I published the original article in Aug 2012. This is just an update to show how the Heligoland Treaty, made for the convenience of two former colonial powers, continues to haunt the two African Nations that came forth after the winds of independence blew across Africa.
The dispute between The Republic of Malawi (“Malawi”) and The United Republic of Tanzania (“Tanzania”) concerns the location of the border between the two States on, or at the perimeter of Lake Nyasa/Malawi.
The border between Malawi and Tanzania (as they are now known) was first demarcated by Great Britain and Germany via the Heligoland Treaty of 1890. The Treaty demarcated several boundaries, including that between Tanganyika and Nyasaland (the predecessors of Tanzania and Malawi).
At that time Tanganyika was a German colony and Nyasaland, a protectorate of Great Britain.
Article 2 of paragraph 1 of the Treaty provided that the boundary between Nyasaland and Tanganyika ran along the eastern, western and northern shores of the Lake until it reaches the northern bank of the mouth of the Songwe River. It then continues up that river to its intersection point with the 33rd degree of east longitude. Hence the whole of the Lake was part of Nyasaland.
Genesis of the Complications:
Following WW1 Great Britain was given a class B League of Nations mandate over Tanganyika. In the present dispute over the Lake, this is crucial to Tanzania’s argument.
Since Britain controlled territory on both sides of the Lake from 1919, Tanzania may argue that various governmental maps and reports are sufficient to redraw an international boundary given that negotiation and formal agreement would not have been necessary.
The British “Annual Reports on Tanganyika” from 1924 to 1932 refer to a centre line as the Lake boundary.
In 1924 the British government issued a State Department report, which includes a geographical and historical note regarding colonization and territory in the area. The report describes the Western limit of previously German territory as the median line of the Lake:
…Thence it follows the boundary of Rhodesia to the northern end of Lake Nyasa and continues along the centre line of Lake Nyasa to a point due west of the Rovuma River whence the boundary runs east and joins the Rovuma River, whose course it follows to the sea.
The text was accompanied by a map, showing the boundary between current – day Malawi and Tanzania as the median line through the section of the Lake that divides them.
In 1925, the annual colonial report for Nyasaland stated that:
This strip falls naturally into two divisions: (1) consisting of the western shore of Lake Nyasa, with the high tablelands separating it from the basin of the Luangwa river in Northern Rhodesia, and (2) the region lying between the watershed of the Zambesi river and Shire river on the west, and the Lakes Chiuta and Chilwa and the river Ruo, an affluent of the Shire, on the east, including the mountain systems of the Shire Highlands and Mlanje, and a small portion, also mountainous, of the south-eastern coast of Lake Nyasa.
In the same year Great Britain advised the Council of the League of Nations that the boundary between Tanganyika and Nyasaland ran along the centre line of the Lake.
A map showing the boundary running through the middle of the lake was submitted along with the report.
The text of the 1933 and 1934 Annual Reports on Tanganyika continue to refer to the median line as the boundary, however they include maps showing a shoreline boundary.
In reports from 1935 to 1938 both text and map indicate a boundary along the shore. Similarly, the Annual Colonial Reports on Nyasaland from 1948 to 1953 all show a shoreline boundary.
In 1959 the British Government advised the Government of Tanganyika that its legal advisers considered that no part of the Lake was within the boundaries of Tanganyika.
In May 1959, the Minister for Lands and Mineral Resources stated in the Tanganyika Legislative Council that the borders of Tanganyika remained as they were demarcated by the 1890 Treaty.
On 30 November 1961 Tanzania declared that it would honour bilateral treaties for two years and would then regard as terminated all treaties “which could not by the application of the rules of customary international law be regarded as otherwise surviving.”
This statement signalled Tanzania’s intent not to accept the boundary as running along the Lake’s periphery.
Tanganyika gained independence on 9 December 1961, becoming Tanzania.
In a speech to the National Assembly on 11 June 1962 its Prime Minister, Rashidi Kawawa, stated that no part of Lake Nyasa lay within the borders of Tanzania. He also stated that the 30 November 1961 statement did not affect this issue.
Nyasaland gained independence and became Malawi on 6 July 1964. At this point Malawi produced a booklet stating that Tanzania’s frontier included a quarter of the Lake.
Mere publication of a booklet is insufficient to alter a boundary. Further, as Tanzania was already an independent state by this time, Malawi did not enjoy the legal discretion to unilaterally alter the border.
Were Malawi to have secured independence prior to Tanzania, it may have been possible for a Malawian government to alter the boundary.
September, 2016: Malawi Government tough on Lake Malawi row – the Daily Times
The Lake Malawi boundary wrangle between Malawi and Tanzania seems far from over as the latter has started promoting its new map which shows the lake as belonging to Tanzania, but Chief Secretary, George Mkondiwa, has informed all government controlling officers to be on alert and disregard such propaganda. http://www.times.mw/government-tough-on-lake-malawi-row/
President Peter Mutharika told Parliament during budget session of the House in May this year that the entire lake, reportedly rich in oil and gas, belongs to the people of Malawi but the East African country has insisted that it owns half of the northern part of the lake.
A forum of former African heads of state chaired by former president of Mozambique, Joachim Chissano, tasked to mediate in the wrangle is also not through with the exercise but Tanzania has on several occasions resorted to provocations, like for instance introducing ships on the lake last year.
In a circular dated August 29 which The Daily Times has seen, signed by Mkondiwa and addressed to Principal Secretaries, heads of departments, chief executives of city and town councils and all District Commissioners, Mkondiwa has advised the controlling officers to reject such propaganda by refusing to use any documentation or material carrying such misinformation.
In an interview Wednesday, Mkondiwa confirmed having authored the letter but could not be drawn to comment further.
Reads part of the circular Ref No CS/S/001: “Malawi will never accept, and has never, at any time acquiesced to Tanzania’s unwarranted and unjustified territorial claims, government would like to call upon all officials in government ministries, departments and agencies to be alert on this matter and to continue rejecting and refusing to use all such maps appearing in any form or media including calendars, diaries, official documentation or other documentation for any purpose or business.”
The officials are further being cautioned from accepting such maps during international conferences and workshops.
Minister of Foreign Affairs, Francis Kasaila, was not available for comment but Principal Secretary for the Ministry, Dalitso Kabambe, explained that as far as the country is concerned, its territories remain as defined in the boundary treaty and there is no such a thing as a “new unilaterally promulgated map”.
“As you are aware, Malawi committed itself to participate in the high level mediation and feels that it is the right forum for resolving the dispute as opposed to resorting to futile media pronouncements.
“Accordingly, Malawi has been actively engaged to encourage the high level mediation team to set-up date for the next round,” Kabambe said.
He also indicated that the mediation had stalled in 2014 due to elections in the country and thereafter, in 2015 due to elections in Tanzania, adding that the high level mediation team is in the process of setting-up a possible date for the next round of negotiation meeting.
Asked on assertions that Malawi has taken a soft stance on the national issue, Kabambe said that despite its commitment and participation in the mediation talks, the country’s position has always been consistent and very clear, and that is, its boundaries are not negotiable.
The country is basing its ownership rights on the 1890 agreement between Britain, her colonial master and Germany.
2012, July – Malawi:
“But our terms are clear on this. According to the 1890 ecoland agreement between Britain and Germany, the border between Malawi and Tanzania is the edge of the waters of Lake Malawi.
So we are very clear about that but we will continue to engage with Tanzania as a good neighbour,” Patrick Kabambe, Principal Secretary, Principal Secretary in the Ministry of Foreign Affairs and International Cooperation, Malawi.
2012, July – Tanzania:
“We don’t want Tanzanians to ask for permission from Malawi to fetch water or fish from Lake Nyasa. If we don’t reach a consensus, we will take recourse in international law.” Tanzania‘s Attorney General Judge Frederick Werema, responding to a concern from the Member of Parliament for Mbeya Region (special seats), Hilda Ngoye.
Ms Ngoye had charged that the Malawian tourists and fishing boats have been trespassing on Tanzanian territorial waters at will, escalating tensions.
“Tanzanians around Lake Nyasa’s shores have the right to fish or engage in other productive activities on the lake, without being intimidated,” she had told the Tanzanian parliament, demanding an explanation from the government on the status of the border between Tanzania and Malawi.
The gist of the dispute:
The dispute is about who owns what is, as far as Malawians are concerned, Lake Malawi and as far as Tanzanians are concerned, Lake Nyasa.
According to Malawi, this is not even a subject for debate. Malawi owns 100% of Lake Malawi and if we are to go by the wish of Malawi’s founding president, Dr Hastings Kamuzu Banda, (and ignore the Heligoland Treaty) Malawi just like its predecessor the Maravi Kingdom should in fact extend to some parts of present day Tanzania and even Mozambique.
According to Tanzania on the other hand, the lake is shared and the boundary of these two neighbouring countries should follow the median line in Lake Nyasa. This is the official stance of the Tanzanian Government hence any Malawian activity beyond this line are deemed “trespassing”.
The Historical Context:
This dispute traces its origin to the Berlin Conference, and trouble is rooted in the Berlin Act of 1885, that was signed by the 13 European powers that attended the conference that formalised the Scramble for Africa.
According to documents on the demarcation of the border around Lake Nyasa encapsulated by the Anglo-Germany Treaty of July 1, 1890 – verbatim – the border runs as below:
To the south by the line that starts on the coast of the northern border of Mozambique Province and follows the course of the Rovuma River to the point where the Messinge flows into the Rovuma. 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.
Tanzania, of course, does not agree with this, with Tanzanian scholars calling this demarcation “spurious”.
Put to Dr. Kamuzu Banda by Tanzania’s Julius Nyerere that the map between independent Malawi and Tanzania should follow the median line, in his unique blunt style Dr. Banda responded as below:
We will never recognize or accept this claim: we will never agree to the suggestion or proposal. The Lake has always belonged to Malawi….Everyone knew Nyerere as a coward and communist inspired jellyfish: We know while pretending to be a staunch supporter of the OAU, Nyerere is the worst agitator and betrayer of the cause for which the Organization was formulated. History, geography or even ethnical
knowledge will convince Nyerere that four districts to the South of Tanganyika belong to us by nature. It is only that we respect the feasible unification of Mother Africa that we do not claim these districts. All that we are doing is setting [sic] historical truth.
Dr Kamuzu Banda in 1962 reinforced his claim in addition to the authority of the Anglo-Germany Treaty of July 1, 1890 with some maps from the national archives.
Dr Kamuzu Banda even went as far as suggesting to Mwalimu Julius Nyerere that a part of Mozambique was supposed to be part of Malawi – then still Nyasaland.
But as is usually case in any dispute, Tanzania is equally able to produce maps that show the median as the boundary, but such maps have never disputed the contents and spirit of the Anglo-Germany Treaty of July 1, 1890.
Pre-Independence Treaties and the Lake Malawi /Nyasa dispute:
The reason this dispute will not disappear any day soon is rooted in Malawi’s and Tanzania’s divergent views vis-à-vis pre-independence treaties including the Anglo-Germany Treaty.
Julius Nyerere, as the first Tanganyika Prime Minister, prepared a policy document for implementation after independence in which the Secretary—General of the United Nations was informed thus:
As regards bilateral treaties validly concluded by the United Kingdom on behalf of the territory of Tanganyika, or validly applied or extended by the former to the territory latter, the Government of Tanganyika is willing to continue to apply within the territory, on a basis of reciprocity, the terms of all such treaties for a period of 2 years from the date of independence [i.e. until 8 December 1963] unless abrogated or modified by mutual consent. At the expiry of that period, the government of Tanganyika will regard such of these treaties, which could not by the application of the customary international law be regarded as otherwise surviving, as having terminated.
As a result, Tanzania refused to recognize the treaties that naturally gave the lake to Malawi on independence on 6 July 1964 since its allegiance to such expires on December 8, 1963.
And this was the major recipe for this dispute because, it meant that in practice; Malawi and Tanzania now had different points of reference, which explains the continued stand-off.
Parties that have different points of reference in any argument are as good as parallel lines. They can never meet. In the least, it explains where Malawi and Tanzania are at, with respect to Lake Malawi a.k.a Lake Nyasa.
In all likelihood, Dr Kamuzu Banda would have viewed such a policy, which was supposed to be outward looking but designed in a way that only serves internal interests, with utter contempt.
Any merit in Tanzania’s claim to half the lake?
Having said all this one wonders if Tanzanians are mad to be claiming half the lake and on what basis some map makers, show the median line as the boundary.
There are several International Conventions that deal with rights associated with water.
Rights associated with water that is not flowing are called littoral. Generally land beneath non-sovereign lakes are owned by the surrounding upland owners. When all the deeds call to the lake, each owner has title to a centre point. This principle is referred to riparian rights and is the basis for Tanzania’s claim.
Should Malawi buy this?
From the statement from the Principal Secretary Principal Secretary in the Ministry of Foreign Affairs and International Cooperation, Patrick Kabambe this seems like a far-fetched idea and one is tempted to subscribe to this thought.
“Indeed, we went for discussion on the border issue and we categorically put it to them that as far we are concerned, the entire lake belongs to Malawi.”
In a rare stretch of cross-government policy constistency, the sentiments have been repeated by the current President of Malawi, Peter Mutharika.
The point is: if one person unilaterally decides to annul existing international treaties (like the Anglo-Germany Treaty – which by the way is all there is on this – and both Tanzanians and Malawians were not represented which makes them both victims); why should another person suffer from subscribing to the treaty?
Advice to Malawi: let us by all means meet, eat, drink together, and talk with Tanzania. But the talking will not undo the Anglo-Germany Treaty.
As Dr H. Kamuzu Banda used to say, we are all brothers and sisters – the maps and divisions were imposed on us by the colonialists; therefore, let us all (Malawians and Tanzanians) fish and swim in the beautiful Lake Malawi.
The mediation effort: