TROUBLED WATERS

Kenya set to disregard judgment on Somalia maritime conflict

ICJ is set to issue its judgment on Tuesday amid bias complaints by state

In Summary
  • Foreign Affairs PS complains that the court has been manifestly biased and that it insisted on jurisdiction powers that it did not have.
  • The Hague-based court consists of a panel of 15 judges elected by the UN General Assembly and Security Council on nine-year terms.
Map showing disputed maritime area.
TROUBLED WATERS: Map showing disputed maritime area.
Image: FILE

Kenya-Somalia relationship could be dented further after the state declared it won’t obey any judgment from the International Court of Justice.

The ICJ has been hearing a maritime dispute filed in 2014 by Somalia over the ownership of a 160,000 square kilometres of triangle in the Indian Ocean. The area is said to have prospects of vast oil and gas deposits.

Foreign Affairs principal secretary Macharia Kamau announced on Friday that after analysis of the court’s handling of the case, the Kenyan government had determined that the court had become an agent being used to undermine its territorial integrity.

The court is set to issue its judgment on Tuesday.

Kenya argues there is an existing maritime boundary established between the two countries since 1979, which had been respected by both parties until 2014.

Flanked by vice chief of Defence Forces general Francis Ogolla, Solicitor general Kennedy Ogeto and Defence PS Ibrahim Mohamed, Kamau asserted that just like the Shifta war, Kenya is ready to “safeguard and protect its territorial integrity.”

Kamau said the court’s handling of the case was a threat to the territorial integrity of Kenya, saying first of such attempt was “overt and direct during the Shifta War of 1967-69.”

“Then, we ably and successfully demonstrated our resolution and steadfastness in the commitment to safeguard and protect our territorial integrity. We remain resolute and steadfast in the same commitment,” he said. 

The Shifta war precipitated after attempts by some elements to have the entire North Eastern province, then known as the Norther Frontier District, secede from Kenya and be part of Somalia.

The war ended after the Somali Republic Prime Minister Muhammad Haji Ibrahim Egal signed a ceasefire with Kenya at the Arusha Conference on October 23, 1967. Over 10,000 are said to have lost their lives in the conflict.

The war-torn neighbouring country claims its maritime boundary should run in the same direction as the southeasterly path of the country’s land border.

Kenya, however, argues the border should take a 45-degree turn at the shoreline and run in a latitudinal line. This gives it access to a larger share of the maritime area.

The dispute over whether the court has jurisdiction to hear and determine the matter has raged for some time.

Kenya had in fact withdrawn from the ICJ case in March on claims of procedural unfairness at the court, betrayal and external interference.

This was after concerted efforts to have the matter resolved through negotiations collapsed. While Kenya opted for negotiations and dialogue, Somalia has supported the court litigation.

Kamau complained that the court has been manifestly biased and that it insisted on jurisdiction powers that it did not have hence unsuitable to resolve the conflict.

Kenya termed the court’s refusal to entertain its request to delay the hearings as a show of bias.

In seeking delay, Kenya argues that the Covid-19 pandemic outbreak had disoriented it defence.

It argues that the pandemic emerged when it had just recruited a new legal team to argue it case. 

Consequently, the team had not met to prepare for the case owing to the restrictive pandemic protocols.

The court rejected this request.

Kenya had also objected to the presence of Abdulqawi Yusuf, a Somali judge on the ICJ bench saying he should recuse himself. The Somali citizen had previously represented Somalia.

On Friday, Kamau said that the country has withdrawn compulsory jurisdiction from the court and will not recognise the Tuesday judgment.

The PS also disclosed that on September 24, the country had with “many other members of the UN withdrawn recognition of the court’s compulsory jurisdiction.”

“As a sovereign nation, Kenya shall no longer be subjected to international court or tribunal without its express consent.”

Kamau said Kenya had presented to the court its agreement with Somalia in 2009 to resolve the matter through dialogue and the court accepted, only to ignore it when handling the case. 

"Ironically, while the court declared our 2009 agreement with Somalia on how and when to address matters concerning the maritime boundary valid, it proceeded to ignore the same."

The court is one of the six principal organs of the United Nations and its main role is to settle disputes between states in accordance with international law and gives advisory opinions on international legal issues.

The ICJ is the only international court that adjudicates general disputes between countries, with its rulings and opinions serving as primary sources of international law.

The Hague-based court consists of a panel of 15 judges elected by the UN General Assembly and Security Council on nine-year terms.

Since the entry of its first case on May 22, 1947, it has entertained 179 cases through March 2021.

The decision by Kenya to reject the judgment of the court beforehand follows the example of the US which also rejected the compulsory jurisdiction of the court after it gave an adverse ruling against it in a case relating to U.S. military intervention in Nicaragua.

The court does not have a mechanism to enforce its pronouncements and only depends on the goodwill of parties before it to comply with rulings.

It also depends on the UN Security Council to enforce its judgment through coercive diplomacy.

Kenya holds the UN Security Council presidency in the month of October.

(Edited by Bilha Makokha)