NAIROBI, Kenya | In yet another unprecedented move, Kenya has withdrawn from the International Court of Justice [ICJ] case ahead of a hearing scheduled to begin on Monday [tomorrow]after months of postponement as requested by the Nairobi authorities.
In 2019, the case was adjourned twice and Nairobi managed to get the third adjournment in March 2020, but the court refused to issue a fourth adjournment this year, arguing that the issues raised by Kenya were not “substantive”.
And reports now show that Nairobi will not participate in Monday’s oral submission, in which the court had admitted hybrid presentation, which would have allowed both sides to present evidence physically or through a virtual presentation.
The ICJ had last week released a timetable that was to run until Wednesday next week, but last-minute withdrawal from Kenya comes with a huge shock. Neither Somalia nor Kenya have issued statements on recent developments.
But observers say the court is likely to continue the trial. Although the schedule is now for both countries, the consultation will be shortened so that the Somalia team can present their case; that is unless Kenya makes a last – minute decision to change and join.
Although Kenya does not participate in oral hearings, they believe it is not unprecedented, observers say; because there is precedent in a case involving China and the Philippines where the oral hearing took place despite the absence of one of the two parties.
When the hearing is finished this week as planned [ICJ didn’t indicate otherwise], it will take at least 4-6 months before the court makes the final verdict, observers. This is because each judge must have time to discuss the case on the basis of arguments and evidence presented
Lawyer Patrick Lumumba questions why the two sides did not choose to go to court, arguing that it was pointless for Kenya to pay millions of international lawyers millions to deal with the case. AU had tried to make such requests, but was unsuccessful.
“What is happening between Kenya and Somalia regarding the maritime border is very sad. The matter can be resolved through pragmatic political goodwill. And why are we ignoring foreign expertise and senior foreign lawyers?” He speculated.
A bench of three judges said a few months ago that any move by the government to withdraw from the case would be to the detriment of the public interest. This is after several petitioners had moved to court and sought a ruling to force Kenya to withdraw from the case.
Judges Kanyi Kimondo, Robert Limo and Anthony Mrima said, contrary to the petitioner’s claim that the lawyer’s participation in the case, which begins in June this year, is tantamount to relinquishing the country’s sovereignty, they are satisfied that non-participation will violate 156 of the Constitution of 2010.
Human rights crusader Kiriro wa Ngugi and 19 others through their lawyer Kibe Mungai had in a petition claimed that Kenya’s participation in a case for the ICJ is illegal on the grounds that the delegation of people’s sovereign powers to the executive through AG is limited and does not include participation in actions that could change Kenya’s territory and territorial waters without referring to the people through a referendum.
AXADLETM
