Kenya has notified the International Court of Justice that it will not participate in the maritime case against Somalia just a day before it is scheduled to begin. Kenya has cited the court’s perceived bias and its unwillingness to delay the case – for a fourth time – due to the pandemic as the main reason for withdrawing from the legal proceedings.
Kenya’s Attorney General, Paul Kihara Kariuki, notified the ICJ of the decision to pull out in a letter written on March 11 to Phillippe Gautier, the court’s registrar.
“Kenya wishes to inform the court, through the Registrar, that it shall not be participating in the hearings in the case herein, should the same proceed from March 15, 2021, as presently scheduled,” the letter from Kenya’s attorney general states.”
Despite Kenya’s withdrawal, the ICJ can still proceed with the case and render a verdict since Kenya has already submitted its written arguments to the court.
Kenya, who referred to the move as “unprecedented in its history in relation to any international adjudication mechanism,” told the court that its latest legal team did not have adequate time to prepare for the case. Various Kenyan media outlets reported that top-level international lawyers were brought in to lead the maritime case in late February 2021, just weeks after the court rejected Kenya’s request to have the maritime delimitation case with Somalia postponed for the fourth time. Kenya added that the global pandemic had stripped it of financial resources to fund the case.
“The consequence of this is that Kenya and its legal team were deprived of the opportunity of having necessary preparatory meetings and engagements, ” Mr. Kariuki states.
In addition to the refusal to postpone the proceedings further, the letter to the ICJ cited further causes to justify its withdrawal from the international court.
Kenya objects to the hybrid format the hearings will be held in due to the current COVID pandemic, although some members of the court will attend the oral proceedings in person. Kenya argued that since its defence is based on demonstrations, the current format is “unsuitable for the hearing of a case as complex and as important as the present one.” The court said that the representatives of the parties involved in the case would participate either in person or by video link.
“Since the case is not urgent for any reason, Kenya least expected that the court would make this into the first cause to heard on its merits via video link, despite one party’s sustained, well-grounded objections, Kenya stated.
In building its case for withdrawal, Kenya wrote to the ICJ that one of its jurists, Abdulqawi Ahmed Yusuf, could potentially curry favour in support of Somalia. Yusuf, a Somali national was President of the Court until February this year .
“Kenya’s concerns and perception of unfairness and injustice in this matter are exacerbated by the inexplicable rejection of Kenya’s preliminary objections to this court’s jurisdiction and the dismissal of the request for the recusal of Judge Abdulqawi Ahmed Yusuf, given his past exposure, on behalf of Somalia, o the issues in this case. This is notwithstanding the fact that Kenya has taken extensive measures that are illustrative of its good faith and seriousness in defending this case, including by filing pleadings within the timelines directed by the court.”
Somalia launched legal proceedings against Kenya at the international court based in The Hague in August 2014 after talks with Kenya failed to settle the dispute. The case has fuelled the diplomatic fallout between the two East African neighbours.
Somalia dispatched its team led by Deputy Prime Minister Mahdi Guled last week. Guled expressed confidence that his country was winning the case.
“Our duty is to unite and defend our land and our real estate, which is a historic responsibility and the most precious legacy we will leave to future generations of Somalis,” said the deputy prime Minister before departing from Mogadishu.
The ICJ is tasked with deciding who has jurisdiction over the 62,000 square-mile triangle in the Indian Ocean, which is believed to be rich in hydrocarbons. Neither party can appeal the decision. The court will then rely on the UN Security Council, of which Kenya is a non-permanent member, to enforce the ruling
ICJ to hear Somalia, Kenya maritime case despite Nairobi withdrawal
The International Court of Justice is scheduled to begin hearing the oral arguments in the maritime dispute between Somalia and Kenya, despite the latter pulling out of the proceedings in protest after being denied a fourth extension to postpone the case.
In a rare move, Kenya informed the court earlier this week that it would not be participating in the oral arguments, citing its unpreparedness brought on by the global pandemic and the presence of Abdulqawi Ahmed Yusuf, a Somali national, on the international court’s bench.
Somalia’s legal team will present its oral arguments first, between 3 PM and 6 PM on Monday and will continue its presentation on Tuesday between 3 PM and 4:30 PM.
The ICJ will hold the hearings in a hybrid format – another feature Kenya objected to – in light of the COVID pandemic. The hearings will be aired on a Livestream on the court’s website and UN Web TV.
Somalia launched legal proceedings against Kenya at the international court based in The Hague in August 2014 after failing to settle the issue through diplomatic channels. Kenya questioned whether the court had jurisdiction to hear the case, pointing to the 2009 MOU signed with Somalia’s then Minister for National Planning and International Cooperation, Abdirahman Abdishakur. The court rejected that claim and ruled in June 2019 that the court was within its legal rights to adjudicate the case. Since then, the issue has been delayed and postponed several times at Kenya’s request.
At stake is a potentially lucrative, triangular stretch of 100,000 square kilometres of offshore territory believed rich in hydrocarbons and fish.
Despite Kenya’s withdrawal, the ICJ can still proceed with the case and render a verdict since Kenya has already submitted its written arguments to the court. The ruling cannot be appealed, but its enforcement relies on the UN Security Council, of which Kenya is a non-permanent member.
Somalia sends team to The Hague ahead of maritime hearing case against Kenya
Somalia has dispatched its team to The Hague for the maritime case with Kenya which is set to resume on March 15. Deputy Prime Minister Mahdi Guled alongside Attorney General Suleiman Mohamud and ambassador Yusuf Garad departed for the Hague on Monday.
Former Attorney General Dahir Ahmed who had been part of the case since 2015 was also part of the delegation. The case, which commenced in 2014, is heading to the tail end upon which the UN court is expected to give its verdict. The ICJ ruling is not open for appeals.
The maritime, a case that has since become a point of diplomatic fallouts between Kenya and Somalia has been postponed three times in the past in favour of Kenya’s pleadings. The court, however, dismissed another prayer by Kenya in February to further delay the case.
Somalia has engaged the services of three lawyers namely, Paul Richler (US), Prof. Philippe Sands (UK) and French lawyer Professor Alain Pellet.
Somalia rejects Kenya’s bid to postpone maritime case
Somalia has rejected a request by Kenya to have the maritime case at the Hague based court postponed.
Mogadishu on Thursday said it wants the case on the maritime delimitation within the Indian Ocean to proceed without further delay.
Information Minister Osman Dubbe said Mogadishu has already petitioned the International Court of Justice (ICJ) to reject Kenya’s request for the postponement of the case for the fourth time.
“We have rejected Kenya’s fourth request to the ICJ to postpone the two countries’ maritime case,” Dubbe said.
“We have rejected Kenya’s fourth request to the ICJ to postpone the two countries’ maritime case. Justice delayed is justice denied. We should be set to head to the Hague court on the 15th of March come what may. Long live Somalia,” Dubbe posted on his Twitter.
Oral arguments for the case were set to take place from March 15 to 19 at the ICJ which is the principal judicial organ of the UN.
Kenya last month petitioned the International Court of Justice (ICJ) to postpone the public hearings as it protested at a missing map crucial to its case.
Nairobi further objected to proceedings via video link, arguing Covid-19 has frustrated Kenya’s preparations for the case and insisting only in-person hearings would guarantee a level playing field
Attorney-General Kihara Kariuki in a letter dated Jan 28 said Nairobi shall not participate in a hearing as a mere formality, given “grave dangers to the country’s national security” depending on the outcome of the case that was filed in 2014.
” Kenya will be unable to defend itself “fairly, fully and transparently” if the scheduled hearing proceeded by video link,” read part of the letter.
Kariuki in the letter further cited the lack of substantive government in Mogadishu since the current terms of both Parliament and President Mohamed Farmajo have expired as well as the COVID-19 pandemic as the reasons it wants the case postponed.
However, Dubbe said any postponement of the case would be another setback for international justice.
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