Kenya Says it Will Not Participate in Somalia Boundary Case

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Published Mar 16, 2021 12:18 AM by Brian Gicheru Kinyua

Kenya has communicated its intent to withdraw from an International Court of Justice (ICJ) case over the status of its maritime boundaries with Somalia. The first oral hearings of the case were set to start on Monday, according to a communique by International Court of Justice (ICJ).

Over the weekend, Sunday Nation reported that Kenya decided to quit the case in protest over the ICJ’s alleged “bias and unwillingness” to delay the hearings.

“Kenya wishes to inform the court, through its 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,” shows a letter dated March 11, by Kenya’s Attorney General and seen by Sunday Nation (https://nation.africa/kenya/news/kenya-pulls-out-of-somalia-border-row-case-3322284)

Since 2017, Kenya has sought to have the case delayed for multiple reasons, first arguing that ICJ lacked jurisdiction. Kenya cited an agreement with Somalia dating back to 2009 which would amount to a commitment to settle maritime disputes between the two neighbors out of court. The judges rejected this application in February 2017.

The public hearings of the case were first scheduled to start from September 9-14 of 2019 but were pushed to November 4 after the court allowed a postponement request by Kenya. This delay was to allow Kenya to recruit a legal team. However, Kenya later appealed the November dates, requesting a one year extension. The ICJ pushed the date to June 2020, but Kenya requested another postponement due to the pandemic. This was granted, and dates were pushed to March 15, 2021.

In January, Kenya requested a fourth postponement, claiming that a crucial map it intended to use as evidence was missing. Somalia contested this move, and ICJ allowed the hearings to proceed as previously planned.

The decision to withdraw from the case stems from what Kenya claims to be bias on the part of ICJ for rejecting another postponement. Kenya asserts that its new legal team needs more time to familiarize itself with the case. The pandemic struck “just around the time that Kenya had recruited a new legal team,” said the letter. Kenya had dismissed its legal team in 2019 and hired a new team in December of that year, months before Covid-19 hit.

Kenya also protested the virtual hearings model that ICJ has adopted, arguing that the case is too complex for an online proceeding. Further, the communication by Kenya claims that Covid-19 has greatly impacted its budget with direct ramifications to its ability to prepare for and defend the case.

In addition, Kenya asserts that the participation of Judge Abdulqawi Yusuf - a Somali national who as recently as February was the Court’s president – means that the ICJ will not give it an impartial hearing.

On Monday, Presiding Judge Joan Donoghue said that the court would move ahead with the case without Kenya’s participation in hearings, and will accept written arguments from Kenya’s legal team instead.