The International Court of Justice will, next week, once again review Kenya’s request for a 12-month delay of the public hearing in its maritime boundary case with Somalia.
On Thursday, Kenya’s Office of the Attorney-General asked the Court, based at The Hague, Netherlands, to grant a year’s postponement in what officials argue would be sufficient time to prepare.
The move came after the ICJ had initially granted a two-month delay for the public hearings earlier scheduled for September 9 but moved to November 4.
Kenya’s Foreign Affairs Permanent Secretary Macharia Kamau told The EastAfrican the time granted by the Court was not enough for Nairobi to prepare.
“It is the same request for the 12-month postponement that was being revisited, at the invitation of the Acting President of the case, because we only got 55 days last time which is simply unworkable for Kenya,” he said from The Hague where he accompanied Solicitor-General Ken Ogeto and other state counsel. The decision on the new request should come “very soon,” he said.
Somalia has opposed Kenya’s request from the start, and Wednesday’s meeting which was some sort of a conference of parties to the case was supposed to broker an amicable solution.
In September, Kenya had asked the ICJ to delay the case arguing it needed time to recruit a new legal team.
“Due to exceptional circumstances, occasioned by the need to recruit a new defence team, Kenya has sought to have the matter postponed,” AG Kihara Kariuki’s office said at the time.
“The Rules of the Court allows for postponement of the hearing of the case to afford the parties an opportunity to be represented.”
Somalia sued Kenya at the ICJ, the UN’s principle Court, seeking to change the flow of the maritime boundary from the current eastwards direction from the land border at Kiunga, to a diagonal flow, threatening Kenya’s sea stake.
Prof Payam Akhavan from the US, Prof Vaughan Lowe QC from the UK, Prof Alan Boyle (British), Prof Mathias Forteau (French), Mr Karim Khan (British) and Ms Amy Sanders (British) had been Kenya’s counsel in the initial stages of the case.
Somalia’s Deputy Prime Minister Mahdi Gulaid argued the two-month extension should have been sufficient for Kenya to be ready.
Under Article 54 of the Rules of the Court, parties to a case may request the bench to alter the date fixed by the Court, “should occasion arise” to either delay the public oral sessions or stop those already going on until a later date.
The issue at hand though, is that Somalia has rejected Kenya’s call for out-of-court settlement.
Although the ICJ ruled it had jurisdiction over the matter when it admitted the case; the tradition is that the Court may be forced to discontinue the case should the parties agree to withdraw it.
At the UN General Assembly in New York, President Mohamed Farmaajo rejected his Kenyan counterpart Uhuru Kenyatta’s call for talks.
Farmaajo claimed that talks between the two countries had “completely collapsed” adding that the Court would be the ultimate arbiter.
Though Kenyan diplomats wouldn’t formally confirm his claims, Nairobi's desire is that thawing of relations between Nairobi a Mogadishu will enable frequent contacts, and a change of heart.
Kenya is also banking on the African Union Chairperson to appoint a mediator, as directed by the African Union Peace and Security Council, to help broker a solution.
Under the rules of the Court, a case may be truncated if another state, for example, seeks its permission to intervene in a dispute if it considers that it has an interest of a legal nature in the case, which might be affected by the decision made.
The other option is for the suing state, in this case Somalia, to inform the Court that it does not wish to continue the proceedings, or the two parties may declare that they have agreed to withdraw the case.
Normally, the public hearings in a case at the ICJ is the penultimate stage, after which the 15-judge bench deliberates in private for some time before publishing the verdict.
This judgment is final, binding on the parties and has no option for appeal. However, the decision is often based on interpretation and the judges may amend the verdict, and judges may change their viewpoints, if a new fact is realised later. Decisions of the Court are implemented by the UN Security Council.
Kenya has argued the Court makes rigid conclusions which have no room to include political implications, and that it could end up damaging relations between the parties.
For Somalia, the case has raised nationalistic political tones in the country and President Farmaajo’s re-election could in fact bank on it.
“If he wins the case, his political profile could rise significantly. In a country where incumbents have not been re-elected in the recent past, that could be an important issue for him,” said Sheikh Abdiwahab Abdisamad, Horn of Africa commentator and head of the South link Consultants in Nairobi.
“So this is not just a legal issue. It is also political.”
Somalia is scheduled to hold elections in early 2021. Ever since the Transitional Government was set up, incumbents have not always been voted back.
Partly because Somalia uses a type of electoral college system where elders nominate delegates who vote for MPs who then vote for the President.
It is also about clan balancing act. In the previous cases, politicians who were part of the controversial 2009 MoU signed between Kenya and Somalia to resolve the case through the UN Commission on the Law of the Sea, were voted out.
But there is another thing: Somali Judge Abdulqawi Ahmed Yusuf is the President of the Court and his term as a judge ends in early 2020.
Traditionally, the 15 judges of the court constitute a bench, regardless of whether the matter concerns the countries they come from.
This has raised a storm of possible bias although Nairobi has not formally written to the Court to protest the issue.