Colonial ambiguity in Tanzania-Malawi boarder dispute

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 In my previous discourse I sketched out the preliminary issues of ownership of Lake Nyasa/ Malawi between Malawi and Tanzania. 

That article attracted acerbic scrutiny particularly from my comrades in Malawi who were rooting upon a colonial agreement between the British who were colonists of Nyasaland now Malawi and the Germans who were colonists of the then German East Africa of which the then Tanganyika which now forms Tanzania was part of. 

This article is a step forward to my previous work embossing those sketches of the border dispute that has been beguiling the two neighbours. 

Frankly speaking and without a shred of doubt this misunderstanding is really flowing from colonial injustices inflicted on riparian populations who were never consulted. 

The partitioning of the African continent was obtained through inducements, coercion and outright fraud. 

However, when it came to the Lake Nyasa borderline it was a colonial outright imposition of “spheres of influence” rather than determination of “border sovereignty” that sparked more confusion than clarification. 

The Heligoland Treaty of 1890 that Malawians are deeming to be their holy grail and irrevocable did not extinguish customary user rights of communities on Tanzanian side of the Lake Nyasa nor was there any indication of that intent. 

That observation led me to raise a basic question: did the Heligoland Treaty of 1890 establish “border boundaries” or mere “spheres of influence”? 

An appropriate answer to that question will shed more light into this political, legal and economic imbroglio. 

The Mixed Boundary Commission (or Anglo-German Boundary Commission), established in 1898 to demarcate the Nyasa section of the Tanganyika-Nyasaland boundary, apparently commenced its work at the mouth of the Songwe River and proceeded westward to Lake Tanganyika without considering the shore boundary of Lake Nyasa. 

It is plausible that this was precisely what was intended: namely to focus only on the Lake Tanganyika–Lake Nyasa part, while treating the Lake Nyasa section as self-evident. On this interpretation, demarcation of the boundary in this disputed section was not supposed to be part of its remit. 

Thus, there were suggestions that “no doubt at the time it seemed obvious that a boundary defined in terms of a lake shore was self-demarcating and required no physical investigation.” 

An alternative interpretation, though, is that this was a lapse that laid the basis for the apparent ambiguity subsequently invoked by Tanzania in partial justification of its claim of sovereignty over the lake. 

That dilemma of which was the real intent of this demarcation exercise compounded a circumstantial fracas that is prevalent today. 

Since customary user rights were preserved, it makes plenty of sense and logic to assume it was not the intent of the colonial rulers to extinguish those rights, and it will be fundamentally wrong, harsh and unconscionable for post colonial states to upend the protection of customary user rights that were not interfered by the terms of the Heligoland Treaty. 

This legal position presumes unconditional sanctity and reverence to the Heligoland Treaty despite its glaring legal, environmental and socioeconomic flaws. According to the Heligoland Treaty, the Malawian border is at the shoreline of Lake Nyasa implying the whole Lake is Malawian but here too prevail legitimate apprehensions.

Can Malawi legitimately exclude customary user rights of the communities on Tanzanian side based upon the shoreline doctrine espoused by the Heligoland Treaty? 

The answer to that must be in the negativity. I say so because the evidence and as a matter of practice during the British colonial rule and post independent Malawi has never attempted or hatched laws that expressed a desire to exclude communities on the other side of the shoreline from accessing and exploiting resources in the Lake. 

Even the Germans during their reign had launched a steamer and other vessels that navigated in Lake Nyasa without facing any objections from the British rule. The evidence below anchors this assertion. 

It is true that German steamer, the Hermann von Wissmann, in 1893 was launched and subsequent vessels and its navigation activities on the northeastern section of the lake Nyasa to disrupt and prevent slave trade of which the British supported. 

However, it is imperative to note the Germans did not seek permission from the British to launch a steamer and navigate into Lake Nyasa implying whatever agreement they had did not disturb customary user rights of those on Tanganyika side of the shoreline. 

What the Heligoland Treaty conferred to Nyasaland were “spheres of influence” but not “exclusionary border rights”. 

That distinction is vital if the matter has to be well understood that elevating “spheres of influence” into “exclusionary rights” is without precedence and violates clear terms of the very Heligoland Treaty which Malawi brandishes, and therefore are merely illusory. 

Both Germans and the British through their cartographic perspirations and annual reports churned out conflicting maps and data fostering the ambivalences of what they really had agreed upon. 

Both were guilty as charged for making claims and counterclaims that the border was indeed in the middle of the Lake but abandoned that assertion and reaffirmed the Heligoland Treaty of 1891 that the border was in the shoreline. 

It is also notable that cartographic dispositions, reports and matters of practice have never been considered as evidence in judicial decisions unless they ascertain written agreements but point to a conundrum that we are now confounded with. 

These facts tilt the scales favourably to Malawi but do not assist to resolve the border row. 

Part of Tanzania’s argument, although it has not been publicly expressed before—that evidence of certain public acts by both the British and German governments in the post-1890 period points to an acceptance by both sides that the boundary between Nyasaland and Tanganyika was formed by the median line and not the eastern shore as stipulated in the 1890 Agreement. 

The evidence for this is sought in public (or sovereign) acts by the German authorities and cartographic representations in maps and official reports issued by both the British and German governments during the post-1890 period, and it is argued that these were sufficient to redraw an international boundary in the circumstances of uncertainty. 

On the German side, a number of maps reproduced in a 1909 publication on the German colonial empire confusingly depicted both the median and shoreline. 

Notably, an official map published in 1918, at the height of the First World War, marked the median line as the boundary. 

A subsequent publication in 1920 also depicted the median line as the boundary. One writer, McEwen, who discusses these maps in some detail, dismisses the latter maps as of little probative value given that they were published at a time when Great Britain and Germany were at war with each other or immediately following the war, and thus a time of heightened tension. 

It is also of consideration that these maps did not explicitly purport to override the delimitation of the German sphere of influence provided for in Article I(2) of the Treaty of 1890. 

The maps produced on the British side during this period are equally inconsistent in their depiction of the median line and the shoreline. 

An early map in the British Admiralty’s Handbook of German East Africa of 1916 (hereinafter the Handbook), discussed in some detail by McEwen, showed the median line. 

The writer, McEwen notes that the map is not dated and contains no reference to the cartographer. 

He further suggests that the map seems to be “essentially a sketch” and that the compilers may have been misled by the presence of German vessels on the lake, as noted in the Handbook, to assume that the international boundary ran along the median line. 

Among other British maps produced during this period was that in the Annual Report on Tanganyika for 1922, which showed an eastern shoreline boundary and one that appeared in the Times Survey Atlas of the World for the same year showing the median line. 

That guides me into another question: can water bodies that are shared by riparian states confer the same legal interpretation as those in drylands? For obvious reasons, they cannot be placed in the same category. 

While demarcation in drylands is visible but that in a body of water is invisible to the eye and subject to the vagaries of nature. For the sake of argument, let us interrogate the whole concept of shoreline border. Shoreline is like a shifting sand or scree, and may drastically move and cause a lot of consternation and anxiety. 

Out of mother nature acts of omission or commission the Lake may overflow or dry completely to make that argument of shoreline non-existent and an irritant to the beholders. 

Then what happens to the whole concept of interpretation and enforcement of borders? Shoreline border stokes conflicts defeating its very original intents of shedding clarity to avoid them. 

This narrates why Lake shorelines acting as borders are an endangered species, rarely practiced and enforced due to intricate problems it generates. 

Shorelines may act as deterrence to riparian state that has been excluded from accessing the Lake but what happens when the Lake inflicts damage to the communities that are not beneficiaries to it. Who will compensate them when they can not erect wharves or water breaks in the Lake but could be victims of flooding and its associated destruction and damage. 

Acts of a riparian state that enjoys full sovereignty of the Lake may cause irreparable damage to the other state without clear lines of compensation or insurance. Issues of pollution from extraction of fossils and natural gases may lead to curtailment of the customary user rights of a riparian state that has been left high and dry. 

The path to a negotiated settlement is littered with booby traps because what Malawi is seeking is legalization of wholesome ownership rights that were not inked in the Heligoland Treaty. 

What Malawi is drooling for is a transformation of “spheres of influence” into “borders of demarcation and exclusion” that is a step over from what the framers of the Heligoland Treaty had originally intended. 

It is an absolutism solution that Malawi is haggling for where the winner takes it aĺl, and that intransigence is likely to have caused the adrenaline shot up to the roof no sooner the Lake was known to contain valuable resources such as natural gas and possibly fossil fuels. 

Malawi would love to exclude Tanzania from enjoying those benefits! It is a zero sum game where there can only be one winner and one miser!

Malawi has shown a mistrust of SADC mediation process and has accused it of bias after one Tanzanian working there did things that Malawi deemed disadvantageous to her cause. 

Malawi momentarily withdrew from SADC mediation for a month or so but was later persuaded to return to the negotiating table, and did so with a heavy heart. 

Malawi would love the matter was taken to the ICJ, however, the snag Tanzania must also signify her intention to have that matter lodged, heard and determined there. 

Tanzania is not interested so that door is permanently shut because ICJ can only hear cases where both parties mutually agree to have their dispute lodged, heard and decided there. 

Moreover, the judicial travails inside the ICJ are arduous, torturous and exhausting that may take up to 50 years to resolve. It is an unattractive option for Malawi that is eager to begin exploring and exploiting natural resources that could be buried in Lake Nyasa. 

Of equal significance, ICJ has no means to enforce her rulings and therefore a disgruntled party may refuse to abide by her rulings. 

Environmental management more than legal exposition offers the optimal solution in a situation of this nature where warring sides agree to manage jointly those resources in the Lake in an equitable manner in order to preserve the Lake for future generations. 

A formation of a parastatal akin to TAZARA could present a better way forward to extricate ourselves from this colonial baked mess. 

As a parting shot, there have been misleading findings that the then first prime minister of Tanganyika, Julius Kambarage Nyerere, had conceded prior to independence the whole Lake Nyasa belonged to Malawi under the shoreline dictum. 

It is important to remember that a self governing Tanganyika was not yet a Republic so whatever Nyerere or Tanganyika Legislative Council said in those days was not binding to the Republic of Tanganyika that gained her independence on 9th December 1962. 

Before that date of independence whatever was deliberated then could be dismissed and ignored as was sourced through the British colonial rule duress. 

Acts under “undue influence” are never accepted in a court of law or any quasi-judicial body such as SADC mediation proceedings. In those days we were still under British rule but what Nyerere stated in 1967 was binding: he had reaffirmed the median boundary rule which we will always advocate for mutual management of Lake Nyasa resources. 

On the most positive note of this saga, Tanzania and Malawi have enjoyed immemorial entente between them and as a result neither party will pursue a military option to enforce their disputed border aspirations over Lake Nyasa. 

It is important for Malawi to recognize the Heligoland Treaty did not confer her with exclusionary rights but were merely “spheres of influence” bona fide to the British colonial rulers which ceased forthwith on the day Malawi was granted her independence by the British, and any attempts to upgrade “spheres of influence” to the level of “sovereignty border” insidiously amounts to rewriting the Heligoland Treaty through a backdoor. 

Neither SADC nor ICJ have jurisdiction to rewrite or alter the original terms of the Heligoland Treaty. So, such mediations or consorting to court determination are ill-advised. 

Parties to the border dispute should be content to what customary user rights already being exercised and refrained from misleading interpretations that exceed, and therefore violates, the original intents of the Heligoland Treaty.