold preparatory meetings was hampered. The pandemic continues to subsist.

“Kenya’s ability to gather additional relevant and material evidence was also hampered by the pandemic conditions, since access to most libraries and archives remains restricted,” the country will argue.

Kenya will state that, unlike Somalia which has always been ready for the hearings since September 2019, it has not had any real opportunity to prepare for the hearings since it engaged a new legal team in January 2020.

“Since this case has no urgency, it is not clear why the court wishes to proceed without allowing Kenya the opportunity to prepare for the hearings” it will be noted.

Kenya will further state its reasons for the unsuitability of hearings via video link.

Scheduled to run until March 24, the public hearings at the International Court of Justice in The Hague are being held in a “hybrid format” due to the coronavirus pandemic.

Lawyers will argue that Kenya's presentation is heavily based on demonstratives such as maps.

“This case is too complex and important to be heard on the Internet. Other than the fact that Internet connectivity is unreliable, a hearing by video link will deny Kenyans the opportunity to follow the conduct of such a critical case of national importance,” Kenya will argue.

Some representatives have been attending the proceedings in person while others participated remotely via a video link.

The dispute between the two East African countries stems from a disagreement over which direction their border extends into the Indian Ocean.

Somalia argues its maritime boundary should run in the same direction as the southeasterly path of the country’s land border. In contrast, Kenya claims the border should take a roughly 45-degree turn at the shoreline and run in a latitudinal line. This gives Kenya access to a larger share of the maritime area.

-Edited by Sarah Kanyara