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Malawi, Tanzania fail to agree on Lake Malawi border dispute

The week-long talks between Malawi and Tanzania to resolve the border dispute over Lake Malawi ended on Saturday with the two countries clinging to their positions and rescheduling another round of dialogue in Dar es Salaam in September.

Briefing journalists at the end of the talks in capital, Lilongwe, Malawi’s Foreign Affairs Minister Ephraim Mganda Chiume said technical officials from the two countries initially recommended that the dispute be taken to the International Court of Justice (ICJ) but the ministers later agreed to explore further diplomatic options of resolving the issue.

“There was a recommendation that since we are not able to meet half way, then the route to go could be the ICJ.

“The recommendation was submitted to us but there was a feeling that maybe we have not exhausted all options of diplomacy, that we could also look at mediation,” said Chiume.

He said Malawi has accepted to consider mediation as a way of resolving the dispute but said the way forward on the proposal would be determined after the next meeting between the two countries in Tanzania.

“We have allowed that officials look at the issues again in Dar es Salaam. There was also a recommendation that we should give time for our Attorneys General (AGs) to interpret Article 1 (2) (vi) of the Anglo-Germany Treaty.

“But the interpretation has to be done before the 10th of September so that by the time we meet again both countries should have clear legal opinions of the article.

“We feel that this issue has been going on for too long and needs to be put to rest because if that is not done, it can impact negatively on both countries,” said Chiume.

He stressed that the process of resolving the border dispute needs to be expedited to ensure stability among people living along the border between the two countries.

Tanzanian Foreign Affairs Minister Bernard Membe also said the border differences between his country and Malawi remain despite the talks.

He said the two countries need further talks to find ways of resolving the matter amicably.

“We have a dispute and we have agreed that the answer is a negotiated settlement. It’s only through diplomacy that we can really resolve the problem. Both parties are urged to restrain themselves from making provocative statements that may confuse the people.

“We have also urged that any exploration on the lake, especially the disputed part of the lake, should cease or be suspended to allow space for negotiation to take place,” said Membe.

Apart from ICJ and mediation, he said the technical officials have also recommended involvement of a third party.

Membe said he will recommend to Tanzanian president Jakaya Kikwete which route to take after the next round of meetings in Dar es Salaam.

The talks started in Malawi’s northern city of Mzuzu on Monday and continued in Lilongwe on Friday and Saturday.

The border dispute between Malawi and Tanzania has existed for a long time but recently gained momentum when Malawi awarded a licence to British firm Surestream to explore for oil and gas in the lake.

Malawi says it owns the whole lake, arguing that the 1890 Heligoland Treaty between Britain and Germany defined the border between the two countries to be on the eastern shores of Lake Malawi.

On the other hand, Tanzania claims it owns half of the lake as common international law stipulates that water bodies separating two countries must be shared equally.

Malawians want power to remove their MPs

CAROLINE SOMANJE & BRIGHT MHANGO

As they do on matters that affect their pockets and political survival, MPs in 1994 shoved aside their differences, closed ranks and, without blinking, removed Section 64 of the Constitution.

The reason was obvious: The law, also known as the Recall Provision, empowered constituents to remove their MPs.

But this time, the heat is back on them as Malawians have made it clear that they want the dreaded law back in the Constitution to give them the power to remove their MPs if they betray the trust of the people who elected them.

Malawians voiced this wish in a survey Nation on Sunday conducted this week in which we were asking whether they want the law back in the Constitution.

Out of 909 people who participated in the poll, 729, representing 80 percent, said the law should return, while 180 respondents were on the other side of the debate.

Some of the people who objected to the return of the law said it could be abused by those who have an axe to grind with incumbent MPs.

To collect data for the survey, we used correspondents, citizen journalists, our reporters as well as the social media and the short messaging service (SMS). Face-to-face interviews were conducted in 19 districts.

How recall works

Section 64 said an MP was subject to recall by his or her constituents where a petition has been upheld by the Malawi Electoral Commission. It was incumbent upon petitioners to prove, on the balance of probabilities, that there was sufficient proportion of the electorate within that constituency, being not less than half of the total of registered voters, who desire that the seat representing the constituency should be contested in a by-election.

When removing the law, MPs argued that Malawi does not have the resources to hold regular by-elections that would arise from the law. They also said the law could be abused by people who have an agenda against the sitting MP.

The decision to repeal the provision attracted widespread condemnation from Malawians who said it was made to save MPs’ skins.

And so it was that when the issue was floated in the survey, the sentiments reflected the outrage that greeted the removal of the law in 1994.

Said one respondent: “The law should be brought back forthwith. These politicians take us for a ride. Besides, it will put them under pressure, which will eventually force them to perform even better.”

One of the respondents who opposed the return of the law said the potential for abuse is there now as it was at the time the provision was removed.

“The issue is more complex than just accountability of an MP. Our electoral system (First Past The Post) allows one to win a parliamentary election even with 35% of the total votes cast. It is easier for the losers to gang up with the 65% wasted votes to recall a representative maliciously. The recall provision would be a better option if we change our electoral system first, maybe to a two-round system,” he said.

When it was put to some MPs within the week that people are clamouring for the Recall Provision, which would be a scourge for them, six nodded to the idea with conditions, two gave a straight yes, two were against it while one asked for more time to think about the issue.

Need for rephrase

Those who put up conditions said there is need for proper guidelines to underpin the recall process as they feared that the law could be abused by their opponents or political rivals.

Said Ken Kandodo, MP for Kasungu South: “The Recall Provision is okay in principle to have in the Constitution, except it needs to be phrased tightly to protect it from abuse. Drafters of the Constitution should ensure proper procedures to be followed so that the general public should not abuse it for personal reasons.”

Professor Peter Mwanza, MP for Mzuzu Central, said the status quo should remain as the section lacked clear procedures. He said the key is to strengthen Section 65 to prevent MPs from being nomadic.

“It was repealed because people spoke and were against it. It was unnecessary. What people decided at that time was for a good reason. It was subject to abuse,” said Mwanza.

Chancellor College political analyst Dr Blessings Chinsinga said findings of the survey reflect a sense of helplessness among Malawians that they cannot control their MPs after electing them.

“…having 17 or so years of experience, people have realised that they are totally powerless once they elect someone into office and the people feel there is need to control their representatives and make sure they do not behave as bosses.

“The constitutional review report recommends that the Recall Provision be reintroduced. All that is needed is to advocate for its implementation and if MPs are still not convinced then a referendum should be called,” said Chinsinga.

Safeguarding the law

He said it is crucial to institute safeguards to ensure that there is no abuse of the law.

Chancellor College law lecturer, Dr Edge Kanyongolo, agreed with Chinsinga that without safeguards, the possibility of abuse is there.

The two said the issues and grounds that warrant a recall should be clearly spelt out in the law. They also said there should be mechanisms to allow the accused MPs to be heard in keeping with the laws of natural justice.

“My proposal is that 50 plus one percent of the constituents should sign a petition and after that the MP should be heard and some kind of referendum sanctioned where the MP can campaign against the recall and then let the majority of that vote decide,” said Chinsinga.

On whether MPs can pass the law, Kanyongolo said they are unlikely to do so because the issue hinges on their survival.

But he said if MPs truly represent Malawians, they can make an effort to go to their constituents and do a small poll on the matter.

Human rights activist Billy Mayaya presented his model proposing how the provision should be effected if passed into law.

He said there is need for expansive legal reforms to address the role of the Malawi Electoral Commission as well as to add greater detail on how the nature and scope of the recall will take shape.

Said Mayaya: “Procedurally, any registered voter in a given constituency would have the right to file a recall petition as long as it is established that individual is a voter in the constituency where the recall will take place.

“All details will be written on an official form labelled Intent to Circulate Recall Petition in Constituency X. The petition will include the signatures of 25% of the number of registered voters who took part in a preceding parliamentary election and all this must happen 60 days from the date of presenting the recall petition to the Speaker of the National Assembly.”

He said the targeted MP should be given 10 days to challenge the validity of the signatures.

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