STATEMENT BY HON. BERNARD K. MEMBE, TANZANIAN MINISTER FOR FOREIGN AFFAIRS AND INTERNATIONAL COOPERATION DURING THE MEDIATION WITH THE HIGH LEVEL MEDIATION TEAM OF THE TANZANIA- MALAWI BOARDER DISPUTE
Your Excellency, President Joachim Chissano, Chairperson of the High Level Mediation Team,
I bring warm greetings from the Government of the United Republic of Tanzania under the leadership of our President His Excellency Jakaya Mrisho Kikwete.
We would also like to thank the high level Mediation Team, for the wonderful hospitality that you have accorded to us since our arrival here in Maputo, Mozambique. My team and I have faith in you and your esteemed panel and that in the end we hope to resolve this problem.
My colleague from Malawi, has maintained by the authority of Article I (2) of the 1890 Anglo-German Agreement that the border between our two sister countries is in the shorelines. Now this is disputable. We have taken trouble to put in writing a few times to the High Level Mediation Team.
And today, in this meeting, we will be able to show, demonstrate and prove that in fact the only logical way to resolve this crisis between Malawi and Tanzania is to put that boarder on the median line.
….because even common sense can sense, that this lake was not manmade, it was not made by the Government of Malawi for its people. It was created by our Almighty God for all of us, and the word us is Mozambique, Tanzania and Malawi.
There can be no person on this earth, who can take ownership of, saying all this is mine, particularly towards the international body of water that divides the three countries.
You just cannot have a claim to say all this water is mine. This is a common heritage; it is a heritage of three peoples from the time of its creation to date despite the intervention of the 1890 Anglo-German Treaty. It is a common heritage, and if you want, it is a triple heritage given by God for these three peoples to enjoy.
They have been doing so, they are doing so and they will continue to do so. Because it is their waters.
The best practice has shown, that the 1890 Agreement Article I (2), were not conclusive,
…..and this team of expert that I bring with me today will just confirm that the 1890 of Anglo-German treaty article 1 (2), were not conclusive at all. The only article that makes conclusion and that must be taken seriously is Article VI…. of the Anglo German Treaty.
Article 6 raises the conviction that the two powers must sit, taking into the account the local conditions…
….And Chair let me tell you something that you may not know, the debate in 1890 was the hottest debate of the century. It was not easy to agree on the 1890 article II and I.
It just wasn’t easy. People had brains at that time. And the only caveat that they put in order to move forward, was to produce article VI in order to give powers of the then at that time, and of the current time to be able to sit and make rectification that fits the local conditions. Hadn’t there been an article six, we wouldn’t be here.
And this Article VI had been practiced; it was practiced in 1901, when the Songwe Dispute came about. It was practiced in 1914 in Lake Jipe, even after the signing of this treaty, which is controversial.
But elsewhere it was also practiced; …it was practiced in the 1958 by the Aglo Portuguese Agreement after the 1890, which shows you that the Article VI is so fundamental, so fundamental indeed that the powers had to form the joint boundary commission all the way to rectify the intolerable, and that is what we need. And this is what we ought to legitimately do.
We would have done this in the 1960s but how could we have done so when our two leaders of the two powers, that is Malawi and Tanzania, were caught up in their ideological liberation wars. While Tanzania was supporting the liberation wars in South Africa, the leader of Malawi was embarrassing apartheid in South Africa and we would never have anticipated that the two Presidents would seat together to resolve this crisis.
And then came the rhetoric’s, now my brother is quoting President Nyerere emphatically, I will produce an answer here, but before I do so, let me remind the chair that President Banda during the very same time, made very very explosive statements on the boundary not only did he mention the boundary is on the shoreline of Lake Malawi, far from it, he went beyond it, to even claim Ruvuma, Songea, Mbeya, Njombe, as his area, as this boundary of Malawi.
We don’t hear them now say that after this dispute they will now come to really undermine the statement of President Banda claiming all this area as their establishment. They don’t mention that. Why? ..because they sat down and said these political statements can not make boundaries.
The political statements of leaders cannot make boundaries, but they are very selective they pick on what Nyerere said, not on what President Banda said. (With chuckles) I wanted to ask my friend after this, are we going then to ask about Mbeya, Ruvuma, Songea, or you have negated them?
….But let me come to the answers to this question, cause the issue here is the statements made by the political leaders or senior officials both before or after independence, give title to Malawi of the whole lake. I will read to make this point for my friend.
The answer to this question is in the negative, our position and that is Tanzania’s Position, is established on the principle of international law that unilateral statements made by senior political leaders are not legally binding upon the parties.
This principle, was established by the International Court of Justice in the boundary dispute between Burkina Faso and the Republic of Mali as it is reported in the ICJ reports of 1996 in para 40 is relevant.
“Since no agreement of this kind of conclusion between the parties, the chamber finds that there are no grounds to interpret the declaration made by Mali’s head of state on the 11th of April 1975 as a unilateral act with legal implication in regard to the present case.”
Therefore the Tanzanian position is that boundaries are not affirmed by statements by senior government officials, they are negotiated and agreed by way of treaties.
The mandatory procedures, envisaged by the provision of the Article VI of the Anglo-German Agreement cannot be abrogated by the statements of senior political leaders. These conditions mandatorily require rectification of the boundary by agreement and in accordance of the local requirements.
This is the answer to the statements repeatedly put forward by my colleague with the respect of the statement made by our late President Mwalimu Julius Kambarage Nyerere.
…Now…as I have said, we will put the case, we will reiterate our position of whether the boundary required rectification as provided for under the Article VI of the 1890 Anglo – German Agreement.
We will put our case clear of where the demarcation of the boundary was determined by Article I(2) of the 1890 Agreement.
We will again emphasize our answers on whether the boundaries is within the shoreline or the median line and we have said it is right in the middle of the lake...... and the argument here is very clear.
The 1964 AU declaration does not stop and let me repeat does not stop any country which is in dispute with its boarders to pursue this matter just because the declaration say you must respect individual boarders.
You have more than 21 cases at the AU of boarder disputes …..that the countries must seat down, and negotiate these issues. So the 1964 kind of declaration does not close the doors to resolve the boarder disputes by peaceful means.
As I have said, we have a lot to do today, and I end here for my statement with a quote on AU’s declaration.
Kitengo cha Mawasiliano ya Serikali kwa Umma
Wizara ya Mambo ya Nje na Ushirikiano wa Kimataifa