PRESS STATEMENT ON THE MARITIME DELIMITATION CASE (SOMALIA V KENYA) AT THE
INTERNATIONAL COURT OF JUSTICE 15TH-24TH MARCH 2021
1. Kenya has decided not to participate at the Maritime Delimitation Case (Somalia v Kenya)
which is currently ongoing at the International Court of Justice. This decision is on accountof procedural unfairness at the Court. It is a decision that was made after deep reflection andextensive consultation on how best to protect the sovereignty and territorial integrity of theRepublic of Kenya.
2. In a letter to Mr. Philippe Gautier, the Registrar at the ICJ, Kenya re-affirmed that it was notproperly before the court in accordance with its acceptance of the court’s jurisdiction. Kenya
outlined that while it had no doubt about the merits of its case, procedural unfairness had
left doubt on whether substantive justice would be done. Kenya re-stated that it should nothave been dragged to the Court by Somalia merely because of the neighbor’s resurgent
expansionist agenda. Kenya also noted that the composition of the membership of the bench
conducting the case reinforced concerns of bias, citing the case of Somali Citizen, Judge
Abdulqawi Yusuf, who sits on the ICJ and who has previously represented Somalia at theThird United Nations Conference on the law of the sea. At the conference the Judge statedthat delimitation of the EEEZ and continental shelf should not be effected in accordance tothe principle of equidistance but rather by application of equitable principles.
3. Moreover, in affirming and imposing its jurisdiction on Kenya over this matter and failingto appreciate the full extent of Kenya’s reservations in its Optional Clause Declaration underArticle 36(2) of the ICJ Statute, the Court, deprived the parties of the opportunity to have thedispute resolved in a suitable, non-adversarial manner, which, in fact Somalia had itself
consented to under the 2009 Memorandum of Understanding, an instrument that the ICJ
has affirmed as a valid treaty.
4. Kenya has also informed the Court that influential third party commercial interests arefueling the case, that threatens to destabilize the peace and security of an already fragile
region. The speed at which the matter was rushed before the Court and the players involvedin this dispute, pointed to a well-orchestrated strategy of pitting the countries against eachother in total disregard to the precarious security situation in the region. Influential thirdparties are intent on using instability in Somalia to advance predatory commercial interests
with little regard to peace and security in the region.
5. Kenya remains confident in its position that there is an existing maritime boundary that wasestablished in 1979. The boundary as established has been respected by both Countries until
2014 when Somalia attempted to repudiate the agreement by dragging Kenya to theInternational Court of Justice seeking to appropriate Kenya’s maritime space.
6. From the onset, Kenya has advocated for a diplomatic solution. Kenya’s preference fornegotiation reflects the African Union Border Programme which encourages States to resolve
disputes through bilateral negotiations or within the African Union Peace and Security
architecture.
7. Kenya has provided the Court with a comprehensive background to Kenya - Somalia
relations underscoring Kenya’s longheld commitment to peaceful and friendly relations
despite Somalia’s intransigence and territorial ambitions against Kenya. It undisputable that
the Government and people of Kenya have made great sacrifices for their Somali neighbours.
Kenya has provided humanitarian relief to hundreds of thousands of Somali refugees. Its
military has protected the Somali Government from terrorists. The Somali Government washosted in Nairobi for several years because of insecurity in Mogadishu. It enjoyed generous
financial, diplomatic, and military support from Kenya. Its gradual return to Mogadishu wasmade possible thanks to the thousands of Kenyan and regional troops in the African Union
Mission in Somalia (“AMISOM”).

8. Hundreds of Kenyan civilians and security personnel, including a number of Kenyan soldiers,
have lost their lives due to, or in the fight against, the Al Shabaab terrorist group. The Kenyan
Navy has also played an active role against terrorist activity and piracy off the Somali coast.
The UN and the African Union have recognized Kenya’s “huge” and “extraordinarysacrifice” in support of their Somalia.
9. The Government and People of Kenya said feel betrayed that Somalia had brought the casebefore the ICJ after repudiating a maritime boundary that it had consented to for over 35years. Somalia has incited hostility against Kenya, and actively contributed to the climate thatencourages attacks against Kenyan civilians and against Kenyan forces in Somalia and eventhreatening their ability to continue to support AMISOM. Somalia has also undermined thefundamental need for stability and predictability of boundaries among States.
10. Any consideration of this equidistant claim sets a dangerous precedent as it will not only
reward Somalia’s belligerent conduct but also has the potential of disturbing alreadyestablished boundaries.
11. Kenya’s concerns have also been exacerbated by previous decisions taken by the Court which
has created a perception of unfairness and injustice towards Kenya including amendment by
the Court to its rules to allow for hearings to be conducted via video link without consultationof member states prior to the issuance of the hearing dates for this case. Kenya has
consistently communicated to the Court its reasons for seeking a deferment of the caseincluding the COVID-19 pandemic conditions that hampered Kenya’s ability to prepare
adequately for the hearing.
12. The COVID19 pandemic struck when Kenya had just recruited a new legal team. As such,Kenya and its legal team have not had an opportunity to have preparatory meetings andengagements. The court has failed to appreciate that Kenya is exactly where it was at thebeginning of 2020 with regard to its compilation of its international legal team. Without
such necessary preparations, Kenya is of the considered view that any participation in thehearing will be nothing more than a perfunctory, cosmetic and symbolic exercise. The
seriousness of the case requires proper and adequate preparation. In Kenya’s view, it would
be ill-advised for it to participate in a complex case with far-reaching consequences, without
such proper and adequate preparation. These and other related matters have forced Kenya
to stand back from the court and to continue to insist that the resolution of this border disputebelongs in its rightful place on the bilateral and or continental platform.
13. It is in view of the foregoing well elucidated reasons that Kenya reached the decision not toparticipate in the hearings and remains steadfast that this dispute should be withdrawn fromthe Court and resolved through bilateral negotiations. Kenya also expects Somalia tonormalize its relations with Kenya following their unprovoked and unjustified decision tosever diplomatic relations with its neighbour. Somalia has to normalize its relations withKenya before it can engage on any platform anywhere in the world with any person and or
agent of Kenya through any proxy.
14. Kenya has informed the Court that any insistence on its participation in the proceedings,
defeats Kenya’s right to a fair hearing. Kenya has collected, and continues to collectsubstantial additional evidence in this matter. Such evidence will be of value only if Kenya isgiven ample opportunity to prepare it for proper and effective presentation to the Court. The
current timelines – and in the context of the pandemic – have not afforded Kenya such anopportunity.
18th March, 2021