Concern over Malawi’s decision on arbitration

LAST week, Malawi indicated that it wished to give up mediation of its dispute with Tanzania over Lake Malawi by the Southern African Development Community (Sadc) in favour of the International Court of Justice arbitration.

Malawian President Joyce Banda said the mediation efforts — led by Joaquim Chissano, Sadc’s chairman of the Forum of Former African Heads of State and Government and Mozambique’s former president — had been compromised.

She pointed an accusing finger at the forum’s executive secretary, John Tesha, who is a Tanzanian national, for leaking documents submitted by the Malawian government on the dispute to the government of Tanzania before the latter made its submissions.

The longstanding but previously dormant dispute between the two countries was reignited early last year when rumours surfaced that there might be oil deposits underneath the lake. The situation escalated after Malawi awarded a licence to the British firm Surestream, allowing it to explore the lake for oil and gas.

In December, the government awarded the second-largest oil exploration licence (after the Surestream licence) to South African company SacOil. So far, neither oil company has begun drilling yet and are still exploring the centre of the lake, which has been cordoned off. Malawi is claiming sovereignty over the entire lake, while Tanzania is claiming half of it.

Under the 1890 Heligoland border treaty signed between the countries’ former colonial masters, Britain and Germany, most of the lake belongs to Malawi. However, Tanzania has argued that according to the international law of the sea, the lake should be divided down the middle. Tanzania is in pursuit of becoming a regional energy hub following major discoveries of natural gas offshore.

Malawi’s position in favour of the International Court of Justice’s arbitration is not new. After last October’s failed bilateral talks between the Sadc neighbours, Malawi said it wanted the dispute taken to the court for arbitration, while Tanzania preferred mediation by a former Sadc head of state.

Malawi eventually agreed to Sadc mediation but Ms Banda later said this was because the country did not want to be seen as snubbing the regional bloc following Tanzania’s proposal that the lake dispute be referred to the African body.

Some Malawian analysts, nonetheless, believe the odds at the Sadc have always been against Malawi, given that Ms Banda is a relatively new leader who may not have determined who her allies are within a region in which liberation war camaraderie still holds sway.

“Malawi does not have much sympathy from former freedom fighters in this region because of its support for the failed Renamo (rebels in Mozambique) and close relationship with the then apartheid South Africa,” commentator Cedrick Ngalande wrote. “Arbitration by leaders in this region between Malawi and any Sadc country are therefore likely to be highly skewed against us.”

Moreover, Mr Chissano was Frelimo’s representative to the Tanzanian government during the 1964-74 period. He is seen by some Malawian analysts as having close links with Tanzanian mandarins and they fear he would actually take sides with his “second home”.

But Malawi’s preparedness to revert to its earlier preference for the International Court of Justice could see the country accused of undermining the efficacy of African institutions and their positions.

Last year, Malawi’s cancellation of plans to host the African Union (AU) summit in July, after the continental body insisted that Sudanese President Omar al-Bashir attend, sent shock waves across the continent, and allegations of defiance and betrayal were made against the country.

Ms Banda had insisted that Malawi would co-operate with the International Criminal Court, to which it is a state party, and have Mr Bashir — who has been charged with alleged war crimes, crimes against humanity and acts of genocide in Sudan’s Darfur region — arrested if he entered Malawi.

There were concerns that in doing so, Malawi was violating its obligations under the AU Constitutive Act, as the continental body has enjoined all its member states not to co-operate with the International Criminal Court on this specific case.

Having a former Sadc head of state mediate the Lake Malawi dispute significantly resonates with regional tradition and may enjoy the benefits of proximity. But this betrays a structural flaw in Sadc — its lack of a standing regional mediation architecture, which has only recently become the focus of remedial action.

Over the years, the regional body’s mediation has been on an ad hoc basis, with eminent leaders such as Nelson Mandela, Thabo Mbeki and Jacob Zuma of South Africa, Frederick Chiluba of Zambia, Eduardo dos Santos of Angola, Ketumile Masire of Botswana, and Joaquim Chissano of Mozambique being called upon to intervene in troubled countries such as the Democratic Republic of Congo, Lesotho, Madagascar and Zimbabwe.

The dispute over Lake Malawi will eventually have to be addressed from a legal angle, but it may be problematic for Sadc to accommodate the case, as the regional tribunal, which had been responsible for deciding intergovernmental disputes, was suspended in 2010. Against this backdrop, it is crucial that Sadc speedily completes the establishment of regional mediation mechanisms to more efficiently and effectively address intra- and interstate conflict.

The regional body should also speedily renegotiate the protocol on the tribunal and ensure ratification by member states in order to facilitate its reinstatement and operationalisation.

The Lake Malawi trans-boundary resource dispute is complicated by the fact that only about 25% of the borders in Africa are demarcated. Like many disputes on the continent, it is essentially over the control of natural resources.

Indeed, it is rumoured that the lake contains vast oil and gas deposits. Friction similar to that between Malawi and Tanzania may well start materialising elsewhere, such as Uganda and South Sudan or Uganda and Congo, where similar resource and geographical realities could influence the peace and security situation. This makes it imperative for regional economic communities to put in place mechanisms not only to mediate conflicts over borders, but also to demarcate them.

Ultimately, as witnessed in similar border disputes between Sudan and South Sudan, and Ethiopia and Eritrea, the outcome of any intervention, by either a regional or an international body, would not necessarily be self-implementing or self-enforcing. It would depend on the related political will of the parties involved.