Migingo Dispute Needs an African Solution
The Kenyan parliament on Wednesday passed a motion that essentially declared war on its historic neighbour Uganda by authorizing President Mwai Kibaki to deploy the military in case diplomacy fails in the ongoing row over Lake Victoria’s Migingo Island.
The Kenyan parliament on Wednesday passed a motion that essentially
declared war on its historic neighbour Uganda by authorizing President
Mwai Kibaki to deploy the military in case diplomacy fails in the
ongoing row over Lake Victoria’s Migingo Island. The motion also called
on the United Nations (UN) to intervene in the dispute. This act is a
fatal blow to the peaceful efforts that are under way to solve the
disputes along the common boundary between Kenya and Uganda.
The Kenyan parliament’s action is a clear indication of its lack of
understanding of diplomacy, its sensitivities and the repercussions of
its failure. By undercutting a peaceful effort through a declaration of
war, the parliamentarians utterly disregarded the consequences of a war.
Whereas one can interpret this act of parliament as a display of its
frustration with the Kibaki administration, it is also a display of the
lack of coherence and coordination within and between the government
branches in the country. It also illustrates the lack of understanding
of how the UN works and the existing African peace and security
architecture that requires disputes such as the one over Migingo to be
solved through the principle of subsidiarity.
Under this principle, the UN can only intervene as the last resort
after sub-regional organizations and the African Union (AU) have failed
or when they ask for the support to complement their efforts.
Accordingly, the sub-regional organizations that have a comparative
advantage in intervening in the Migingo dispute are the East African
Community (EAC), the Inter-governmental Authority on Development (IGAD)
and the Community of Eastern and Southern African States (COMESA). Both
Kenya and Uganda belong to all these institutions.
Kenya’s parliament should also know that since the beginning of this
decade Africa has embraced the mantra of “African solution for African
problems” that essentially commits countries such as Kenya and
organizations such as the EAC to exhaust their peaceful efforts of
solving regional problems before the international community is called
to assist or intervene.
The Kenya parliament appeal to the UN is an understandable expression
of its frustration after watching the lukewarm reaction of the EAC to
the crisis. The EAC has so far addressed the issue through its
legislature, and its current chair, president Paul Kagame of Rwanda. The
AU has not uttered a word despite having recently set-up a borders
programme that aims at demarcating African boundaries as a way of
preventing conflicts and promoting regional integration.
The EAC, IGAD and COMESA are all aware that of the correlation
between regional integration and sustainable peace. With this knowledge
one would expect them to take proactive measures in promoting peace and
stability in their respective regions.
It is ironic that the EAC recently sent a very high-powered
delegation to North America to attract investment into the region while
conflicts are simmering over easily soluble disputes such as the Migingo
ownership. Besides the recent wishful statement of its secretary
general that row over the island does not pose a threat to regional
peace and stability, the EAC has yet to give the people of region an
idea on what it is doing about Migingo and other similar border
disputes.
Indeed an adequate framework exists within the EAC to address this
problem without the UN or the AU taking the lead. However these two can
still play complementary roles of guaranteeing whatever agreements are
arrived at between the two parties.
Within the EAC framework, the following approach can be used.
President Paul Kagame of Rwanda as the chair should convene an emergency
meeting of the EAC summit with the Kenya-Uganda border dispute as the
only agenda item. The expected outcome of this meeting would be to take a
decision to either refer the matter to the East African Court of
Justice (EACJ) or to form a border commission supported by technical
teams to review and demarcate all its member-states’ boundaries.
Alternatively, the East African Legislative (EALA) can also refer
this dispute to the EACJ. Although the jurisdiction of the EACJ is not
stated on matters related to border disputes, it can be assumed that
since it operates under “the principle of complementarity,” according to
Article 7(1)(g) of the Treaty, it will take up this matter when brought
before it in the spirit of promoting an AU objective of allowing
regional mechanisms to address issues related to peace and security.
The EACJ jurisdiction over the matter will fall under its mandate to
ensure “compliance” with the EAC Treaty, particularly Article 8(1)(c),
which requires member states to “abstain from any measures likely to
jeopardise the achievement of those objectives or the implementation of
the provisions of this Treaty.” Both Uganda and Kenya would be required
to show their commitments to East African cooperation by respecting
Article 6(a) of the EAC Treaty which requires members to show “mutual
trust and political will” in their relationships.
If the EACJ fails to resolve the dispute, then the parties can refer
the matter to the International Court of Justice (ICJ), which has since
1947 arbitrated in 27 border disputes, 13 of which were referred by
African parties. The preference of the arbitration to resolve border
disputes has immensely contributed to creation of durable peace and
security on the continent.
The present approach is not only costly but also unproductive in the
end, as it would not produce the desired result of solving Kenya’s
border disputes with its neighbours. The main shortcoming with the
present survey exercise is that it does not have a legal ground. The
Munyonyo communiqué of 13th March on which it is based has no legal
standing in international law.
The right approach would have been for both Presidents Kibaki and
Yoweri Museveni of Uganda to sign a declaration of principles agreement
that would among other things establish a bi-national boundary
commission to address all issues related to delimitation and demarcation
of the common border.
This should have been followed by acts of parliament since the work
of the commission relates to territorial and sovereignty matters. The
names of members of the commission should also been endorsed by
parliament or gazetted. Due to its lack of such legal foundation, the
work of the present survey team could easily be overlooked or challenged
in a constitutional court.
It is not too late to right the wrong by applying a simple approach
that would inevitably guarantee the best and most acceptable solution to
the border dispute - a legally binding African solution to an African
problem.
Dr Wafula Okumu, Senior Research Fellow
African Security Analysis Programme, ISS Tshwane (Pretoria)
