BY SAM ALFAN.
Kenya justified its full participation in the boundary dispute with Somalia at The Hague-based International Court of Justice (ICJ).
In response to a petition seeking to bar from participating in the maritime dispute, Solicitor-General Kennedy Ogeto explained that the State Law Office, the Foreign Affairs ministry and the Kenya International Boundaries Office “have been taking steps whose ultimate aim is the protection of Kenya’s territorial integrity and political independence as a constitutional democracy.”
Attorney General through lawyer Paul Nyamondi told the court that the Government shared concerns raised by the 20 citizens that the ICJ should not have asserted jurisdiction to adjudicate the dispute.
Lawyer Nyamondi added that Kenya was categorical that “the proposed practical option of Kenya withdrawing from the case before the ICJ is untenable at this point in time.”
The country’s sovereignty was a paramount constitutional edict, he said, and the Constitution binds all public officers to observe national values and principles of governance, including the rule of law.
“Abiding by the rule of law certainly includes participating in court proceedings in which the respective courts have affirmed their jurisdiction over the subject matter, despite a party’s objections having been overruled,” Nyamondi said.
“The fact that the Constitution defines the territory of Kenya and requires that any alteration to the territory must be subjected to a referendum under Article 255 of the Constitution, juxtaposed with the fact that the ICJ has asserted jurisdiction over the maritime boundary dispute, Kenya is now required to participate in the ICJ proceedings.” Ogeto said.
Ogeto added that this means that a balance must be struck between these positions.
Ogeto asserted that the participation of top government officials in the dispute was not a manifest violation of any of Kenya’s internal rules of fundamental importance.
There was no basis for accusations that they have surrendered Kenya’s sovereignty to the ICJ and other entities, or acting in violation of the Constitution, he pointed out.
“Kenya’s continued participation in the ICJ proceedings concerning the maritime boundary dispute is a function of Kenya’s constitutional identification as a democracy founded on the rule of law, and committed to the peaceful settlement of disputes between it and other states, as required under international law, which Kenya’s Constitution itself domesticates,” Ogeto said in an affidavit.
He urged High Court Judge Weldon Korir to dismiss an application by lawyer Kibe Mungai, for the aggrieved citizens, to have Chief Justice David Maraga to appoint an expanded bench to handle the petition.
The contentious boundary dispute has been set for oral hearings between September 9 and 13 at the Peace Palace, The Hague.
A Lobby group Foundation for Dialogue and 19 individuals filed case in court seeking to stop government from defending a case filed by Somalia government against Kenya at the International Court of Justice (ICJ).
The petitioners argue that treaties and laws that Kenya agreed to between 1965 and 2009 removed maritime boundaries from the list of issues that can be determined at the ICJ.
They add that a 2009 memorandum of understanding between Kenya and Somalia resolved to have any maritime boundary disputes between the two nations resolved through negotiations and bilateral talks.
Justice Korir will deliver his ruling on July 11.