Friday July 5, 2019
The solicitor general wants a case seeking to compel Kenya to withdraw from the maritime boundary dispute at the International Court of Justice dismissed.
Kennedy Ogeto says the case by Kiriro wa Ngugi and 20 others is frivolous and an abuse of court process. The applicants are represented by lawyer Kibe Mungai.
Kenya was sued at ICJ by Somalia in August 2014 over a contested 100,000 square kilometre oil-rich triangle in the Indian Ocean.
Kenya thereafter filed a petition challenging the case on the basis that the court does not have the jurisdiction over the matter.
Kenya argued that other forms of dispute settlement are in place and the ICJ is as such locked out.
It said that Mogadishu had a treaty with Nairobi that provides for other methods of settlement.
The ICJ dismissed the objection on February 2, 2017, arguing that the MoU did not outline any method for settling the maritime boundary dispute and that in any event, it only concerned the outer limits of the continental shelf to the exclusion of other maritime areas.
Kiriro and the 19 others believe Kenya’s participation in the case, which is scheduled for hearing between September 9 and 13, could alter its boundary.
In their view, any such change ought to be subjected to a referendum as required by the Constitution.
They want the High Court to issue a declaration barring the ICJ from asserting its jurisdiction over the dispute due to "any real or alleged imprecision or lack of clarity in the MoU".
They affirmed that any perceived vagueness in the MoU "cannot negate Kenya’s reservation to the jurisdiction with the consequence of the court asserting jurisdiction by default".
The 20 believe that the government has not been dealing with the matter in accordance with the laws of Kenya.
Judge Weldon Korir will make a ruling on July 11.
The 20 say Kenya cannot continue to participate in the proceedings without irretrievable and devastating erosion, damage and compromise of the country’s sovereignty.
The court was told that even though Kenya recognised the jurisdiction of ICJ, it made some reservations.
The reservations excluded from the court’s jurisdiction in certain circumstances, among them on "disputes in regard to which parties have agreed or shall agree to have recourse to some other method of settlement".
The applicants believe the reservations were made because not all disputes are suitable for resolution through the judicial process.
Certain matters and disputes require resolution through political and diplomatic processes with requisite accommodation of sensitive positions to bring on board the conscious consent of the citizens of disputing counties to the final outcome, they said.