Kenya has petitioned the International Court of Justice (ICJ) to postpone public hearings on the Indian Ocean boundary dispute with Somalia scheduled for next month, even as it protested at a missing map crucial to its case.
The government has objected to proceedings via video link, arguing Covid-19 has frustrated Kenya’s preparations for the case and insisting only in-person hearings at the Peace Palace — the seat of the court — would guarantee a level playing field.
Kenya has informed the court that it 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.
In an application for postponement of the case dated January 28, Attorney-General Kihara Kariuki says Kenya will be unable to defend itself “fairly, fully and transparently” if the scheduled hearing proceeded by video link.
Effects of travel bans
Kenya contends its new legal team, recruited in January last year, has faced difficulties since the pandemic struck the country in March, as travel bans stopped its foreign lawyers from meeting their local counterparts and also hampered efforts to collect material evidence.
Another concern by the Kenyan government is a missing document authorities say is critical to Kenya’s case.
“While the adverse effect of the pandemic has occasioned Kenya’s inability to access this document and other additional material evidence that it hoped to secure for presentation to the court in advance of hearing, Kenya has nevertheless gathered significant evidence, which it wishes to present to the court,” Mr Kariuki writes in the letter addressed to Mr Philippe Gautier, the court’s registrar.
The missing map apparently indicates the maritime boundary with Kenya and the chart had been referenced in the maritime law that Somalia had submitted.
However, that chart is not attached to the law (statute) Somalia presented. It claims that the chart was "destroyed."
Kenyan officials believe the chart has been deliberately concealed because it supports Kenya's case.
“Isn’t it strange that the map has mysteriously disappeared and we can’t seem to find it anywhere? We suspect our neighbours have a hand in its disappearance,” a senior Kenyan official told the Nation Wednesday.
The government says it had wanted to undertake additional archival research to strengthen its case but the pandemic had hampered the work of researchers.
Kenya argues there is no urgency to hear the case in view of the challenges posed by the pandemic and that a virtual hearing is not suitable for the presentation of Kenya’s case, which depends on maps.
Open court hearing
It has pleaded that the hearing be postponed until in-person hearing can be safely held when the pandemic subsides, which Kenya observes might not be too long because vaccines are being distributed globally.
Kenya wants an open court hearing in which its leaders and counsel are seen collectively presenting the country’s position to the 15 judges.
It argues a virtual hearing favours Somalia, which has been ready for the hearing since September 2019 while Kenya only recruited the new legal team in January, last year.
The new lawyers have faced difficulties preparing for the oral proceedings due to the pandemic as several members of the team fall within groups identified as being at high risk of severe illness from Covid-19.
Affected by Covid-19
Kenya also says some staff at the AG’s office have been affected by the pandemic.
Besides Covid-19 restrictions stopping travel by external lawyers, Kenya says it has also diverted scarce resources from work on the case to help Kenyans facing the serious threat of the pandemic, which has caused revenues to fall and prompted the country to seek debt relief.
The case was scheduled for a convectional hearing in June last year, but the court notified Kenya on May 19, last year of the decision to postpone the oral proceedings to March this year, “in light of the exceptional circumstances related to the Covid-19 pandemic”.
Kenya argues at that time, it had been anticipated that the pandemic would have been tackled by early this year to facilitate a hearing but that is not the case today as the virus continues to wreak havoc, with a new strain devastating nations.
On December 11, Kenya informed the court of the deteriorating Covid-19 situation and the impact it has had on preparations for the hearing by the legal team.
The court’s registrar informed Kenya on December 23 of the court’s decision to hold next month’s hearing by video link, an arrangement Kenya has protested was arrived at without its consent, which it contends is a break from practice.
‘Virtual session favours Somalia’
Kenya has protested the virtual session favours Somalia whose case is based on the presentation of a “simple geometric method” and is prejudicial to Nairobi’s case, which requires “complex presentation."
The AG has submitted that Kenya needs to make a complex demonstration of numerous historical documents, maps and other information that is not suitable for presentation by video link.
Kenya insists on having counsel in the Peace Palace to address judges directly while simultaneously presenting visual evidence with the support of proximate technical staff.
This, Kenya argues, is “critical to a fair and full presentation of Kenya’s case and cannot be undertaken adequately by counsel and support staff scattered across the globe”.
“This case is of great importance to the people of Kenya; they perceive it as speaking directly to their sovereignty and their sovereign rights, especially in a context where there are grave dangers to Kenya’s national security depending on the outcome of the case.
“Consequently, it is expected that the people of Kenya will follow closely the proceedings at the court, and it is important that they have full confidence in whatever decision is reached.”
Kenya insists oral proceedings through video link are critical in extreme situations like request to the court for interim protective measures, but the government argues the current case cannot be characterised as an urgent matter hence there is no prejudice to either sides if the hearing is postponed.
Somalia instituted proceedings against Kenya at the ICJ on August 28, 2014, over the dispute that concerns “the establishment of the single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zone … and continental shelf, including the continental shelf beyond 200 nautical miles”.
Somalia’s claim is that in the territorial sea, the boundary should be a median line, since there are no special circumstances that would justify departure from such a line.
The Horn of Africa nation’s argument is based on the use of the equidistance principle as the method of determining states’ maritime boundaries.
Kenya, on the other hand, contends that the maritime boundary should be a straight line emanating from the States’ land boundary terminus, and extending due east along the parallel of latitude on which the land boundary terminus sits, through the full extent of the territorial sea, the EEZ and continental shelf, including the continental shelf beyond 200 miles.
Kenya’s argument is based on the parallel of latitude as the maritime boundary. Kenya’s case is that a boundary along the parallel of latitude has developed through the consent of Somalia since 1979.
Since Somalia never protested for that long, Kenya contends that a boundary was established by a tacit agreement between the two states.
This week Judge Joan Donoghue from the United States was elected president of the ICJ, replacing Judge Ahmed Yusuf, a Somali, who has been at the helm of the court since 2018.
Kenya unsuccessfully petitioned Justice Yusuf to withdraw from the hearing of the case citing conflict of interest but he declined.
Others judges are Yusuf, Peter Tomka (Slovakia), Ronny Abraham (France), Mohamed Bennouna (Morocco), Antônio Augusto (Brazil), Xue Hanqin (China), Julia Sebutinde (Uganda), Dalveer Bhandari (India), Patrick Robinson (Jamaica), James Crawford (Australia) Nawaf Salam (Lebanon), Iwasawa Yuji (Japan) and Georg Nolte (Germany).
Somalia has opposed Kenya’s request for suspension of the case, alleging a scheme to further delay the hearing of the case.
Somalia also alleges that Kenya is using the postponements as an opportunity to pressurise Somalia into withdrawing the case.
Kenya denies the allegations, arguing diplomatic efforts cannot be portrayed as bullying.
The court is expected to rule on Kenya’s application for postponement of the case any time.