At the centre of it all, are two major issues. One, that African peoples and nations have existed since time immemorial and two, that the modern nation states were a creation of colonialists in processes that the people were never consulted. It is a fact that the Heligoland Treaty of July 1, 1890 described the border between the two countries as running along the eastern shores of the lake.
However, it is also a fact that in subsequent years, there existed confusing uncertainty as to the actual location of the border in official documents both in Tanganyika (Tanzania mainland) and in Nyasaland (Malawi). For example, the Annual Reports on Tanganyika from 1924 to 1934 showed a median line as forming the border between Tanzania and Malawi on Lake Nyasa. Then from 1935 to 1938, maps printed in Dar es Salaam showed a shoreline border.
At the same time, official reports in Nyasaland Protectorate in the 1920s and 1930s showed a middle line border with the Tanganyika Trust Territory or Tanzania today. It is important to note that after World War I, both Tanganyika and Nyasaland fell under British colonial rule whereas the Heligoland Treaty was negotiated between the Germans and the British, basically to define “spheres of influence.”
According to the treaty, there was supposed to be a delimitation agreement, sometime in the 1920s, something that never happened because the powers went to war with German ending up defeated. Since then, the border between Tanzania and Malawi on Lake Nyasa became more or less a matter of administrative convenience only, with the British less interested in its legalistic interpretation and demarcation.
That is the unfortunate colonial legacy that Tanzania and Malawi have to live and content with to this day. The border dispute with independent Malawi is an old one but was largely dormant since 1968. It briefly threatened a military showdown when former Malawi President, Dr Hastings Kamuzu Banda laid claim over Tanzanian territory alleging geographic, historic, ethnic and linguistic ties.
He also threatened to place a gunboat on the lake. Addressing a Malawi Congress Party rally at Chitipa near the border with Tanzania in September 1968, Dr Banda pointed in the direction of Tanzania and said: “That is my land over there, Tukuyu, Njombe and Songea, all of them must be given back.”
In an interview published in the Nationalist, (TANU’s newspaper that was merged with the Standard in 1972 to form the Daily News) the Father of the Nation, Mwalimu Julius Nyerere said: “He must not be ignored simply because he is insane. The Powers behind him (South Africa and Portugal) are not insane.” About the lake itself Mwalimu said: “The insanity of the claim was proved by the fact that the eastern shore was constantly shifting.”
Dr Banda hit back by calling Mwalimu “a coward and communist inspired jellyfish.” As the border dispute degenerated into trading personal accusations, Tanzania bid its time, hoping for the emergence in Malawi of a more serious leadership to negotiate with. Admittedly, the question is within the power of both Tanzania and Malawi to settle but Lilongwe has indicated in recent talks that it prefers taking the case to the International Court of Justice (ICJ), the costs to both countries notwithstanding.
I have tried on several occasions to imagine I was a Malawian making ‘our’ case of one hundred per cent ownership of the lake but my conscience has each time failed me. There was no way I could justify the claim with a free and clear conscience even if the agreement was that the Tanzanians were free to swim, fish and draw water from the lake knowing they were in Malawian territory.
That the eastern shoreline is constantly shifting was pointed out recently by Mzee Gideon Ndembeka of Mbamba Bay when the Minister for Foreign Affairs and International Co-operation, Mr Bernard Membe visited three lakeside communities, including Liuli and Lituhi last week to get the views of the elders there on the dispute, which has taken centre stage recently following Malawi’s unilateral licensing of foreign companies for minerals exploration on the lake.
Other elders said the lake was at one time, very narrow, such that people could swim from one end to the other. A shoreline border is therefore a very dubious demarcation. The spirit of the Heligoland Treaty itself as regards the border on Lake Nyasa is extremely questionable as it appeared to discriminate against one community, that is Tanganyika. The British and the Portuguese negotiated a median border but somewhat “conspired” to defraud the Germans.
Under customary international law, borders for inland waters shared between countries are in the middle. The Malawi border with Tanganyika was without precedent or parallel anywhere in the world. The anger expressed by elders in Mbamba Bay, Liuli and Lituhi was quite understandable as Malawi’s claim is to say the least, extremely gut revelling.
Yet, this is no time for charged emotions but a moment for extremely sober thinking. One hundred per cent ownership of the lake is impossible. We may have to exhume the signatories to the treaty, that is within the confines of modern thinking and international cultural values. There can be no doubt none of the signatories meant to ignore the rights of the people of Tanganyika.