Bid to bar Kenya from ICJ case flops

In Summary

• The 20 petitioners had argued that the Attorney-General's participation in the case amounted to ceding Kenya’s sovereignty but the court said the converse is true.
• Three judges noted on Friday that issues raised in the petition would be more effectively resolved through diplomatic, legislative, policy and other executive interventions, rather than by a constitutional decision.
• Kenya has argued, however, that the case should not be heard at the ICJ, which it says is rigid and may not resolve political issues attached to the case.

A three-judge bench has dismissed a petition to bar Kenyan officials from participating before the International Court of Justice (ICJ) in a maritime dispute with Somalia.

Justices Kanyi Kimondo, Robert Limo and Anthony Mrima noted on Friday that issues raised in the petition by 20 Kenyans would be more effectively resolved through diplomatic, legislative, policy and other executive interventions, rather than by a constitutional decision.

The petitioners had argued that the Attorney-General's participation in the case would amount to ceding Kenya’s sovereignty.

Through lawyer Kibe Mungai, they said Kenya risked forfeiting part of its territory if the ICJ ruled in Somalia's favour.

The lawyer said the government should put its national interests first, and that the only way to do so would be by not seeking to compromise Kenya's territorial integrity.

The ruling stated, however, that, "the AG's participation in the proceedings will accord an opportunity to demonstrate to the court Kenya's constitutional impediments in implementation of the decision in the event the dispute is decided in favour of Somalia."

FINAL DELAY

Last October, the ICJ pushed the case to June 8, 2020, following a request by Kenya.

In September 2019, Kenya asked for a delay by up to a year, saying it needed time to reconstitute a legal team.

The court granted Kenya's request but warned that there will be no further delays.

LEGALITIES

Legally, Kenya cannot withdraw from the case since it is the defendant as Somalia filed the suit.

Kenya has argued, however, that the case should not be heard at the ICJ, which it says is rigid and may not resolve political issues attached to the case.

It has instead approached the African Union, seeking out-of-court negotiations.

The legal process of avoiding the ICJ is complicated as the court's permanent position as a judicial arm of the United Nations technically means all UN member states are members.

However, under certain arrangements, states may avoid the court, one approach being withdrawing from its compulsory jurisdiction.

But this has to apply on specific treaties the state has signed and which the court would normally have jurisdiction. These treaties may include the Statute of the Court itself.

DECLARATIONS

Usually, a state may make or amend its reservations on certain clauses of those treaties such that they will not apply to cases touching on it.

Traditionally, states make declarations under the Statute of the Court accepting its jurisdiction as compulsory in case there is a dispute with another state that has made a similar declaration.

Such declarations are often deposited with the UN Secretary-General.

Kenya and Somalia have each made such a declaration, which means the ICJ has jurisdiction to hear a case between them.

The other option is to withdraw from a treaty under which a country can sue another.

However, certain treaties have become more of norms than laws, meaning they don’t require member states to actually sign on to be sued.

These include treaties on human rights and right to life.