Migingo Island: What 1926 boundaries say

By Odoobo C. Bichachi

But should Uganda go to war with Kenya?

Last week, Kenyan youths in Nairobi’s Kibera slum ripped away a section of the Uganda-Kenya Railway as demonstration of anger against Uganda’s ‘occupation’ of the disputed Migingo island in Lake Victoria.

Earlier in the week, the Luo-Nyanza council of elders meeting under the aegis of the Nyanza Strategic Recovery Forum in Kisumu had threatened to block the highway to Uganda if the country [Uganda] did not immediately and unconditionally vacate the disputed Migingo Island. In the meeting chaired by Kochiel Oloo, the forum chairperson, the leaders resolved to mobilise the locals to block the transportation of goods and fuel to Uganda if her troops do not leave the island.

Indeed days later on April 16, Kenyan police fought running battles with youths who had placed logs, stones and other objects along the Kisumu-Kericho road to block transit cargo trucks to Uganda.

The Kibera and Kisumu actions are reminiscent of the 2007 post-election violence in Kenya in which the railway line was torn apart (again in Kibera) and Ugandan registered heavy haulage trucks ambushed to punish Uganda for allegedly siding with the Kibaki government that had stolen the presidential election. The disruptions caused a shortage of fuel and other imports, nearly bringing the Ugandan economy to its knees.

‘Because the [Kenya] government has failed to help our brothers in Migingo, we will do it in the manner Ugandans understand best. Ugandans need to know we feed them. They should not try to intimidate the hand that feeds them,’ a youth is quoted saying in Kenya’s daily newspaper, The Standard.

These actions are riding on a wave of rhetoric, demagoguery and hysteria by Kenyan politicians and the media that have over the past several weeks galvanised the country with many calling for war with Uganda to recover the island.

Kenya’s Assistant Defence Minister David Musila was quoted in the press saying; ‘Uganda has literally annexed Kenyan land by hoisting their flag and deployment of the security personnel at Migingo,’ adding, that ‘what Uganda [is] doing was tantamount to aggression.’

Kenyan MPs Simon Mbugua (Kamukunji) and Omondi Anyanga (Nyatike) were also quoted in the local press challenging President Mwai Kibaki to speak out and show some macho: ‘If you cannot protect an island, how can you protect the whole country,’ Mbugua asked.

Another seven MPs led by Nicholas Gumbo (Rarieda) petitioned President Kibaki to declare Uganda a ‘hostile neighbour’ and forcibly take control of Migingo Island. They demanded that the navy and army be sent to the island. ‘Uganda is no longer a friend. It has invaded our land and it is time we acted to protect our sovereignty,’ said Gumbo.

Last week, the hysteria that has consumed the Kenyan media reached a crescendo with an April 17 headline in The Standard: ‘Revealed: The truth on Migingo!’.

The article went on to disparage the joint boundary demarcation taskforce set up by the two governments a few weeks ago.

‘The combined governments of Kenya and Uganda require two months to determine the case ‘” but we today reveal the truth about who owns the island. The Standard team took just one week to lift the lid on the vexing question ‘” it is Kenya’s. Period. And as politicians and government functionaries took Kenyans round in circles through diplo-speak, colonial maps from 1917 and updated in 1946 exclusively published in The Standard today indicate that Migingo ‘” then known as Ugingo ‘” is our sovereign territory. The maps define the boundaries of the then British territories of Kenya Colony and Protectorate, and are considered the authority in determining the boundaries. In the map, Pyramid and Ilemba islands are shown as belonging to Uganda,’ the newspaper article read in part.

Taking a cue from its politicians and the media, several Kenyan internet blogs are awash with discussion of Migingo, with many agitated comments calling for war or the overthrow of ‘weakling’ President Mwai Kibaki and ‘confused’ Prime Minister Raila Odinga.

‘Let us face the truth; Kenya is too soft on the Migingo row. How long will (Uganda President) Museveni continue bullying people of Great Lakes Region. Tz, Rwandans, Sudan and DRC all tired of this man. Uganda has never won any war; they failed to catch Kony, failed in DRC and are failing in Somalia. Kenya needs a military leader to deal with all the increasing insecurity in Kenya, Somalia and the entire region,’ said one blogger on http://majimbokenya.com. The website has posted photos of Kenyan military personnel, equipment and armour, perhaps to demonstrate the country’s military abilities.

Another blogger on the same site posted this: ‘Time out for Museveni, Kibaki and Raila. The Kenya PM is another confused fellow, he does not see the future clearly, begging for power from his own government, he has the power to order the Kenya Navy to have their presence in Lake Victoria, he has the powers to order the security to take action. Kenya Navy presence is needed in Migingo as the negotiation is on. Raila should not behave as if he is an assistance minister, crying daily in the press. Mr Odinga seems confused to me too; does he really know that he took oath to protect Kenyans. No country plays politics with borders; Raila’s behaviour in this saga clearly shows us his weakness, even if he became President of Kenya. Sending Kenya Navy units to Lake Victoria will cost Kenya nothing.’

Yet another blogger at http://kenya.rcbowen.com posted this: ‘If I was Kibaki, I would use this opportunity to display my military might. Every man has that deep seated desire to twanga [beat] another man shitless. At least he would leave with the legacy ‘˜That Kabaki was a fence sitter, but if you ate his goat, may God help you!”

Ironically as Kenya works itself into frenzy, Ugandan authorities and the public have been calm, preferring to wait for the findings of the joint boundary commission.

‘There is no need to get excited. We know where the island belongs ‘“ in Uganda, and this will be established soon when the joint commission completes its findings in the next one month,’ Bukhooli South MP Patrick Ochieng in whose constituency the disputed island arguably falls told The Independent last week.

The Uganda media too has been sober in its reporting of the dispute, except perhaps for the Kenyan-owned Nation TV (NTV) in Kampala which has periodically transplanted Kenyan news clips to its Ugandan audience complete with Kenyan reporters without sensitivity. The TV station is managed by Kenyans ‘“ at editorial, business and even management level.Â

So where is the truth in all this? What could be the likely regional fallout when the dispute is finally resolved ‘“ diplomatically or militarily, that is if sections of the Kenyan public and politicians have their way?

So who owns Migingo?

The word ‘migingo‘ means abandoned in Luo and indeed for years, the three islands collectively known as Migingo in Lake Victoria near the Tanzanian border had no human habitation.

Squabbling over dwindling fishing resources has however put one of the islands in dispute. A joint Kenyan-Uganda technical committee established to study and demarcate the border is expected to report its findings to the two governments on May 15.

While the Luo of Kenya might have given the islands their current name, their sovereignty will be determined by the 1926 British colonial demarcations that established the two countries.

The team will therefore mainly rely on the very elaborately written-out British Order in Council of 1926 that established the current Uganda-Kenya boundary complete with coordinates, pillars and natural features. It will also rely on Schedule 2 of the Uganda Constitution (1995) ‘“ which was simply transplanted from Schedule 1 of the 1967 Uganda Constitution, The Kenya Colony and Protectorate (Boundaries) Order in Council 1926, and Kenya Legal Notice No. 718 of 1963, Schedule II Boundaries, Part I, the Districts, 37. Busia District, pp. 290’“2.

The Independent has seen the contents of these documents (see quotes from Uganda and Kenya

constitutions) and they are fundamentally in agreement save perhaps for the fact that the Uganda Constitution’s starting point of delineating its eastern border is at the tri-point of Uganda, Kenya and Sudan which is approximately 31.5 miles north of Mt Zulia and ending at the tri-point of Uganda, Tanzania and Kenya which is at the first parallel south (1Ëš south latitude) and approximately 33Ëš 56´ east longitude. Kenya’s boundary delineation on the other hand begins in Lake Victoria, at the Tanzania, Uganda and Kenya tri-point (which is not in dispute) and ends at the Sudan, Uganda and Kenya tri-point.

The same information is contained in ‘International Boundary Study No. 139 ‘“ August 27, 1973 of Kenya ‘“ Uganda Boundary’ by the US State Department, and another publication; ‘African Boundaries: A Legal and Diplomatic Encyclopaedia‘ by Ian Brownlie of Royal Institute of International Affairs and published by C. Hurst & Co. Publishers (1979) in which the Kenya-Uganda border is described on page 946.

Overall, the Kenya-Uganda boundary extends for approximately 580 miles (933 kilometres), and the Lake Victoria segment is approximately 86 miles (138 kilometres). It is important to note that the colonial boundary demarcations in Lake Victoria followed natural features that principally included the thalweg of River Sio and a chain of islands with straight connecting points.

A thalweg is defined in English (geology) as ‘the line defining the lowest points along the length of a river bed or valley. In international law, it is regarded as ‘the middle of the main navigable channel of a waterway that serves as a boundary line between states.’

The Uganda-Kenya Lake Victoria boundary therefore starts (or ends whichever way you choose to look at it) in the middle point of the mouth of River Sio near Majanji, runs in a straight line up to the northern most point of Sumba Island, following the western shore of the island up to its southern most point and from there in a straight line to the northern most part of the next island, Mageta, through the same straight course to the next Ilemba (or Remba) island straight to the next Kiringiti (or Ringiti) island and straight to Pyramid island and then straight to the Tanzania, Uganda Kenya tri-point at 1˚ south and 33˚ 56´ east.

It important to note that all the islands that were used as natural boundary features lie wholly in Kenya with Uganda owning all the water west of the islands up to the shoreline and any islands west of those islands and the straight line between them.

The answer to the current dispute therefore lies with the Pyramid island demarcation. Pyramid Island apparently forms part of the three islands known as Migingo and it takes its name from its pyramidal shape. It is wholly in Kenya and there is no dispute about it. The third island lies further south and it is wholly in Uganda, and there is no dispute about it. To determine in which country the disputed one-acre Migingo lies is therefore a question of determining whether it is west or east of Pyramid. If it is west, then it is in Uganda and if it is east, then it is in Kenya. Period!

According to Bukhooli MP Ochieng, ‘That Migingo Island is west of Pyramid and even the Kenyan fishermen in Uganda know the truth. It is the only one of the three islands where a boat can dock. When we visited the place with Kenyan MPs, they were shocked and some conceded that they had spoken without knowing what’s on the ground. They said their problem is how to manage the politics so that they appear to have taken something back home,’ he told The Independent.

Google Earth images which the MP said do not give accurate representation of distances also show that the disputed island is west of Pyramid Island. However, Google Earth inaccuracies have been apparent and are adding to the confusion. When The Independent published an article titled ‘Politics of Fish in Migingo Dispute‘ in our Issue 50 of March 6-12, Google Earth indicated Mageta Island as Migingo A and another unknown island side-by-side as Migingo B. The two islands were located south of Sumba Island and adjacent to Sigulu Island. Google Earth has subsequently updated its images now showing the disputed island as Migingo C further south and west of Pyramid which is not named but whose shape is unmistakable when zoomed in.

The confusion, it is apparent, has not been limited to Google Earth but even to the old maps Kenyan politicians and media seem to be hanging onto when mapping technology of the early 20th century could never have been 80% accurate.

For instance in the 1917 and 1947 maps which Kenya’s The Standard newspaper published last week as the most authoritative on the issue, the paper claimed that ‘in the map, Pyramid and Ilemba islands are shown as belonging to Uganda’. Should Kenya use these maps as the definitive authority, not the 1926 British Order in Council documents or their constitution, then the country could lose both islands ‘“ which are much bigger than the disputed Migingo ‘“ to Uganda, perhaps sparking even a bigger crisis.

Why is Kenya war-mongering?

To understand Kenyans’ hysteria over Migingo, pundits have pointed to two factors ‘“ the dwindling fish resources of Lake Victoria, and the political and ethnic fissures in the country that are a spillover of the violence that followed its December 2007 disputed presidential election.

The orchestra leading the tirade over Migingo has been mostly the opposition and Luo leaders like Lands Minister James Orengo, Prime Minister Raila Odinga, etc but also PNU politicians disgruntled with President Kibaki’s leadership. Both these groups lead a constituency whose hopes were raised in the 2007 ethno-election but who have got nothing to show from the coalition government more than one year later.

The coalition government is itself under severe strain following several incidents of intra-party and inter-party disagreements. Only three weeks ago, two PNU ministers Martha Karua and Dickson Mungatana resigned. The credibility of leading opposition leaders like Agriculture Ministers William Ruto and Raila Odinga is also under the spotlight with allegations of corruption in the food storage scandal that rocked the country recently.

Kenya is still consumed by the fallout of the ethnic conflicts that saw more than 1,500 people murdered in the post-election violence ‘“ much of it graphically captured on international television stations. Many senior politicians fanned this violence and have been named in the famous former UN Secretary General Kofi Annan ‘envelope’. They could be tried for crimes against humanity either in Kenya or failure of that, in The Hague.

The country is also in the midst of a famine with more than three million people facing starvation. In parts of the country, people are boiling old goat skins and cow hides for a meal.

Added to that is the strained economy that has not fully recovered from the election crisis and now with the world financial crisis has spewed hundreds, if not thousands, of Kenyans out of jobs.

In short, Kenya is experiencing a potentially explosive mix; a socio-political and economic crisis that some of its leaders seem to be addressing through rhetoric and demagoguery and may even be willing to go to war to deflect domestic pressure. It is an old trick in the political books.

Uganda’s State Minister for International Affairs Henry Okello Oryem however downplays the potential of the crisis to go out of hand.

‘Contrary to what you are exaggerating in the media there is no cause for alarm. I can assure you that in principle the two countries are in contact and all the modalities agreed on to end this confusion on Migingo are being worked on. The two army chiefs of Kenya and Uganda are in contact, the police chiefs are in contact and there is absolutely no cause for alarm,’ Oryem told The Independent.

Asked to comment on the recent outbursts by some Kenyan politicians who urged their citizens to defend what they termed as Uganda’s aggression including cutting the rail line in Kibera, Oryem insisted that that was an internal matter which can only be answered by those Kenyan politicians.

‘I can’t comment on that. Ask them why they are doing that. However, those are self-seeking politicians who are targeting cheap dividends out of the whole thing. But I don’t think they will go very far,’ he concluded.

What is the likely fallout?

It is apparent that Migingo will not be resolved by war not just because of the utter foolishness of such a venture but also the impracticability of it (the little island cannot hold a battalion of soldiers) unless the war is fought on land ‘“ at Busia, Malaba, Suam, or any other border areas.

Yet whichever way the Migingo dispute is resolved, there will be far reaching implications for the two countries that may eventually affect the progress of the East African Community. The crisis has generated so much distrust and demonstrated that parochial nationalism runs skin deep in the region, especially in Kenya.

But the biggest fallout will likely be in the fishing waters of Lake Victoria where Uganda is likely to tighten border control and fishing restrictions to non-nationals. According to MP Ochieng, Uganda has been requiring Kenyan fishermen to pay an annual fishing licence fee of UShs 1 million (Kshs 40,000) while Kenya extracts a fine (which makes up for a licence) of the equivalent of UShs 5 million (KShs 200,000) once Uganda fishermen are caught fishing there.

Uganda might therefore consider upping the figure to match Kenya’s or go the Tanzanian way. Tanzania does not allow any foreigners to fish in its water and there are severe fines and jail sentences to deter this. Whichever way, Kenya’s fishermen will be the biggest losers.

‘By focussing on the small Migingo island, Kenyans lost sight of the bigger picture. Kenya has only 6% of the lake which is too small to sustain its many fishermen and fish factories in Kisumu,’ said MP Ochieng, adding that they could inadvertently have woken up Uganda to strengthen its marine security and revenue policing.

There is also the issue of hundreds, if not thousands of Kenyan fishermen operating from inner Uganda islands like Sigulu, Wayasi, Hama, Lolwe, Bumba, etc. In fact Kenyans make up about 60% of the island population in Bugiri and Mayuge districts. This crisis has created insecurity among the Kenyans and if new national restrictions come into place, they may have to renounce their citizenship and become naturalised Ugandans or keep their citizenship and be subjected to a harsh fishing regime requiring work permits and annual fishing licence.

Big Kenya-owned businesses like Uganda Breweries Ltd (owned by East African Breweries in Nairobi), Kenya Commercial Bank (KCB), Bidco, Unilever, etc could also potentially suffer a backlash from the Ugandan public should Kenya escalate the crisis, as would Kenyan heavy haulage truckers that dominate regional transport, and Kenyan professionals who are beginning to dominate the business management and marketing positions in Uganda. Thousands of Kenyan students studying in Uganda could also be exposed to hostilities.

Naturally, regional trade would be disrupted with Uganda, Rwanda, Burundi, eastern DR Congo and South Sudan suffering disruption. Ironically, Kenya too would not be spared as Kenyan companies would not access their markets in Uganda, Rwanda and South Sudan.

It is therefore a symbiotic relationship and Kenyans need to understand that they are doing Uganda no favours to let its goods through her territory, and therefore high school arguments about blocking roads are in the end unsustainable, self-defeating and a little childish.

Lessons for Uganda

Be that as it may, Uganda needs to quickly and urgently develop alternative import and export routes to the sea. The Southern Corridor through Dar es Salaam and Tanga ports is the natural option, even though it means Ugandan imports would have to be ferried over a distance of 1,912km to Kampala through Mutukula as opposed to the shorter Mombasa-Kampala distance of 1,190km.

The political stability of Tanzania, secure transit routes, cheaper port charges, less corruption and bureaucracy and a peace of mind would be enough compensation for the additional cost of 700km or one extra transit day.

The Dar es Salaam-Dodoma-Isaka-Mutukula route to Uganda is now in a good condition, apart from a short stretch of 60km between Chikuyu and Manyoni that is still being worked on. Uganda should also join hands with Tanzania to improve the Central Railway to Dodoma and Mwanza, and get its wagon ferries (and buy more) back to work.Rwanda is already leading the way and is jointly working with Tanzania to extend the railway to Kigali.

And there are lessons to pick from history. When the Idi Amin regime in 1970s put Kenya at ransom over electricity exports, switching on and off whenever there was a disagreement, Kenya invested in small hydro and thermal power plants and in the end produced more power than Uganda and thus forever curing the power threat. The Mombasa route could therefore be downgraded in a few years.

If Uganda does not implement this, Kenyans will maintain a formidable threat on Uganda’s economic lifeline. War, however, would leave both countries mortally wounded as happened in the Iraq-Iran war of the 1980s.