Last week, Kenyan Members of Parliament reignited the controversial debate on the disputed rocky Migingo Island. Some legislators even called for extreme action including invading Uganda if diplomatic channels failed to solve the ownership wrangle.
The resumption of the contentious issue came days after Uganda police, which mans the security at the island, arrested two clerks of the Kenyan electoral commission that were registering Kenyans living on the island for the forthcoming election.
So far, two joint technical survey teams have been set up since 2009 under the aegis of the March 2009 and May 2009 Kampala and Nairobi joint communiqués of presidents Yoweri Museveni (Uganda) and Mwai Kibaki (Kenya), and a third one set up in March last year, but none has been able to resolve the dispute, perhaps confirming suspicion that the dispute is really not geographical but political and economic.
What do the documents say?
It is important to note that three documents are critical to resolving this matter, first and foremost being 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, then the Schedule 2 of the Uganda Constitution (1995) which was simply transplanted from Schedule 1 of the 1967 Uganda Constitution, and then 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.
The writer 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 (1 degree south latitude) and approximately 33 degrees and 56 minutes 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 (933km), and the Lake Victoria segment is approximately 86 miles (138km).
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.
‘Say the same thing’
From both the Constitution of Uganda, 1995, and Kenya Colony and Protectorate (Boundaries) Order in Council, 1926, it is clear that the two documents say the same thing with one starting from the north and the other from the south.
The key to ending the dispute therefore lies in identifying Pyramid Island and defining where approximately 33 degrees 56 minutes east lies on the first parallel latitude.
According to International Boundary Study No. 71 - 27 May 1966, Kenya– Tanzania, the “Tanzania boundary extends for approximately 478 miles between Lake Victoria and the Indian Ocean. The Uganda tripoint is located on the 1st parallel South and about 33° 56’ E longitude.” This is the same point as defined in Uganda and Kenya constitutions.
So what is the basis of the dispute and why have the technical survey teams failed to agree?
According to a member of the joint Uganda-Kenya survey team this writer spoke to on condition of anonymity, the last attempt by the surveyors to delineate the boundary broke down for basically two reasons: One, that Ugandans wanted permanent marking to be placed in the lake by way of buoys to mark the areas already agreed which Kenyans did not want, and two which of the three Migingo Islands is the Pyramid Island described in the colonial boundary documents.
The Ugandan team insists the island shaped like a pyramid is the Pyramid Island referred to while the Kenyan team insists that the bigger Island south of the two is the Pyramid Island in question. Kenyan’s instead referred to what Ugandans call Pyramid Island variously as Elephant Island (this name is not documented anywhere) and Ugingo Island (likely a miss-spelling in one of the colonial maps published in The Standard).
The fact is the disputed island lies west of Pyramid or Elephant or Ugingo which would put it in Uganda.