READ READ THIS ARTICLE ABOUT DETERMINATION OF MALAWI,TANZANIA DISPUTE OVER LAKE NYASA

The determination of Malawi, Tanzania conflict over Lake Nyasa can be Logical other than Legal.

The border claim put forward by the two neighbors (Malawi and Tanzania) is not a new phenomenon; it rather has a very interesting history from the regimes of the founders of the two countries (Kamuzu Banda and Julius K. Nyerere) who respectively were the first presidents of the two countries. The issue of boundary confusion was triggered in 1967 and possibly it is only the diplomatic ability of these good neighbors that enabled it to endure till today. Can this give hope to have a fruitful end for both parties, should they choose to take it as it has always been?

Going through the past happenings over the boundary can even cause you into headache, the issue being the controversy on what exact source of reference, from the Agreement of the Berlin conference of 1884-1885 to the Anglo-Germany treaty of 1890 also known as the Helgoland treaty and perhaps any other kind of agreement to the effect, if any. Here again comes a question of the competency of the Anglo-American treaty to dictate the move while there is that early Berlin dismantlement of Africa which was rectified by the said treaty (Helgoland treaty). There is no doubt that, colonial powers entered such agreement in sake for their exploitative desires. They never even had mercy over the Tanzanians at shores of the lake, how offensive were they? I believe the British were not in sake for water to drink or cook, they were not for fish either and possibly they did not know even if there are oil deposits. The desires Germany had over Zanzibar Islands and maintenance of friendship with the British together with those of the British over the Nyasaland and the upper Nile, seemingly are now costing the relationship of innocent African cheap labors.

The only thing thought could be prideful for Africa over colonialism was that, they helped  to portion the continent under the cost of African resources and lives of grandparents, but again one may fail to name those who even after the Berlin partition of Africa were not satisfied, only to come up with Africans future in exchange for groundnuts. The question to ask ourselves is that, when the Organization of African Unity solemnly declared in 1964 that all member states pledge themselves to respect the borders existing on their achievement of national independence was it aware of the ridiculous treaties and their effects to the vulnerable states?

In the normal sense OAU/AU would not like to see these happenings, to every African these are inherited problems which no one can blame the other. A range of border disputes which are happening today can only be resolved by the mutual agreement of African’s who are the only to decide over their African land and resources, involvement of non-African will always confuse as it has always been.

Briefly Malawi relies on this statement of article 1(2) of the Anglo-German Treaty [Helgoland-Zanzibar Treaty] (July 1, 1890) that reads “…From here the line runs westward on the parallel of latitude to the shore of Lake Nyasa. Turning north, it continues along the eastern, northern, and western shores of the lake until it reaches the northern bank of the mouth of the Songwe River…”  This per se is not an issue. The same treaty at article VI continued by providing that, “Any correction of the demarcation lines described in Articles I to IV that becomes necessary due to local requirements may be undertaken by agreement between the two powers. It is understood, in particular, that commissioners will meet as soon as possible to undertake such a correction with regard to the borders described in Article IV”

This is where logic needs to be applied, we should not strictly lock ourselves by looking at the colonial attitude. In the whole Helgoland treaty no one can show you what was given to Tanganyika in exchange for the part of the Lake. All terms of exchange were in favor of Malawi without diligent consideration of the Tanganyika people. May be this could have been simple that when assertion continues, simple solution could be, return what you received and get what you gave. Is it not the time now to abandon the discriminatory treaty and let these two good neighbors share the good of the Lake? It is interesting that there was this loophole, “any collection of the demarcation lines when becomes necessary due to local requirements” but who could initiate this? The answer is simple that, only the Tanganyika residents could demand this. But how could they manage this, with their reading and writing illiteracy plus non-participation in the conclusion of the said treaty? This can be conclusively a reason for the problem to endure until independency.

           

If this dispute is not going to be fairly determined, the Tanzanians at the shore of the Lake would regard it a funeral since it will result into total denial of the free God-given resource. On the other hand the Malawians would only cerebrate, for they do not have anything to lose. This illustrates the differing interests between these two parties. The Malawians search for the treaty which favors their part and discriminates another, supports those who assert that, “a human being is selfish in nature”

Was there a reason for the colonialist to remember that, they had to claims a part of Lake Nyasa? Again let us see Article VIII that.  “…According to these provisions, trade is free; shipping is free on lakes, rivers, canals and their ports for both flags; unequal treatment as regards transport or coastal trade is prohibited; goods of either origin shall not be subject to taxes other than those raised to cover trade-related outlays, unequal treatment excluded… It is understood, in particular, that, in accordance with these provisions, the transport of goods by both sides shall not be subject to any obstacles or transit duties between Lake Nyasa and the Congo Free State, between Lake Nyasa and Lake Tanganyika, on Lake Tanganyika, and between this lake and the northern border of both spheres of influence”. What again? While all potential areas were covered for effective exploitation and then leave, they did not have anything to lose, Tanganyika was the loser. This is what every party which sides with Malawi should think about, even God is a witness that, before colonialism the Tanzanians enjoyed the good of Lake Nyasa and it was not at the mercy of the imperialists.

The commissioners had an opportunity to meet immediately in order to make collection of the demarcation lines, unfortunately they could not, since they did not have that need which the Tanzanians have today. It is further amazing to see that, most of the lakes of its alike are shared by the bordering states and the question is the specialty of Lake Nyasa’s denial to the Tanzanians.

All in all, the role of the Berlin conference in the partition of Africa, 1884-1885 cannot be ignored in this matter. This is the conference which for the first time subdivided Africa in to 50 countries given to the European imperialists and eliminating most of existed forms of African Autonomy and self governance. It is undisputable that most of the boundaries applicable by African countries today were set during the Berlin conference agreement of 1885. This means that the Helgoland treaty modified what was first set on the Berlin conference, can’t there be an issue to discuss? Because, where the Berlin conference was general and was attended by almost all the imperialists’ countries, only two concluded the Helgoland treaty to satisfy their extra desires. If it was a company, could not avoid the sanction on the requirement of a quorum.

For the dispute like this, when referred to the determination of the court especially the International Court of Justice (ICJ) the international laws may be invoked. The main question is what resolution to apply? Here we should remember that, being a party or not to the ICJ does not mean that a state cannot appear before the court, it depends on  the mutual agreement and fulfillment of some prerequisites articulated under Article 35(2) of the statute of the ICJ as established by the Charter United Nations, 1945.

In most cases, where the states appear to differ in any matter between them, the need for inquiry in the practices of the states overtime comes into play and this is known as, International Customary Law provided under Article 38(1) (b) of the statute of the ICJ. By international customary law it means, such international customs, as evidence of a general practice accepted as law and binds the parties to such custom.

Going back to the issue at hand, it was formally a colonial policy that, water bodies be open for navigation between the colonies which share such bodies and all colonies had equal rights without any discrimination to access of these bodies. Apart from the article cited above to that effect, the Berlin conference which held the title of dismantlement of African land, nations and the artificial construction of the 1872 colonial Africa c. - 1960c resulting into the Berlin conference: General Act of Feb 26, 1885 which under chapter.1 (ii) [relating to the Congo River Basins and adjacent Territories] provides that “All Flags, without distinction of Nationality, shall have free access to the whole of the coastline of the territories. This shows the attitude of the colonialists making most of African big lakes to be shared by the states bordering such lakes. The logic can be, if the colonialists realized the need among themselves to share these water bodies why to date one has to tell Tanzanians to watch the lake from distance, here even God cannot have such kind of favoritism.  While both parties to the Helgoland treaty had free access to the lake, today Tanzania can hardly put a local boat in the lake, this is an intolerable selfishness.

     

To remember, sharing the lake by the neighbor states does not only mean to fetch water, swim, to do fishing and enjoy the oil deposits, it also guarantees security. With the world full of terrorism incidences, you can’t stay at a shore of the lake which you cannot patrol as it counts high risk of invasion, this again requires a very kin consideration. It is undisputable fact that, the British were worried about their territories, therefore having the whole lake under their control, ensured security for their side since no one could use it for the purpose other such purposes used unless there were agreement to that effect. Later the British took over Tanganyika meaning that they had full control over the lake being masters of the two colonies, you can see that they had no need to seek for rectification of the boundaries again. This is because they had an access to the lake which Tanzanians won’t have if at all reckless decision is invoked in determining the matter. 
        

 

Why Lake Nyasa? Why Malawi? Why Tanzania?

The common question here is why this has to happen between Malawi and Tanzania over Lake Nyasa, considering that the lake is not only shared by the two countries but also shared on its south part by Mozambique. Malawi got independence on July, 6^th 1964 and was declared a republic on July 6, 1966 and for the first time the dispute was asserted in 1967, Tanzania strongly rejected the assertion and was ready for the withdrawal of the Colonial boundaries for the redraw. This indicates that Tanzania can’t agree the total denial of the lake while Malawi wants the whole part of the lake, colonialists didn’t care about the future of Africa. We can depart from the Anglo-Germany treaty upon realizing our African Concern in order to maintain our integrity which the Germans or the British can’t. It is time for Africans to show that they really deserved independency by determining our African concerns on an African perspective. Why can’t we give sharing lakes by neighboring states a customary status for Africa, good thing it is not only Lake Nyasa shared by two or more states. let us a look to these other lakes shared by the neighbor states.

1.1. Lake Nyasa    

Lake Mweru, this lake is found in the central Africa, it forms the border between Zambia and the Democratic Republic of Congo (DRC formally Zaire), the boarder of these two countries divides the lake into two parts, one part for Zambia and another for DRC.

1.2. Lake Mweru

Lake Tanganyika, this lake is in East Central Africa in the Great Rift Valley, it is bordered on the north by Burundi, on the east by Tanzania, on the south by Zambia and on the west by the Democratic Republic of Congo. All these countries share the Lake.

1.3. Lake Tanganyika

Lake Kariba, which is found in the southern Africa and it lies between Zambia and Zimbabwe, the two countries which share the lake.

1.4. Lake Kariba

Lake Chad, It is found in the central Africa, at the junction of Chad, Cameroon, Nigeria and Niger, again these countries share the lake.

1.5. Lake Chad

Lake Victoria, It is also known as Victoria Nyanza, it is in the east Africa, bordered by Uganda, Kenya and Tanzania and these entire countries share the lake.

1.6. Lake Victoria

What lucky these other countries sharing the lakes had? that they did not face this virus called Anglo-Germany treaty and its time this virus requires a strong diplomatic medication with a pure African chemical reaction. Furthermore, after the references above one can still ask himself as to what exactly is so special with Lake Nyasa?

i.    The name? It is sometimes referred to as lake Malawi, but this should not dictate the minds of these other parties since there is lake Chad which if claims followed the names on how lakes are named it could have fallen in to the fully ownership of Chad. The other example is lake Tanganyika taking the name of the former Tanganyika before what happened in 26^th April 1964 (union between Tanganyika and Zanzibar to form Tanzania)

ii.   And again is it the extent of ownership? Here every country owning large party of the lakes could claim the whole remaining parts. Although we can’t ignore the facts revealed in the Helgoland Treaty, the prudent reasoning has high position in fixing the matter other that Legal principles and use of power. This is due to the effect this issue has over the entire surrounding community.

Above all, the dispute between Malawi and Tanzania remains in the powers of the two parties and if further assistance has to be sought, then the African Union is the right body to determine which path to take. The reminder here is that, the colonialists should not come behind and tell us what to do since they had colonial mind and will still have colonial mind. Obviously, OAU did not accept the colonial borders under that doctrine of Sanctity of the colonial borders on the reason that the borders were perfectly drawn. It was only wisdom to avoid more troubles which could be overwhelmed by disparities in interests and desires. The boundaries were drawn in the absence of any African representative which poses a serious problem. The directives given by the once colonialists over the border dispute should only form the obiter dicta.

What to be done?

The story is very interesting; the determination of this issue needs more intellect rather than emotions. So far the ICJ when adjudicating dispute matters, the court has normally encountered the problem of compliance by the parties especially those who become losers. The nature of the decision and the effect of a decision depend much on the nature of the dispute. The dispute of a border on the land surface or island is quite different from the dispute of body on the water bodies and in most cases of this nature the Court applies the principle of ex aequo et bono, (which is the principle based on equity and welfare). Where this principle applies it normally results in to equal partition of the body in dispute.(see the decision in the case of Frontier Dispute Burkina Faso/Mali) 1962 ICJ 6, 9 (June 15) where the Court divided the contested territory in half on an equitable basis relying on the principle of ex aequo et bono and infra legem.

The Court normally when determining the issue of border disputes relies on the following; Treaty law, geography, economy, culture, effective control, history, uti possidetis juris, “elitism” and ideology, treaty law, uti possidetis, and effective control.

Briefly uti posidetis juris is the principle of international law which maintains that, parties to a treaty or any conflict should keep possession of what they have when hostilities cease. Effective control is also another principle applied in solving interstate border conflicts and it is mainly based on the historical ownership of any part of land or body in dispute which is a good claim for Tanzania. The Tanzanians have never experienced the life without Lake Nyasa it has been in possession of part of the Lake, no wonder that when it got independency the part of the lake was so marked. Possibly the Colonialists did not redraw the map to bring the Aglo-Germany treaty in to life, Tanzanians have since then continued enjoying the good of Lake Nyasa forming their Natural Right of access to such services the Lake renders. Hence basing on the principles of natural justice in whatever way they may be construed one can see that there is no room for Tanzanians to lose the part of Lake Nyasa. Only African concern can bring this dispute to an end and get each party satisfied with the outcome to keep good neighborhood. 

To bring the discussion home, it is highly recommended that, it’s time now for Africa to bear responsibility of ending these continuous boundary misunderstandings between states. The maturity in handling these disputes will greatly reflect and manifest what we claimed as self determination and governance ability when we demanded our independency. We have to reveal our independency and integrity by giving value to the things the colonialists didn’t. This is the move which will encourage us to even depart from the colonial discriminative ideologies and establish our humanity based ones. The idea could support those who go beyond on to claiming the redesigning of the boundaries of African nations which obviously isn’t an easy task. Africa should strongly seek to free itself from the colonial-yoke, should either be keen on the colonial offspring which is growing healthy by sucking on the endless African political, economic, social and cultural instabilities.

Reasoning: If there was once a fuel of colonial effective control over Africa called “divide and rule” which was the food for the Mother (colonialism) to grow healthy, After delivering the offspring (neo-colonialism) now need the same kind of food in a new style already designed under what we can call “leave the controversial borders, they will never get to understand each other” Taking the dispute to them will be a pride that the deal is done. They did not do it accidentally and their decisions will always still be contradicting (take the precedent from Gadaffi’s crisis, they completely ignored African concern).  While they are busy strengthening their EU and USA for economic, social and political cooperation which is a weapon for their superiority, we are busy fighting for fish and water to drink, what about US Africa??? We are not late we can still make it, our weapon is cooperation and self-determination which is simply a poison to the threatening offspring. 

Message: Malawi, Tanzania, Africa. Remember your history, English, Germany, Europe are not God, they did not create Lake Nyasa to know what he intended and for whom.  Put aside all the desires, influences and the differences, get onto the table and make rational determination of your misunderstanding. Should African Union get involved at any stage, it has to put in consideration both Legal and Logical approaches in order to reach at a solution which is not only fair but also which has elements of human Concern.       

About the Author,

Davis Muzahula is currently a student of a Master of Law (LLM) at St. Augustine University of Tanzania. Mwanza

Contacts phone: +255 756 829 416.

E-mail: davismuzahula@yahoo.com