By Banthu Times Chief Reporter 15/08/2013
Tanzanian’s draft constitution released in early June this year does not recognize water bodies, Lake Malawi known in Tanzanian as Lake Nyasa being as part of the United Republic of Tanzania.
According to Tanzanian Citizen Newspaper, that country’s law experts have noted the flaw as working in disfavor of their country in the ongoing lake wrangle with Malawi.
The border row, which is more than 40 years old, resurfaced after Malawi discovered Oil in the Lake.
Malawi claims sovereignty over the entire Lake Malawi, Africa’s third largest, based on the Helgoland Treaty, a colonial relic, while Tanzania claims under international law it is entitled to over 50 percent of the Lake.
Section 2 of Chapter I of the draft constitution states: “The area of the United Republic is all area including the area of the sea and all the area of Zanzibar including its area of sea”.
This description, according to legal experts, excludes lakes and rivers, the paper said.
Prominent lawyer Evod Mmanda said this is one of the many loopholes in the draft constitution, which need to be addressed.
“Technically this means that rivers and lakes in the country are not part of Tanzania as the document specifically spells out seas, this means any other country like Kenya or Uganda can as well claim Lake Victoria being their area and win the case” he said.
Mmanda said that the Constitutional Review Commission (CRC) ought to have been keener much as it just copied almost everything from the Kenyan Constitution.
He said the neighbouring country’s Mother Law has used a more general term of ‘all water bodies’ and not just specific on seas.
Tanzania’s Legal and Human Right Centre (LHRC) Harold Sungusia agreed with Mmanda saying the draft constitution needed many improvements.
“It is true that the section of the draft constitution does not include other water bodies as part of the United Republic of Tanzania and this is very serious omission,” he said.
The former heads of state of Botswana, Mozambique and South Africa respectively, have formed a panel that is trying to solve the Lake border row between the two countries.
Festus Mogae, Joaquim Chissano and Thabo Mbeki respectively have formed a panel.
If the dispute is not resolved within three months by the SADC Forum, the Panel will present the case to the International Court of Justice (ICJ). The ICJ has always ruled in favor of a median border, according to the website, mining in Malawi.
The Tanzania government has several times reiterated that it will not go to war with its neighbor Malawi over the much hyped and controversial lake border row saying it is pleased with the mediation process.
In its submission to the Southern African Development Community’s Forum of Former African Heads of State Malawi said the United Nations Convention on the Law of the Sea (UNCLOS) or legal instruments addressing trans-boundary watercourses are invalid arguing that the Anglo – German treaty of 1890 on which most borders in Africa are based has the overall authority.
Malawi also questioned the legitimacy of the 1890 treaty could have grave consequences for regional stability saying even countries such as Kenya and Tanzania, DRC and Tanzania, Tanzania and Zambia, Ivory Coast and Togo and boundaries in the Lake Chad are based on the same treaty.