Malawi, Tanzania lake dispute in depth: Expert point of view from lawyer

Preamble:
Having watched with keen interest as the lake dispute unveils, it has been within my conscience and intellect that something needs to be done by the citizenry, as to move the authorities to do something before it is too late.

Over the recent weeks, there have been reports that Malawians from the northern part of the country have been arrested, beaten up and subjected to various forms of torture, allegedly by Tanzanian authorities, and to be exact, the military, which has been deployed to guard “their (Tanzanian) side of the lake.” This is a rather sad development, considering the fact that, in any event where parties are alleged to be mediating, peace and calm, is the major objective.

Now how can we mediate with them while they keep torturing our brothers up there? I have not at any time in my life heard that Tanzanians have been arrested for fishing on any part of the lake, either before or during this conflict. Yet recently, Malawians have been arrested and tortured by Tanzanian authorities, apparently for “trespassing on the lake”. Naturally, the Malawi government is expected to treat this development with the urgency it deserves and safeguard its citizens’ rights. Thus the major question for Malawians has been, “what is the government of Malawi doing to safeguard the interests of our brothers and fathers who are being tortured in the process?”  The acts by the Tanzanian authorities on their own violate the dignity of Malawians.  Is it not the duty of the government to protect such dignity?lake map

The Dispute:
Simply told, the Malawians are saying, “We own the whole lake, 100%.” WRONG! Mozambique owns 25% of the lake. (How did that happen?) And the Tanzanians say, “We own 50% of the lake.” Ok? What kind of mathematics is that? That side of the lake you are claiming does not even form up to 30% of the border in question. So which way to go? Well, in my writing, I will be more Malawian for a start, but I believe the readers should not judge me by what or who I am, but by its contents of my argument.

Who Owns the Lake?
Oil exploration in Lake Nyasa has rekindled disputes between Malawi and Tanzania over who owns the lake. Lake Nyasa, known as Lake Malawi by Malawians, has been the source of disagreements since colonial times, which were rekindled recently when Malawi allowed gas and oil exploration to begin around the lake’s border. Rhetoric has escalated over the past few months although it seems both sides are now attempting to calm tensions.

The Historical Background
Located at the junction of Malawi, Mozambique and Tanzania, Lake Nyasa – the eighth largest in the world – contains an estimated 168,000 tonnes of fish of nearly 1000 species, and is able to provide sustenance for nearly 600,000 people.

In the early 1960s, Malawi’s first president, Hastings Kamuzu Banda, claimed that Lake Nyasa was part of Malawi referring to 1890 Heligoland Agreement between Britain and Germany which stipulated that the border between the countries lay along the Tanzanian side of the lake. This treaty was reaffirmed at the 1963 Organisation of African Unity summit where it was accepted reluctantly by Tanzania although disputes reignited in 1967-8.

Malawi also alleges that the 2002 and 2007 African Union resolutions upheld the colonial agreement because of the emphasis on member states upholding the borders inherited upon independence.

Some, however, argue that it is necessary to correct the errors of the colonial powers, and Tanzania has sought recourse to international law, which indicates that borders are generally in the middle of a body of water, claiming Tanzania should therefore own half the lake.

Oil and the re-emergence of the issue:
The resurgence of the dispute began in October, 2011 when Malawi’s former president, Bingu wa Mutharika, awarded a contract to British Surestream Petroleum to start gas and oil exploration on the eastern part of the lake. Since then, a number of disagreements over the use of the lake have arisen.

At the close of July, 2012 Tanzania announced plans to purchase a new $9 million ferry to cross Lake Nyasa’s waters. Malawi’s Ministry of Lands responded by claiming that Tanzania has no legal right to start operating on Lake Malawi since the ownership and border dispute remains unresolved.

For their part, Tanzanian authorities argued that Malawian fishing and tourist boats were encroaching on Tanzania’s waters. Hilda Ngoye, MP for the Mbeya region, alleged that Malawi has been conducting tourism activities beyond its territorial waters, escalating tension further.

Earlier this year, a two-day meeting was held with the aim of reviving stalled negotiations on the delineation of the lake’s boundaries. Tanzania’s Foreign Affairs and International Cooperation Minister, Bernard Membe, requested that the exploration activities be shelved until discussions had been fully resolved, saying “any exploration or research activities for oil and gas prospects must stop forthwith as their presence was likely to jeopardise the ongoing negotiations and pose a security threat”.

Tanzania’s Attorney General, Frederick Werema, added that Tanzania would seek international intervention if diplomatic negotiations do not produce results.

Malawi, however, countered that it is justified to start exploration since the lake lies within the borders stipulated by the Heligoland treaty

Malawi’s Stand
Tanzanians are just being selfish over the issue of Lake Malawi. It is interesting that after the threats of war from Late Dr Hastings Kamuzu Banda and during the presidency of Dr Bakili Muluzi and late Professor Bingu wa Mutharika, the Tanzanians did not want to take an offensive approach. One would, therefore ask whether they are just taking advantage of Malawi having a female president or they are being influenced by a third party- perhaps another country outside Africa that wants a stake in the resources of Lake Malawi. One must also notice that the word Nyasa comes from the Yao language to mean Nyanja, which is lake in English. When Dr David Livingstone came to Nyasaland (present day Malawi) he asked the people of Mangochi the name of the lake and they answered him in Nyanja, “nyasa”, and he named the lake , Lake Nyasa and the land of the lake Nyasaland. In essence if you say Lake Nyasa you mean Lake Malawi. They are one and the same. Unless there is an international resolution on the issue, Malawians will not give an inch of that Lake. As far as Malawi is concerned Lake Malawi belong to Malawi and Malawians

Tanzanian Stance:
The border between Malawi and Tanganyika (today Tanzania) was made accordingly to the British and Germans interests we all know that. So both states must stick with the new international law, which allows two countries separated by lake to divide it into halves. This is what Tanganyika (today Tanzania) and Democratic Republic of Congo did with lake Tanganyika, The same as Tanzania, Kenya and Uganda who did it over lake Victoria, and Malawians did with Mozambique over lake Malawi. Why can it not also be done with Tanzania? Malawi should follow the new international law not the Heligoland Treaty, 1890 because in Heligoland Treaty, 1890 there are some things that have been corrected by new international law. Otherwise if Malawi cannot accept international law then Tanzania has no choice than to enter into war with Malawi.

The Heligoland Treaty, 1890
The Heligoland–Zanzibar Treaty (German: Helgoland-Sansibar-Vertrag) of 1 July 1890 (also known as the Anglo-German Agreement of 1890) was an agreement between Great Britain and Germany concerning mainly territorial interests in Africa. Germany gained control of a strategic island covering the approaches to its North Sea naval bases and gave up control of its Zanzibar colony.
Germany gained the islands of Heligoland (German: Helgoland) in the North Sea, originally part of Danish Holstein-Gottorp but since 1814 a British possession, the so-called Caprivi Strip in what is now Namibia, and a free hand to control and acquire the coast of Dar es Salaam that would form the core of German East Africa (later Tanganyika, now the mainland component of Tanzania).

In exchange, Germany handed over to Britain the protectorate over the small sultanate of Wituland (Deutsch-Witu, on the Kenyan coast) and parts of East Africa vital for the British to build a railway to Lake Victoria, and pledged not to interfere with British actions vis-à-vis the Sultanate of Zanzibar (i.e. the islands of Unguja and Pemba). In addition, the treaty established the German sphere of interest in German South-West Africa (present-day Namibia) and settled the borders between German Togoland and the British Gold Coast (now Ghana), as well as between German Kamerun (now Cameroon) and British Nigeria.

Britain divested itself of a naval base which covered the approaches to the main German naval bases in the North Sea, but which would be increasingly difficult to defend due to the development of a German naval service. It immediately declared a protectorate over Zanzibar and, in the subsequent 1896 Anglo-Zanzibar War, gained full control of the sultanate.

The treaty served German chancellor Leo von Caprivi’s aims for a settlement with the British. After the 1884 Berlin Conference, Germany had already lost the “Scramble for Africa”: the German East Africa Company under Carl Peters had acquired a strip of land on the Tanganyikan coast (leading to the 1888 Abushiri Revolt), but it had never had any control over the islands of the Zanzibar sultanate and so the Germans gave away no vital interest. In return they acquired Heligoland, strategically placed for control over the German Bight, which with the construction of the Kiel Canal from 1887 onwards had become essential to Emperor Wilhelm’s II plans for expansion of the Imperial Navy. Wilhelm’s naval policies aborted an accommodation with the British and ultimately led to a rapprochement between the UK and France, sealed with the Entente cordiale in 1904.

The misleading name for the treaty was introduced by ex-Chancellor Otto von Bismarck, who intended to attack his despised successor Caprivi for concluding an agreement that Bismarck himself had arranged during his incumbency. However, Bismarck’s nomenclature implied that Germany had swapped an African empire for tiny Heligoland (“trousers for a button”). This was eagerly adopted by imperialists, who complained about treason against German interests. Carl Peters and Alfred Hugenberg appealed for the foundation of the Alldeutscher Verband which took place in 1891.

A meeting leading to the ‘Heligoland Treaty’, was held in 1890 to ensure Africa ‘The benefits of peace and civilisation’ and settled the last disputes which still existed between Britain and Germany who abandoned some places in Kenya, receiving in compensation the Island of Heligoland in the North Sea.

A lingering controversy plagued the discussions concerning the area around Taveta claimed by rival German and British explorers and with Germany giving in, this is why it is the only stretch of this border which does not run in a perfectly straight line.

There is no historical evidence to support the story that the dividing line went on purpose around Mount Kilimanjaro and that Queen Victoria gave it as a present for the Kaiser’s birthday as she already possessed Mount Kenya.

An Anglo-German Treaty divided Lake Victoria across the middle and continued the frontier to the eastern border of the Belgian Congo Free State. A last Belgian-German Agreement to share Lake Tanganyika along a North-South line ended the ‘orderly’ partition.

Interestingly, it is the treaty that divides lakes Tanganyika and Victoria into halves, to Kenya, and Uganda, and it is the same treaty that gives Malawi full ownership of Lake Nyasa. The question now is, why would Tanzania want to honour that one  part of the treaty, not the whole of it? If they have to disown, why not in its entirety?

The 1963 OAU Resolutions
The Heads of States in newly independent African states met in Addis Ababa in 1963, and the resolutions, drawn officially on July 21, 1964, among others tackled on the issue of borders and border disputes. Article AHG Res 16(1) recognises that such issues constitute a major issue of dissent and that there always exist an extra-African factor aimed at dividing African states, and considering that the borders at the time of attaining independence consider an actual reality, resolved that all countries shall adopt and adhere to the borders that they inherited on their attainment of independence. This effectively means that the African states concerned adopted the Heligoland Treaty.

1984 international Law on Border conflicts:
For a start, the UN Charter⁠ says: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” So, already we have an aggressor here, threatening to wage war. Interesting.

The 1984 Convention defines maritime borders as passing through the middle of any waters between two states, EXCEPT where there is an already existing agreement between the concerned states. Well, we have that Heligoland Treaty, 1890 again. Done deal.

The Mozambique-Malawi Resolution
History has it that the whole of Lake Malawi once belonged to Nyasaland, and later, Malawi. Now why does Mozambique have a share? Give and take. Malawi had to give part of the lake in exchange of a straight of land, whic runs from Tsangano, in the district of Ntcheu, to Lizulu, in the district of Dedza, running from the current border, easterly, to the waters of lake Malawi, which land then formed part of Portuguese East African, now called Mozambique. The Mozambicans had to thus get that part of the lake, in exchange and at the same time, relinquish any possible claims on the islands that would otherwise be on their side of the lake.

Are we heading towards the Mozambique-Malawi deal? Obviously no! The Tanzanians are being selfish, they well know we are a landlocked country, and if Malawi is to come with a give and take scenario, they get that side of the lake and give Malawi an equivalent volume of land, that will extend the Malawian territory to the Indian Ocean. Win Win!

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