Kamuzu’s non-negotiable stance on sovereign ownership of Lake Malawi

On his return from the United States, former Malawi President late Hastings Kamuzu Banda made a crucial statement to Parliament on 27 June 1967 in which he described the country’s borders with its neighbours as wounds inflicted by colonialism and imperialism. Turning to Tanzania’s simmering claim over ownership of part of Lake Malawi, Kamuzu declared:

‘As to the claim that the Lake should be divided between Malawi and another neighbouring country, I should like to say here and now that we will never recognise or accept this claim; we will never agree to the suggestion or proposal. Lake Malawi has always belonged to Malawi.’ 

In fact, writing on the Malawi-Tanzania Lake dispute in the Journal of Modern African Studies published by Cambridge University Press in 1973, James Mayall underlined that both before and immediately after independence; Tanzania accepted that no part of the Lake fell under its jurisdiction. And yet in the past week, opposition Democratic Progressive Party (DPP) president, Peter Mutharika’s remark that Lake Malawi is non-negotiable ignited the worst possible bickering surrounding government’s stance and handling of the Lake dispute with Tanzania.

A growing bandwagon of critics wearing masks of political correctness have since come to the fore criticising Mutharika’s hard-line view. They have labelled it warmongering whilst lauding government’s apparent ‘soft diplomacy.’ The usual pundits, Centre for Human Rights and Rehabilitation (CHRR) and Centre for the Development of the People (CEDEP) added their loud voice towards the end of last week by highlighting that Mutharika’s remark was divisive and insensitive.

The two organisations have claimed Mutharika’s declaration has no place in a democracy, well, though it is clear that the most democratic nations of the world have a ‘no nonsense’ diplomatic approach with regards to national issues and interests. Which is an indication that non-negotiability is a standpoint which embodying ‘hard diplomacy’ is an approach which could help ensure that Malawi’s sovereign interests are safeguarded out of the Lake wrangle.

Whereas a few self-acclaimed government advocates seem to suggest that Malawi’s diplomats shuttle back and forth Lilongwe and Dodoma preparing talking points using the simplified version of A fools guide to soft diplomacy, Tanzanians have been tearing apart the legality of the Anglo-German Treaty of 1890 which Malawi’s argument for sovereign ownership of the Lake is based on, for instance, the treaty’s article I (2).

What was worse the whole of last week was the jitteriness in government quarters after hearing Mutharika’s pronouncement at one of his whistle-stop tours. State media, MBC immediately responded to the newswire with paranoid news broadcasts and analysis which must have excited Tanzania’s analysts and legal experts who are continually screaming in support of their country’s claim.

Equally, their diplomats must have toasted on MBC self-defeating propaganda looking at the host of water bodies that Tanzania already enjoys ownership of: Lake Victoria, Lake Tanganyika, the ubiquitous Indian Ocean and now glasses up! Part of Lake Malawi as the Nyasas are busy squabbling.

MBC’s wayward programming was not unexpected in an election year which is still failing to depart from the politics of mudslinging to an issue-based campaign. But if truth be told, the lax view of a few pundits supporting government’s posture on the Lake wrangle contradicts popular opinion which is weary that the current soft stance might end up costing Malawi a dear portion of the Lake of Stars - the third largest in Africa with an enormously rich and diverse ecosystem.

Previously, traditional leaders from Lower Shire urged government to adopt a tough stance on the issue and warned that any suggestion of surrendering part of the Lake to Tanzania will not be tolerated. But government’s ‘real tough talk’ came not long ago from Minister of Information, Moses Kunkuyu who vehemently underlined that successive regimes in Tanzania have come and gone comforted by the false belief that they own part of Lake Malawi. Only to have their hopes fall under historical facts.

Mutharika’s intention might have been to gain political capital a situation which has given chance to his cynics to continue weighing in equipped with the benefit of semantics. But his underlying argument carries substance. Actually Tanzanians laugh at any mention of Malawi’s tough stance by glorifying the military prowess of their army and former leader late Julius Nyerere’s who successfully attacked Uganda (1978-1979) following Idi Amini’s declaration that he had seized Tanzania’s Kagera region.

With the prospect of massive gas and oil reserves under Lake Malawi’s seabed, Tanzanians are not taking the border dispute lightly. They argue that the Heligoland Treaty considered under international law and granting Malawi the Lake was simply a reckless result of colonisation and therefore fraught with arbitrary interests though at best it has helped with peace maintenance.

Their fingers have been picking international customary law, jus cogens, which widely accepted by the international community (than agreed upon between states) has imperative powers. The standing treaty is being quashed as having inferior authority and contradicting jus cogens. Thus, Tanzania’s solace lies in relevant principles of various contemporary international conventions governing trans-border waters.

The most attractive premises for Tanzania obtained from these modern-day legal instruments governing trans-boundary waters is that they provide for the equitable utilization of resources and the obligation not to cause substantial harm to the people of both sides of trans-boundary water bodies. Therefore, on the disputed part of Lake Malawi, Tanzania argues it is entitled to 50% or so.

However, Malawi government’s strong claim not only lies in the treaty but the fact that the borders drawn by colonialists on the continent were espoused and sanctified by the Organization of African Unity (OAU) at its formation in 1963 and endorsed by its successor the African Union (AU). In fact, the Heligoland Treaty predates various formulations of contemporary International Customary Law.  Any resolution contradicting the standing treaty would have great implications on other borders. For instance, can we overturn all boundaries for being unnatural and illegitimate because they were arbitrarily drawn by colonialists?

Though Dodoma also banks hopes on ‘inconsistencies’ of colonial territorial maps to justify an existent anomaly, former president of the International Court of Justice (ICJ) Rosalyn Higgins determined in 1988 that Malawi owns the entire Lake by pointing out that historical maps show that Lake Malawi was excluded from German sphere of influence. Looking at such overwhelming evidence explains why the average Malawian is cynical that by agreeing to sit at the negotiation table, government has in principle almost granted that there is a fault on the demarcation of the boundary on the disputed part of the Lake.

Otherwise, the underlying facts should give impetus for the use of a ‘hard-line approach’ where necessary, because, many countries have learnt through the lessons of history that in disputes over resources or borders, a smart combination of hard and soft diplomacy where necessary is crucial in the pursuant of national interests.

The very dichotomy between soft and hard skews options: one being seen as conflict preventing and positive while the other conflict promoting and negative. But a nation that pursues ‘soft diplomacy’ without any attention to how this is perceived by its adversary or aggressor can find that the other nation is taking advantage and placing obstacles in the way of its sovereign interests.

Simply put, this can mean one nation state ‘illegitimately’ being given a chance of acquiring part of the territory of another. The only plausible analogy would be allowing a greedy aggressor grab the land from his/her adjacent neighbours. ‘Smart diplomacy’ in essence should be learning better how to combine soft and hard stance by evoking the ability to use the best of any of these approaches as is required.

In fact, there are times when the use of soft diplomacy obstructs the legitimate utilisation of hard-diplomacy. Kamuzu would most definitely have concluded the Lake dispute with a powerful speech on the bitter pains of colonialism and imperialism and how Malawi borders with its neighbours were drawn.

Understandably though, the evolution of the ‘modern nation state’ and inter-state system to a great existent is grounded on the desire to pursue peaceful and democratic approaches through the adherence to accepted international norms. Negotiations and court arbitrations which Malawi is pursuing appear to be politically right and morally rational paths.

Speaking ahead of the SADC Heads of State Summit about to take place on 17^th-19^th of August in Lilongwe, Minister of Foreign Affairs and International Cooperation Ephraim Chiume has just indicated that in the event of unsatisfactory recommendations from the SADC negotiators on the Lake Malawi dispute, the two estranged parties ‘have agreed’ to take the matter to the ICJ.

Many Malawians find Chiume’s calmness unusual and Government’s posture strangely causal. Somehow, the two countries will hold hands and sit through ICJ’s potentially lengthy arbitration and pray for a favourable verdict. What if, given the solid facts Malawi’s interests are not upheld?

The Lake Malawi dispute had remained dormant for decades but with prospects of gas and oil it now carries economic, security and diplomatic implications. It has to be resolved once and for all. No sane Malawian wants to experience war because its repercussions are tragic. Memories are still fresh of the devastation and trauma of the Mozambican civil war between FRELIMO- RENAMO (1977-1992) as of bloody conflicts elsewhere.

However, what is unacceptable is the occasional adoption of soft diplomacy by Africa’s nation states and regional bodies as a euphemism for a dysfunctional approach to tackling disputes and conflicts. The Malawi government has various options: it can and should calibrate as necessary to uphold the sovereign interests of its people.