As Malawi and Tanzania grapple with finding solutions to the Lake Malawi boundary wrangle, Downing Street memos on the issue during the Hastings Kamuzu Banda era we have seen build a strong case for Malawi.
The memos were written in the 1960s when the dispute first surfaced after then Tanzanian president Julius Nyerere wrote London, complaining about Bandaâ€™s â€œexpansionistâ€ policy that was claiming the whole of Lake Malawi when, according to Tanzania, it was supposed to be shared equally.
Archived communication we have seen from Number 10 Downing Streetâ€”Britainâ€™s Prime Ministerâ€™s office in Londonâ€”asserts that Tanzania cannot apply international law to claim the lake.
â€œThe present border between Malawi and Tanzania was first defined and described in Anglo-German Agreement of July 1 1890, which established the limits of the British and German spheres of influence in the area.
â€œBy that agreement [and the Anglo-Portuguese Agreements of 1890-3], the whole of Lake Nyasa was deemed as belonging to the British sphere of influence and the border where it touched the lake, ran down the eastern shoreline,â€ reads a 1969 internal Downing Street background note clarifying the border issue.
But Tanzaniaâ€™s position, as outlined recently by president Jakaya Kikwete, is that the Anglo-German Treaty of 1890 that gave Malawi the sole ownership of Lake Malawi was flawed and Tanzania has every reason to demand this to be corrected.
Kikwete, in his August end-of-the-month address to his country, said the Heligoland Treatyâ€”the agreement between then colonial powers Germany and Britainâ€”denies Tanzanians living on the shores of Lake Malawi â€œtheir given right to utilise proximate water and marine resources to earn their daily livingâ€.
Kikwete, according to a report in The Citizen newspaper of Tanzania published on September 2 2012, argued that the colonial treaty set an unfortunate precedent for Tanzanians yet, on the border between Malawi and Mozambique, boundaries were duly readjusted to give citizens of those countries equal rights of access.
He said the treaty is erroneous because it contravenes international law that requires States to share adjoining water resources.
The 1969 background note followed Nyerereâ€™s letter to British Prime Minister at the time, Harold Wilson, dated October 21 1968, in which he expressed concern that Malawiâ€™s president Banda had announced on September 16 1968 that he was putting patrol vessels on Lake Malawi.
Nyerere had claimed in his letter that the press reported that Britain was supplying three gun boats for that purpose.
He said Banda had also put a vessel on the lake fitted out with arms for him by the Portuguese.
An internal letter to a superior by a Downing Street official, a Mr. Waitland, attached to the background note, said:
â€œWith reference to your letter to David Erighty of October 15, I enclose a redraft of the reply to President Nyerereâ€™s letter to the Prime Minister of September 24 about the border dispute between Malawi and Tanzania.â€
The letter made two landmark conclusions, the first one being:
â€œIt is doubtful whether Tanzaniaâ€™s assertionâ€”as expressed in paragraph 4 [four] of Nyerereâ€™s letter to the Prime Ministerâ€¦that the boundary between the two countries is in the centre of Lake Malawiâ€”could be sustained in law, since the principles of international law, to which Nyerere appeals, could hardly be applied, whereas in the Anglo-German Agreement of 1890 about this particular boundary, one of the riparian States concerned has agreed with the other that the lake lay outside its boundaries,â€ reads the letter.
This position notwithstanding, the memo points out that it might be argued that the definitions of the agreement of 1890 are in terms of â€œspheres of influence and that these may not necessarily entail definitive territorial boundaries.â€
The second conclusion was â€œthat the Tanzanians would have a stronger case for a redefinition of the boundary if they had based this on grounds not of international law, but of equity.â€
The communication we have seen further shows that the 1890 Anglo-German Agreement was maintained when the Protectorate of Nyasaland districts was formed in 1891 and also in 1893 when the protectorate was renamed British Central Africa and in 1907 when it was renamed again as the Nyasaland Protectorate.
According to the communication, when the British role was established in German East Africa and renamed Tanganyika after the treaty of Versailles in 1918, under mandate from the League of Nations, Tanganyikaâ€™s border on Lake Nyasa on the eastern shoreline continued to be of the former German colony.
â€œThis continued to be the case when the British mandate over Tanganyika was continued in the form of a United Nations Trusteeship,â€ reads the communication.
In the documents, Britain also highlighted sources of confusion over lakeâ€™s boundary.
â€œAll the above territorial definitions rest on the terms of the Anglo-German Agreement of 1890, since subsequent Orders in Council, etc. have tended to describe the territories as â€œbounded by German East Africaâ€ [for Malawi] and the â€œNyasaland Protectorateâ€ [for Tanzania],â€ says the communication.
It adds that further confusion arises out of German and British maps of the area which are inconsistent.
â€œThe German maps of 1904 and 1913 show the boundary running along the eastern shore of the lake, but one of 1918 shows it as being the median of the lake. The Colonial Office Map Supplement of 1948 gives the border on the shoreline for its map of Nyasaland, and the middle of the lake for its Tanganyikan counterpart,â€ reads the communication.
The most blatant error, according to the communication, is contained in the map included in the White Paper issued in 1953 on the conference on the Federation of Southern Rhodesia, Northern Rhodesia and Nyasaland, which shows the border running down the median of Lake Nyasa between Nyasaland and Tanganyika.
The Malawi-Tanzania border resurfaced this year following Capital Hillâ€™s licensing of a firm to explore oil on Lake Malawi.
Tanzania now wants a chunk of the water body, which led to negotiationsâ€”first in Tanzania then in Malawi last month. The talks were inconclusive.
Malawi now wants to take the matter to the UN International Court of Justice after the talks in Mzuzu last month failed to resolve the matter, according to Foreign Affairs and International Cooperation Minister Ephraim Chiume.
But Chancellor College international law expert, Dr. Mwiza Nkhata, said in an interview soon after the talks that the world court would not automatically decide on the matter because Tanzania did not give compulsory jurisdiction to the court on interpretation of treaties and questions on international law.
On the Tanzania side, the Mzuzu talks were led by Chiumeâ€™s counterpart, Bernard Membe. That meeting resolved that they should try diplomacy to end the wrangle and that the Attorney Generals of the two countries should interpret Article 1 (2) (IV) of the Anglo-Germany Treaty.
The two countries were expected to meet in Tanzania this month for more talks.
But on Thursday this week, Information Minister Moses Kunkuyu said the meeting the two countries were scheduled to have this September have not yet taken place.
Kunkuyu said there is no latest development on the mater.
He supported the memoâ€™s content, saying it has been Capital Hillâ€™s conviction that the whole lake belongs to Malawi.