Kenya accuses the International Court of Justice of “procedural injustice” in the maritime case

FROM AGGREY MUTAMBO

Kenya accuses the International Court of Justice of “procedural injustice” after allowing oral hearings despite Nairobi’s protests.

Oral hearings started Monday and lasted through Thursday, and Somalia was allowed to use slots for Kenya to argue that a sea border should be redrawn between them.

However, on Friday, Nairobi said it was calling for the case to be withdrawn as it was heard in front of a bank, a bank that did not trust it.

“Kenya has shown that while it had no doubt about the merits of its case, the procedural injustice cast doubts as to whether material justice would happen,” the State Department said in a statement.

“Kenya reiterated that it shouldn’t be brought to justice by Somalia just because of the neighbour’s resurgent expansion agenda.”

In a letter to ICJ Chancellor Philippe Gautier, Kenya previously demanded that Somali judge Abdulqawi Yusuf be rejected from the case.

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Judge Yusuf, a Somali lawyer trained in France, has been on the case since it was first filed in 2014, despite reservations from Kenya.

In a statement attached to a 2017 ruling that allowed the case to be heard, Judge Yusuf criticized both Kenya and Somalia for signing an MoU that they failed to draft.

“Today, no government can afford to sign a bilateral legal instrument that it has not carefully negotiated or to which it has barely contributed,” he said in February 2017.

Kenya-Somalia Agreement

Mr Yusuf, the then Vice-President of the Court, had endorsed the judgment in admitting the case but felt it necessary to provide a further explanation on the nature of the document.

He finished his tenure as president of the court in January but is still on the bench.

Given the painful history of a colonial past, African countries should pay particular attention to the content of such agreements.

“To that end, they need to develop and use their own expertise to negotiate, draft, and advise the rules and obligations of international law they wish to join.”

Judge Yusuf was referring to an agreement signed with Kenya with Somalia to negotiate the maritime border through the United Nations Commission on the Law of the Sea.

The Somali parliament rejected the document drafted by the Norwegian diplomat Hans Wilhelm Longva.

However, the court described the document as a valid bilateral treaty but said it did not prevent the parties from using alternative means of settling the dispute.

Kenya also noted that the composition of the members of the bank that led the case heightened concerns about bias, referring to the case of Somali citizen, Judge Abdulqawi Yusuf, sitting in the International Court of Justice and Somalia previously at the third conference of the United Nations has represented the law of the sea, “said the Foreign Ministry.

“At the conference, the judge declared that the demarcation of the EEZ and the continental shelf should not be based on the principle of equidistance, but should be based on fair principles.”

Political tension

After hearing Somalia’s arguments, the judges should begin their deliberations and draft a judgment.

But the case is now likely to create additional political tension after Kenya accuses the court of imposing jurisdiction on Nairobi.

Prior to the hearings, Kenya’s Attorney General Kihara Kariuki wrote to the court saying that Kenya was not ready because it could not assemble its legal team. It was also argued that there was no urgency in the case, which raised suspicions that third parties were pushing Somalia to continue the case.

“The speed with which the matter was brought to court and the actors involved in the dispute showed a well-coordinated strategy of pitting countries against each other, completely ignoring the precarious security situation in the region,” the ministry said.

“Influential third parties want to use the instability in Somalia to advance predatory trade interests without regard for peace and security in the region,” she added, without specifying.

Controversial area

The disputed area covers 100,000 km2 of sea, in which lucrative hydrocarbons and fish are suspected.

Kenya wants the border to flow east on a parallel line of latitude, as it does today, while Somalia argues that the line should flow southeast on an equidistant line.

While Kenya can’t stop judges from passing a verdict now, the next phase could be how the two countries can come together to finally draw the line.

Kenya says it will continue to push for a “diplomatic solution” but Somalia must first normalize diplomatic relations, which it cut last December, leaving Kenya vulnerable to attacks by the Al-Shabaab terrorist group.

“Kenya also expects Somalia to normalize its relations with Kenya following its unprovoked and unjustified decision to sever diplomatic relations with its neighbor,” the ministry said.

“Somalia needs to normalize its relations with Kenya before it can work on a platform anywhere in the world with a person and / or representative of Kenya through a proxy.”

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