High Court of Kenya refuses to bar the Attorney-General from participating in the International Court of Justice

Summary
In Kiriro wa Ngugi and others vs the Attorney General and others [2020] eKLR, the High Court of Kenya (the High Court) decided on the question whether the Government of Kenya, through the Attorney General (the first respondent) should continue to participate in proceedings before the International Court of Justice (the ICJ). The High Court refused to bar the Government from participating in the ICJ proceedings.

Background
Somalia instituted proceedings against Kenya on 28th August 2014 in Maritime Delimitation in the Indian Ocean (Somalia v Kenya) before the ICJ. Somalia requested the ICJ to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including in the continental shelf beyond 200 nautical miles. It also requested the Court to determine the precise geographical coordinates of the single maritime boundary in the Indian Ocean. At the ICJ, Kenya stated that Somalia and Kenya had entered into an MoU dated 7th April 2009 (the MoU) which, according to Kenya, was an attempt by the disputants to resolve the maritime dispute peacefully and based on the MoU, Kenya raised the preliminary objection at the ICJ that was two-pronged: Firstly that the ICJ lacked jurisdiction; and, secondly, that Somalia’s application was inadmissible. The objections were both dismissed on the following grounds: That the MoU between Kenya and Somalia did not outline any method for settling the maritime boundary delimitation dispute between the two states; and, that in any event, the MoU only concerned the outer limits of the Continental Shelf to the exclusion of other maritime areas. ICJ also found that Part XV of the UNCLOS does not fall within the reservation by Kenya on the ICJ’s jurisdiction because under Article 282 of the UNCLOS, Kenya’s Optional Clause Declaration of consent to the ICJ prevailed over the rest of Part XV of UNCLOS.

The petitioners’ contended in the High Court that the ICJ had usurped jurisdiction; and, that the participation in the proceedings by the respondents contravened the Constitution. They thus sought, among other reliefs, for a permanent injunction to restrain the respondents from further participation in the ICJ case.

The petition, in typical Kenyan fashion, prayed for the following orders:

a) That a declaration be issued to declare that the Respondents’ participation in the Maritime Delimitation in the Indian Ocean (Somalia v Kenya) case at the International Court of Justice is unconstitutional to the extent that the same has as one of the probable outcomes, the final alteration of Kenya’s territory without a referendum as required by the Constitution of Kenya;

b) That an order of permanent injunction be issued restraining the Respondents from participating in the Maritime Delimitation in the Indian Ocean (Somalia v Kenya) case at the International Court of Justice terms that are in breach of the Constitution.

c) That an order of mandamus do issue against the 1st Respondent, to compel the 1st Respondent to perform its constitutional and statutory functions as necessary to ensure that Kenya is not party to international instruments and proceedings whose effect is to bypass the constitutional requirement of a referendum in the alteration of Kenya’s territory.

d) That a declaration be issued to declare that by dint of Article 2 of the Constitution, the jurisdiction of the International Court of Justice over the Republic of Kenya is subject to the reservation of Kenya to the jurisdiction of the International Court of Justice contained in its Declaration dated 19th April, 1965.

e) That a declaration be issued to declare that within the meaning of Article 2(5) of the Constitution, Section 4(4) of the Maritime Zones Act, Cap 371 embodies the reservation of Kenya to the jurisdiction of the International Court of Justice contained in the Declaration dated 19th April, 1965.

f) That a declaration be issued to declare that upon the enactment of the Maritime Zones Act, Cap 371 to, inter-alia, establish and delimit an exclusive economic zone in the Western Indian Ocean the northern boundary of the exclusive economic zone with Somalia shall be delimited by notice in the Gazette by the Minister pursuant to an agreement between Kenya and Somalia on the basis of international law.

g) That a declaration be issued to declare that under Article 2(5) and (6) of the Constitution read with Section 4(4) of the Maritime Zones Act Cap 371 the Memorandum of Understanding entered into between Kenya and Somalia on 9th April, 2009 must be implemented first before Kenya can submit to the jurisdiction of the International Court of Justice over its maritime border dispute with the Federal Republic of Somalia.

h) That a declaration be issued to declare that upon the International Court of Justice finding vide its judgment of 2nd February, 2017 that the MoU between Kenya and Somalia concerning the delimitation of their maritime boundary is a treaty under international law, the reservation of Kenya to the jurisdiction of the International Court of Justice prohibited further exercise of jurisdiction over Kenya in order for the said treaty to be given effect.

i) That a declaration be issued to declare that any real or alleged imprecision or lack of clarity in the MoU between Kenya and Somalia dated 7th April, 2009 cannot negate Kenya’s reservation to the jurisdiction of the International Court of Justice with the consequence of the said Court asserting jurisdiction by default.

j) That a declaration be issued to declare that the assertion of jurisdiction by the International Court of Justice over the Somalia vs Kenya maritime dispute by default is subversive of cordial principles of international law and amounts to a gross violation of Kenya’s sovereignty.

k) That a declaration be issued to declare that the Republic of Kenya is entitled under international law to withdraw from legal proceedings before the International Court of Justice founded on a negation of its reservation to that court’s jurisdiction and attendant violation of Kenya’s sovereignty.

l) That a declaration be issued to declare that by dint of Articles 1, 2 and 3 of the Constitution the Respondents were enjoined to withdraw from the legal proceedings before the International Court of Justice upon delivery of judgment dated 2nd February, 2017 with twin findings that Kenya had declared reservations to the jurisdiction of the International Court of Justice and that the MoU between Kenya and Somalia dated 7th April, 2009 is an international treaty.

m) That a declaration be issued to declare that by dint of Kenya’s reservation to the jurisdiction of the International of Court of Justice contained in its Declaration dated 19th April, 1965, Section 4(4) of the Maritime Zones Act, Cap 371 and the MoU between Kenya and Somalia dated 7th April, 2009, all proceedings of the International Court of Justice after the 2nd February, 2017 are null and void ab initio and not binding on the Republic of Kenya.

n) That an order of prohibition be issued to prohibit the Respondents from further participation in the legal proceedings before the International Court of Justice between Somalia and Kenya unless and until Section 4(4) of the Maritime Zones Act, Cap 371 has been complied with pursuant to the reservation of Kenya to the jurisdiction of the International Court of Justice contained in its declaration dated 19th April, 1965.

o) That an order of mandatory injunction be issued to compel the Respondents to withdraw Kenya’s current participation in the legal proceedings before the International Court of Justice on the maritime border dispute between Kenya and Somalia.

p) That the Judgment of the International Court of Justice on jurisdiction made on 2nd February, 2017 constitutes a usurpation of jurisdiction in violation of Articles 2, 4 and 5 of the Constitution and Kenya’s rights as a sovereign state under the provisions of the United Nations Convention on the Law of the Sea.

q) That a declaration be issued to declare that the International Court of Justice has no jurisdiction to adjudicate over the maritime dispute between Somalia and Kenya on account of Kenya’s reservation to its jurisdiction and Section 4(4) of the Maritime Zones Act, Cap 371.

r) That by dint of Article 2 of the Constitution the Kenyan State or any of its organs and officers are prohibited from implementing a decision of any International Court or Tribunal in respect of which Kenya has not voluntarily given consent to its jurisdiction.

s) That the judgment of the International Court of Justice in respect of the maritime dispute between Somalia and Kenya is null and void ab initio on account of gross violation of Kenya’s sovereignty.

t) Costs.

Essentially, the petition was seeking to bar Kenya’s further participation in the ICJ in the maritime delimitation case filed by Somalia against Kenya and the argument before the Court was based on this.

The court identified the following four issues for determination:

i. Whether the participation by the respondents in the proceedings before the ICJ was unconstitutional; and, whether the High Court should injunct them from any further participation in the case.

ii. Whether the petition was justiciable.

iii. Whether the High Court had jurisdiction over proceedings at the ICJ.

iv. Who would bear the costs?

Held
The High Court after analysing several decisions of the former Court of Appeal for East Africa such as East African Community v. Republic [1970] EA 457, the Court of Appeal such as Karen Njeri Kandie v Alassane Ba & Another, Nairobi, Civil Appeal 20 of 2013 [2015] eKLR, and the High Court such as Beatrice Wanjiku & Another v the Attorney General & Others, High Court Petition No. 190 of 2011 [2012] eKLR that while international law was part of the law of Kenya, it was subordinate to the Constitution.

The Court then proceeded to find that an amendment affecting the alteration of Kenya’s territory would require a referendum, under article 255 of the Constitution.

The Court found that Kenya was a party to the United Nations and that it follows as a corollary that Kenya became a party to the Charter of the United Nations, it ipso facto, became a State Party to the Statute of the ICJ. In any case Kenya accepted with reservations the jurisdiction of the ICJ by its formal declaration of 19th April 1965.

The Court went on to state that Kenya signed the United Nations Convention on the Law of the Sea on 10th December 1982 and ratified it on 2nd March 1989. The Court found that articles 74 and 83 deal with delimitation of the exclusive economic zone (EEZ) and the continental shelf between States with opposite or adjacent coasts. The delimitation of both the EEZ and the continental shelf shall be effected by agreement on the basis of international law, as referred to in article 38 of the ICJ Statute in order to achieve an equitable solution.

The Court found that if no agreement can be reached within a reasonable period of time, the States concerned should resort to the procedures provided for in Part XV. The Court found articles 279 and 280 of Part XV of UNCLOS to be relevant to the proceedings before the High Court.

Article 279 of UNCLOS provides as follows:

States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter.

Article 280 of UNCLOS provides as follows:

Nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice.

Interestingly, the High Court found that the MoU was one such attempt by the disputants to resolve the maritime dispute peacefully. The Court went on to find that the article 282 of UNCLOS allows States Parties with a dispute concerning the interpretation or application of the UNCLOS to enter into a general, regional or bilateral agreement or otherwise to resolve the matter peacefully. Such a dispute “shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in [Part XV] unless the parties to the dispute otherwise agree.”

The High Court found that the MoU had the force of a treaty under international law and found further that paragraph 6 of the MoU provided as follows:

[6] The delimitation of maritime boundaries in the areas under dispute, including the delimitation of the continental shelf beyond 200 nautical miles, shall be agreed between the two coastal States on the basis of international law after the Commission has concluded its examination of the separate submissions made by each of the two coastal States and made its recommendations to two coastal States concerning the establishment of the outer limits of the continental shelf beyond 200 nautical miles.

Very importantly, the High Court did not pretend to have jurisdiction to review the decision of the ICJ., but held that it had jurisdiction and power to order the respondents to stop further participation in the proceedings if it was satisfied that the respondents were flouting the Constitution.

The Court then went on to deal with the four issues it had framed.

Whether the participation by the respondents in the proceedings before the ICJ was unconstitutional; and, whether the High Court should injunct them from any further participation in the case.

The High Court found that the respondents, as state and public officers, were bound by Articles 10 and 156 to promote the rule of law. The Court also found, very importantly, that contrary to the petitioners’ assertion that the Attorney General’s participation at the ICJ amounted to giving up the country’s sovereignty, the non-participation of the Attorney General in the proceedings that would infringe inter-alia Articles 3 and 156 (4)(b) of the Constitution.

The High Court continued to state that the Attorney General’s participation in the ICJ proceedings would accord an opportunity to demonstrate to the ICJ Kenya’s constitutional impediments in the implementation of the decision in the event the dispute is decided in favour of Somalia. The Court wondered how else would the ICJ be expected to know, for instance, that under Articles 2, 3, 255 and 256 of the Constitution that any alterations to the territorial boundaries of Kenya must be backed by a popular referendum.

Whether the amended petition is justiciable.

The High Court found that a court must satisfy itself that the case before it is not caught up by the bar of non-justiciability. The High Court further found that the concept of non-justiciability is comprised of three doctrines: Firstly, the Political Question Doctrine; secondly, the Constitutional-Avoidance Doctrine; and, thirdly, the Ripeness Doctrine. The High Court found that the doctrines are crosscutting and closely intertwined.

The High Court citing Black’s Law Dictionary 10th Edition, Thomson Reuters Publishers, at page 1346 defined a political question as:

The judicial principle that a court should refuse to decide an issue involving the discretionary power by the executive or legislative branch of government.

The High Court found that the political question doctrine focuses on the limitations upon adjudication by courts of matters generally within the area of responsibility of other arms of Government. Such matters mostly deal with foreign relations and national security and that according to the political question doctrine, certain sets of issues categorized as political questions, even though they may include legal issues, are considered to be external to the judiciary as an arm of Government. In so holding, the Court implied tat the decision of the Government to participate in the ICJ proceedings was such a political question.

On the Constitutional Avoidance doctrine, the High Court found that the doctrine is at times referred to as the Constitutional-Avoidance Rule was defined in Black’s Law Dictionary, 10th Edition at page 377 defines it as:

The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion

The High Court found that the doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition.

The High Court found that the Ripeness Doctrine focuses on the time when a dispute is presented for adjudication. The Black’s Law Dictionary 10th Edition, [supra] at page 1524 defines ripeness as:

The state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made

The High Court found that courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies.

The High Court observed that the National Assembly, as the legislative arm of Government, is seized of the dispute and that the National Assembly had called upon the Executive to undertake diplomatic, and, if need be military action to defend Kenya’s territorial integrity.

The High Court, thus found that whereas the Court had power to restrain the respondents from further participating in the proceedings before the ICJ if their conduct infringes the Constitution, the issues emerging from the amended petition would be more effectively resolved by diplomatic, legislative, policy and other executive interventions rather than by a constitutional decision.

Whether the High Court has jurisdiction over proceedings at the ICJ.

The High Court, very correctly, held that it had no jurisdiction over proceedings at the ICJ, by stating that jurisdiction of the High Court, as a municipal court, does not extend to the ICJ.

In the end the petition was dismissed with each party bearing its own costs.

Our Comments
We think the High Court finally came to the correct decision in dismissing the petition.

However, we note that the court may have made certain findings that were not based on facts. The High Court’s finding that the MoU was one attempt by the disputants to resolve the maritime dispute peacefully was, with due respect, misguided. Both States signed the UNCLOS on 10 December 1982. Kenya and Somalia ratified UNCLOS on 2nd March and 24th July 1989, respectively, and UNCLOS entered into force for the parties on 16th November 1994. Under article 76, of UNCLOS, a State party to the Convention intending to establish the outer limits of its continental shelf beyond 200 nautical miles shall submit information on such limits to the Commission on the Limits of the Continental Shelf (the CLCS). Pursuant to article 4 of Annex II to UNCLOS, a State party intending to establish such limits shall submit the required information to the CLCS “as soon as possible but in any case, within 10 years of the entry into force of UNCLOS for that State”.

In May 2001, bearing in mind the difficulties encountered by some developing States in meeting the requirements of article 4 of Annex II to INCLOS, the eleventh Meeting of States parties to UNCLOS decided that the ten-year period (referred to in Article 4 of Annex II) would be deemed to have commenced on 13 May 1999 for those States parties to UNLOS for which UNCLOS had entered into force before 13 May 1999. Consequently, the ten-year time-limit for such States to make their respective submissions to the CLCS was due to expire on 13 May 2009. Kenya and Somalia were among those States to which this time-limit applied. In June 2008, at the eighteenth Meeting of States Parties to UNCLOS, it was decided that the ten-year time-limit could be satisfied by the submission to the Secretary-General of the United Nations of preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles.

With regard to disputed maritime areas, under Annex I of the CLCS Rules of Procedure, entitled “Submissions in case of a dispute between States with opposite or adjacent coasts or in other cases of unresolved land or maritime disputes”, the CLCS requires the prior consent of all States concerned before it will consider submissions regarding such areas.

It is in this regard, and having the afore-mentioned background, that, on 7th April 2009, the Kenyan Minister for Foreign Affairs and the Somali Minister for National Planning and International Cooperation signed the MoU. It cannot therefore, be true that the MoU was one attempt by the disputants to resolve the maritime dispute peacefully. It is clear that the purpose of the MoU was not maritime delimitation.

The justiciability of the matter before the court was a very interesting aspect of the decision. The Court found that the High Court could decline jurisdiction if it found that there was a political question, or if the doctrine of constitutional avoidance or doctrine of ripeness applied. This is a very important self-fetter to the High Court’s jurisdiction, because a literal reading of article 165 may wrongly lead one to believe that the High Court has jurisdiction to make any order with the Constitution, which is not true. Future litigations concerning especially the discretion of the executive or legislative branches are likely to see the political question defence being relied on, especially since it is evident that not all orders issued by a court are capable of being enforced.

The decision is available here http://www.okadvocates.com/blog/wp-content/uploads/2020/06/Kiriro-Wa-Ngugi-and-19-others-v-Attorney-General-and-2-others.pdf