By Peter Reat Gatkuoth
April 25, 2021 (SSNA) — The effective and efficient management of water is one of the major problems in Nile Basin territories, not just for economic growth and development in the Nile River basin, but also for the peaceful coexistence of the millions of people who live in the region. One of critical importance to the people of this part of Africa is the reasonable, equitable, and sustainable management of the water of the Nile River and its tributaries. The Nile River basin’s existing legal frameworks and arrangements do not provide the wherewithal for the effective management of the basin’s multifarious problems which include the allocation of water, climate change, ecosystem degradation, and resource sustainability. Perhaps it worth arguing that the Nile Basin beneficiary nations should provide guidelines for the construction of an effective and viable legal mechanism that is capable of achieving fairness and sustainability in the allocation and utilization of the water of the Nile River, as well as meeting the needs of the basin’s economies, which are searching for ways to improve the living standards of their citizens. Such an agreement, I believe, would be acceptable to all riparian states.
The Nile River is one of the longest rivers in the world and perhaps in the continent. It has many tributaries such as White Nile, Blue Nile, and Atbara or swamp channels that connect the main river body with its swamp’s areas. “The soil of the Nile River is considered one of the richest in terms of nutrients because it leaves large silt deposits when it flows into the Mediterranean Sea” (Klare, 2001). The struggle over the Nile River was their hundreds of years and years before the generations of today are born and perhaps longer before the partition of Africa. Nations are wrestling over the control of the water resources and perhaps it worth bringing to the attention of the readers that Nile River water is international water, governed by international laws. Hence, the beneficiaries of the Nile River have full rights to pursue projects that are deemed important for the development or perhaps encourage development that is harmless to the far end.
Almost all of Egypt’s freshwater has been supplied by the Nile River for irrigation, industry and human consumption had been progressing well since ancient times. This is the entire water source from ten upstream countries which include Congo, Rwanda, Burundi, Tanzania, Kenya, Uganda, Ethiopia, Eritrea, South Sudan, and Sudan. Nevertheless, Egypt’s immense economic and military capacities in contrast to the lack of capital in the upstream countries, the limited capacity to create dams and water facilities, and internal conflicts allow it to exercise huge control of how they use the Nile’s water resources (Klare, 2001). The combination of rising demographics and growing living standards, economic development, and climate change threatens to intensify water shortages across the Nile basin and potentially adjust the power dynamics. While the Nile River continues to be the main source of water for the ten nations that make up the Nile basin, it is scarcely enough to meet the region’s increasing water needs.
The Nile Waters are contested for production in those nations, primarily due to two agreements signed during the colonial era: the 1929 Nile Water Accord and the 1959 Full Nile Use Agreement that granted comprehensive rights to the use of the river to Egypt, South Sudan, and Sudan (Collins, 1996). The upstream riparian countries have renounced the 1929 agreement between Egypt and Britain concerning their sovereign territories. The 1959 bilateral agreement between Egypt and Sudan replacing the 1929 agreement is further complicated by the distribution of Nile Water solely for Egypt and Sudan (Klare, 2001). These agreements were concerned in the upstream countries, including Kenya, Uganda, and Tanzania, claiming that they were meant to grant Egypt’s undue influence over the use of river waters.
The Greek historian Herodotus identified Egypt as a gift from the Nile in the 4th century and this observation is valid today from the prosperity and life of Egypt which is based on the flow of the Nile (Kendle, 199). Due to this dependency, Egypt embarked on a plan to establish hegemony over the Nile, thousands of years ago (Andrew, 2013). The Emperor of Ethiopia, as ancient Egyptians knew, could shut down the water of life. The policy of Egypt, therefore, included attempts to avoid upstream economic growth along the riverbanks of the Nile which could either divert or decrease the flow of water. Egypt then attempted to extend its control over the Nile sources.
During the period 1314–1344, Egyptians persecuted the Copts of Egypt and destroyed churches, a response from the Ethiopian king who threatened to repress Muslims on Egypt’s property and to starve Egyptians by diverting Nile waters. Egypt invaded Sudan between 1769 and 1849 to occupy the whole of the Nile (Henshaw et al, 2013). This invasion was a step forward to occupy the western borders of Ethiopia from 1834 to 1875 and to later conquer Ethiopia.
Egypt’s motive was to “make the Nile, an Egyptian river by annexing to Egypt all the geographical areas of the basin,” based on the analysis that Ethiopia’s disciplined administration, army, and its friendship with European powers, could be a danger for Egypt (Henshaw et al, 2013). It became imperative for Egypt “either to take over Ethiopia and Islamize it or retain it in anarchy and misery;” a paranoia that was to come into conflict with the nationalism of the upstream or riparian states.
From 1875 onward, Egypt conducted further military assaults in Ethiopia and, although unsuccessful, maintained them until Egypt was conquered by the British and taken over by Egypt until 1882. The agreement between Egypt and Britain in 1929 (as the colonial force in the region) served only Egypt’s benefit, interests and Sudan’s water allocation for the Gezira irrigation scheme was only 4 billion cubic meters a year. The treaty stipulated that, without the approval of Egypt, no work has to be carried out to modify the Nile flow or build on the Nile, its tributaries, or the equatorial lakes (Henshaw et al, 2013).
Essentially, the Treaty guaranteed Egypt’s political stability, water protection, and the ability to supply cotton to the global market by supplying Egypt with the entire Nile basin. The Treaty also alleviated British worries regarding water for the Gezira irrigation scheme in Sudan and granted Egypt veto power over any water project relating to the Nile in upstream countries. The 1929 Treaty granted Egypt an acquired right which was later enshrined in the Egypt-Sudan bilateral agreement of 1959.
The present systemic shortage of water levied on the upper riparian States by Egypt is evident in the 1959 Full Use of the Egyptian-Sudan Nile Waters Agreement, according to which Sudan and Egypt have reserved 18 billion and 55.5 billion of the average annual Nile water productions of 84 billion, respectively (Collins, 1996). Egypt and Sudan formed a technical Commission, without regard to the upper riparian states in this water allocation. They conducted Nile water negotiations alone without any riparian nations beyond the borders of the two republics. Although this Agreement brought Egypt and Sudan together in the Nile Water Control Agreement against other riparian States, it worth mentioning that it exposed Egypt’s reliance on the Nile, and in particular after a special arrangement had been made for a Sudanese water lease for Egypt to continue agrarian expansion (Abtew et al, 2011).
The Nile Water Agreement of 1959 between Sudan and Egypt did not end the Nile Waters Dispute, and tension remains very high between the beneficiaries of the Nile. The shortcomings of the Nile Water Treaty of 1929 and 1959 continue to adversely impact the intergovernmental relations between the countries in the Nile Basin. On the one hand, Egypt retains its 1973 geopolitical conception of water supplies and the ability to use military forces to protect its water protection and puts forward legal arguments, defending the status quo by claiming that the treaties in the colonial period are sacrosanct (Hamdy A et al, 2007).
Besides, Egypt uses economic and political pressure to deprive upstream countries of access to global financial and technological services and is engaged in destabilization campaigns by supporting insurgencies in upstream states. In comparison, they expressed doubt about the validity of the Colonial Age agreements and claimed that, by using Nile water to produce electricity and irrigation, Egypt was able to industrialize while avoiding similar use by the upstream/riparian countries through military threats and intimidation (Hamdy A et al, 2007). However, it should be remembered that Egypt and Sudan have never really achieved political and economic unity in the Nile’s exploitation. Egypt was placed on earlier agreements, as did the 1959 bilateral Treaty, whose justification for Sudan’s low water allocation was that it had an alternative rainfall water resource which allowed rainfed agriculture to meet Egypt’s full dependency on the Nile for its water needs.
Officially launched by the Nile Basin States Water Affairs Council (Nile-COM) in Dar Es Salaam, Tanzania in February 1999 as an ‘inclusive transitional cooperation facility until a permanent cooperation mechanism has been established’ (Tafesse, 2001). The NBI is part of ‘a shared Vision for sustainable socio-economic growth through fair use and benefit of the common water resources in the Nile Basin.’ Based on Article 5 of the UN Convention on the Non-Navigational Use of International Watercourses, the NBI tried to use Nile waters equally for equal considerations for the Nile Basins. Attending countries were involved in the NBI negotiations to accept the principle of restricted sovereignty by each state in acceptance of the rights of other co-riparian states and to follow shared basin management. Egypt, Sudan, Ethiopia, Uganda, Kenya, Tanzania, Rwanda, Burundi, and the Democratic Republic of Congo, Eritrea as observers were the Member States (Ashok, 2002). “The Nile Basin Initiative has thus developed itself as the meeting point between regionalism and internationalism (SHok, 2002).” The main funder of this NBI was the World Bank, UNDP, and the Canadian International Development Agency (CIDA) is NBI development partner and this initiative was acknowledged by the international community and it paves the way for the Nile basin as a future center (Ashok, 2002).
The commitment of global development organizations at the time aims at promoting the NBI goals of economic cooperation between riparian states, suggesting that the NBI will contribute to stability and conflict prevention in the area (Ashok, 2002). The support of the international community could help to prevent the possible refugee problems resulting from drought, poverty, or conflict over the common resource as well as save on peacekeeping costs if the water dispute leads to wars between riparian countries.
Due to the long-established trend of bilateralism cooperation, the exclusive emphasis on technical issues, and riparian participation not expanding at its best beyond the sub-basin stage, the NBI could appropriately be regarded as a breakthrough from competition to cooperation’ (Brunnee et al, 2002). Contrary to the trend formed nearly half a hundred years ago, the NBI promised to be a prelude to a new age that manifests ‘a notable change in the tone and substance of state-to-state ties across the Nile’ (Brunnee et al, 2002).
But all credit for NBI would be inappropriate because the shifting of the pattern of riparian cooperation began to take shape earlier in the 1980s, employing ‘a non-official African regional grouping intended to serve as a forum for informal discussions on the overall economic growth of the Nile Basin Region’(Axel et al, 2006). Two cooperative initiatives, Undugu and TECCONILE that emerged from this informal forum, are notable preceding efforts that paved the way for the NBI and shared credit as its progenitors while simultaneously recalling the past difficulties and dormant in it.
Conceived under the TECCONILE and predating the NBI itself; NBCFA is the essence of the Nile Riparian Co-operation Transformation since for the first time it raised the main issue of fair (re)allocation of Nile Waters on a cooperative agenda, an issue that had been fully overshadowed by previous cooperative schemes (Mason, 2004). It was normal for 10 months for negotiations which began in 1997.
This negotiation produced a draft Cooperative Framework Agreement with some remaining issues. This was a bold step to turn a basin known for unilateralism and competitiveness into one, controlled by a permanent legal and institutional framework and accepted by all Riparian nations. Although in 2006 it was pointed out that two unresolved problems were the status of current legal framework arrangements and procedures for planned action. Indeed, the status quo as interpreted and strengthened by the current, mostly colonial-era treaty regime, poses a major challenge for any breakthrough in Nile riparian cooperation.
The application for a CFA was sent in June 2007 to the Nile-COM in Entebbe, Uganda. However, there was no proper agreement reached despite extensive negotiations concerning the issue of ‘water protection’ as defined by Article 14 of the draft on which Egypt and Sudan entered reserves demanding that sub-Article (b) be substituted with a new sub-Article (b) on which the other riparian States did not consent.
The Nile-COM talks did not advance as the other riparian states opposed the Egyptian-Sudanese amendment to Article 14 (b) which would instead compel them “to not impede water safety and the existing uses and rights of any other State in the Nile Basin” (Mohammed, 2009). When they were unable to overcome this impasse, the Nile-COM adopted the text of Article 14, agreed on along with the proposed amendment by all the other riparians. It also agreed to refer the outstanding question of “water protection” to the resolution of the riparian heads of state and governments (Mohammed, 2009).
The draft was again addressed at the sixteenth Nile-COM meeting in Kinshasa, DRC in July 2008. The meeting was a call “to find a way to finalize the unresolved water protection question of the draft Cooperative Framework Agreement. However, what happened at the meeting and what was said to be the result was far too limited to accomplish the defined intent of the meeting. The Nile-COM agreed to follow the parts of the CFA, excluding the controversial Article 14 (b) of the Nile River Basin Committee (Mohammed, 2009).
Agriculture in developing countries absorbs about 80 percent of the water, much of it by irrigation. Egypt currently has 4.5 million hectares of agricultural land and they intend to extend this to 6.6 million by end of 2021, with the completion of two Southern Valley and North Sinai Construction Projects for irrigation (Yohannes, 2008). The Nile River helps Egypt to irrigate 99.8% of the land, ensuring autonomy in agricultural commodities with lower levels of cereals, oil, and sugar.
Besides agricultural production, Egypt’s transport, industry, energy production, and jobs are funded by the Nile with more than 40% of its workforce involved in agriculture (BBC, 2005). The total reliance of Egypt on the Nile is evident from the community of its entire population in the Nile Valley and the region of the Delta, which only accounts for four percent of the area of the country.
The Sudanese Gezira irrigation scheme is based on a water source from the Nile, accounting for 60% of the country’s foreign revenue. The launching of the scheme was motivated by the desire to ensure that Sudan retained its colonial administration by producing an exportable product such as cotton, which supplied British textile mills and produced revenue for Sudan. The arable capacity of Sudan is estimated at 84 million hectares; and 60.5 million of which are in the Nile basin.
Sudan’s hydroelectric power is drawn from the Roseires Dam Nile. Sudan collects Blue and White Nile water and the Atbara River, and it is a transitional storage facility for Egypt. But in the South, the Sudd swamp retains approximately 14 billion cubic meters of the White Nile flow that disappears by evaporation and filtration. Sudan’s use of the Nile River is second strong after Egypt, representing 16.12 billion cubic meters of Nile water irrigating, which covers 2.95 million acres of cropland annually (Tadesse, 2008). Holding on to its prior rights of appropriation and water allocation as provided for in the Egyptian 1959 bilateral Treaty, Sudan may intend to extend its irrigation projects in opposition to any demands of the upstream countries for water allocation.
Because of their proximity to the equator, the British considered Kenya, Uganda, and Tanzania to be the ‘century water storage’ of Egypt and Sudan that guaranteed both stable annual rainfall and lower evaporation. The region’s enhanced agriculture and pastoralism shielded the Rift Valley Lakes from human irrigation, while local indigenous people had access to fishing and transport rivers and lakes, and these activities do not endanger the natural flow of the Nile.
Uganda uses the 1953 colonial-era agreement on the Nile water for hydroelectric power in Owen Falls, under which Egyptian technicians continue to monitor the flow of the White Nile at the dam. All three Eastern African countries are also involved in Lake Victoria, lakeside agriculture. Fisheries are also an important economic activity in Lake Victoria with Nile Perch alone receiving over $250 million in foreign exchanges per year for three East African countries. Ugandan fishers generate 350,000 tons and 1.2 million indirectly employed, produce an average of 220,000 tonnes. Similarly, fishers from Kenya and Tanzania generate approximately 350,000 tons per year (Yohannes, 2008).
Since all three countries in East Africa depend on foreign-export agricultural commodities, they are likely to look at Lake Victoria to supply irrigation water and to generate hydroelectric power as their populations grow and ecological degradation decline. This rising requirement for irrigation and power occurs with Uganda contributing over 50% of Lake Victoria’s water. In the same token, 30% and 18% of Lake Water are contributed by Kenya and Tanzania to downstream countries (Yohannes, 2008).
Ethiopia is the richest hydrologically in the Nile basin, making up 85 percent of the waters in the Nile, and only one percent of its water supplies are used for irrigation and hydropower production. Ethiopia’s goal is to use Nile waters in domestic food production and make the country a major hydroelectric producer and exporter. It has 5.7 million hectares of potentially irrigated land and 60 billion kWh of untapped electricity production capacity per year. The increasing food deficit and population, and the worsening drought conditions, necessitate the production of Ethiopia’s irrigated land of approximately 2.4 million hectares and hydropower capacity of 103,680 GWh per year in the Nile basin (Tadese, 2008).
Eritrea has a cultivable area of approximately 1.6 million hectares, 187,000 of which can be irrigated, and its rivers have an overall hydroelectricity generation capacity of approximately 16,890 GWh. If Eritrea chooses to use its hydroelectric capacity in Gash; this might lead to tensions with Sudan, which relies on the irrigation of Gash in its eastern region/frontier. Simultaneously, Eritrea’s move breached an existing Treaty between Italy (on Eritrea’s behalf) and Britain (on Sudan’s behalf) in 1925, where Eritrea stipulated that no construction on the Gash River would interfere with its flow. The deteriorating of food conditions in Eritrea resulting from the water situation, restrict Eritrea’s food productivity in years of a good harvest. The food deficit situation led the Eritrean government in the Setit-Gash-Barka Triangle to create micro dams and divert canals, which could have affected Sudanese-Eritrean relations in the near end (Tadesse, 2008).
The Democratic Republic of Congo (DRC) is of importance to the Nile Basin because of its rainforest precipitation and through the Semleki River, which flows to the Albert Lake, shared with Uganda and it provides up to 5 bcm of water annually into the Nile. Lake Albert fishing is an economic activity that provides food and revenue for education, consumer products, public health, and taxes for the local community.
Rwanda and Burundi on the other hand contribute approximately 8 BCM annual water flow through the Kagera River into Lake Victoria. The Kagera supports both Rwanda and Burundi for cultivation. The tropical rainforests in the Congo River Basin are important to help the regeneration of the Nile and the pollution and contamination in these highest Nile countries might lead to water quality downstream degradation (Tadesse, 2008).
The Nile Basin and its water supplies are vital to the survival of riparian states because they defend themselves against wildlife, boost food security, grow cash crops and generate energy for economic growth. As the upper riparian states continue to use the Nile against the “acceptable rights” gained by the downstream States, the probable outcome of this is overexploitation of land, water pollution, and conflict following the loss of natural resources. While not specifically involved in the Nile, the uppermost riparian states of DRC, Rwanda, and Burundi could be dangerous to preserve and protect the sources of the Nile unless they are included in the Nile water resource sharing regimes.
The potential for conflict or collaboration in the Nile basin revolves around first and foremost the differences between water supply and demand for development projects by individual countries. Egypt is increasingly in need of water to increase its irrigation projects, Sudan plans to lift its investment in irrigation and hydropower with an annual water demand above its 1959 treaty allocation, and the upstream states are projected to have water irrigation need that would possibly surpass 50 billion cubic meters, the annual water deficit in the Nile basin (Whittington et al, 2002).
Secondly, the downstream countries rely heavily on Nile water, but their flow contribution is
limited. This illustrates the difference between the contribution and use of water in the riparian states. Egypt, for example, makes a little contribution, but relies on the Nile for 97% of water sources and absorbs more than 80% of the water in the Nile. In comparison, Ethiopia accounts for 85% of the Nile flow and does not use any of it for irrigation nor do other upstream countries (Whittington et al, 2002). This problem brings national sovereignty against international water rules because countries in a common water basin can not remove water, dam a river, or produce waste without harming other riparian countries. Similarly, water production can only be effectively carried out in a common basin by concerted action.
River basin management systems take time to be developed and functioned, not least because of the difficulty of recognizing construction complexities. Cooperation mechanisms are only as successful as organizations operated by them, which in turn are only as successful as the data they have at their disposal and their expertise, abilities and other human capacities to use that information. These are all vital second-order commodities that are short of supply in the entire basin (Chisson et al, 1999).
A process-oriented view is required to achieve a meaningful production of shared water. It is increasingly recognized that governments cannot “do it by themselves” through this process, both in terms of understanding the complexities of basin growth and in terms of understanding the effects on human and natural ecosystems. This acknowledges the inclusion of civil society in processes such as the Nile Basin Initiative and the importance of society’s involvement in decision-making processes.
The local influence, mediated by national processes, must be a major factor for decision-making on profit sharing and cooperation. The challenge is no longer to collect capital, water shares, production and distribution of supplies, surveillance, early warning, and other factors; it’s something deep down to the management and governance of it. In the case of Okavango policy responses must be shifted from a supply management era to address future demand scenarios. Not only will the resource demand and the impact on the resource base now be much larger, but the global institutional development context has also shifted with the need to position basin management on a broader scale for the reduction of poverty.
Therefore, there is a great need for facilitated shared water production and a globally organized strategy needs to be exchanged; best practices displayed, and technological and financial growth supported and (important) to accomplish what is politically feasible. A recent study carried out on behalf of the Swedish Foreign Ministry by the Overseas Development Institute (ODI) recommended the creation of a “partnership model” International Shared Waters Facility. The Commission should build on the existing position of actors like the World Bank, UNDP and GEF while maintaining close relations with relevant international initiatives like the Global Water Partnership.
The international community has the potential to help settle the Nile Water conflict. Intervention by the international community is required to avoid conflicts that would destabilize the region. It is very important to increase the demand for the regulations of the stability and peacekeeping of the continent and to aggravate refugee issues. The fair use of Nile water will also minimize the reliance of some upstream states on the international community for food aid. With some countries of the Nile basin highly indebted, a “debt for cooperation” exchange might help unblock the current stalemate on the renegotiation of the Nile Treaty.
To date, international organizations such as the UNDP, UNEP, and the World Bank, and regional bodies such as the AU and the EAC, have helped to ease the Nile basin countries and inter-governmental tensions through emergency food assistance, engineering support, and conference facilitation. After all, the existing Nile controversy is sustained by contradictory concepts of international water law.
Egypt is determined to maintain its status quo by maintaining the concept of total territorial sovereignty (the assertion that the lower riparian state has the right to natural flows from a river). This meant Egypt is supporting the concept of pre-appropriation (whoever first uses the water has the right and right to it) and the principle that no substantial harm should be caused to the far end residence of the Nile basin users. Egypt’s veto power over the Nile and its statement of complete reliance on the Nile help the confluence of these concepts.
On the other hand, the case in the upstream States is based on the absolute sovereignty principle (absolute river rights passing through the territory of the country) and the limited territorial sovereignty principle (reflecting riparian co-dependence), and the equal allocating principle. In the past, water disputes have been mediated by mediation or the International Court of Justice. A presidential envoy from the United States mediated the 1953 standoff between Israel, Jordan, Lebanon, and Syria over Jordan River water rights. In 1975, Saudi Arabia mediated the conflict between Syria and Iraq on the Euphrates. In 1997 the International Court of Justice arbitrated the conflict between Slovakia and Hungary over the Danube River. The same approach can be used to frame a new and lasting legal framework over the use of the Nile river in this contemporary society.
All the countries of the basin of the Nile must work for a basin-wide cooperative structure, with regional factor endowment-based sub-basin projects that establish interdependence. Hydropower production and food production according to which the competitive advantage is achieved would contribute to the realization of the concept of virtual water through trade. Therefore, it is important to incorporate versatile and resilient legal and institutional structures into the new Treaty (Mbaku et al, 2015). The countries should include the drought provisions plans, flexible allocation plans, adjustment and inspection procedures, termination clauses and well-known river basin organizations.
The upstream states in the Nile basin did not succeed in establishing robust organizations despite many attempts in renegotiating the Nile water agreements to properly access and use the Nile water. The lack of a strong resolution and legal mechanism has made Egypt and Sudan monopolize the Nile further. However, deteriorating climatic conditions will continue to contribute significantly to the decline in water supply across the Nile basin, which has prompted some upstream countries to participate in unilateral water projects in the Nile. The vulnerability of the upstream countries to water shortages is rising because they lack fresh water collection and storage projects. The power asymmetry between upstream and downstream countries combines with the fact that actions of upstream countries can have a detrimental impact on the strong downstream states and can thus contribute to armed conflict.
The question of the Nile Treaty is far from over and the water rights dispute in the Nile River Basin may, unchecked, escalate into possible regional conflicts. Egypt’s inability to negotiate has galvanized upstream states to take concrete steps to resolve its water rights issues. While it is commendable that Egypt has offered to support the financing of alternative technologies and conservation in those countries, this solution is not real and the upstream states have been cautious as expected. It could be worthwhile for the NBI to consider inviting the AU to draw up a transboundary water international African Charter to circumvent colonial laws. The best choice in the Nile River Basin is for countries in the region to participate in cooperative diplomacy to establish a robust legal mechanism and system for water use. In particular, stability in the New Millennium area needs a permanent legal regime on the Nile River basin appropriate to all riparian states.
The writer is the co-author of the book entitled “Energy Transitions and the future of the African Energy Sector: Law, Policy and Governance.” Gatkuoth has engaged in writing constructively on academic journals and other issues of any concern in various fields of studies. He is currently working on the Book’s Chapter entitled “The Legislation and Governance of critical Minerals: A review of Legislative systems of Mineral in Africa,” and he is also working on Book entitled “The Nuer traditions, Social Life and Culture: A Review of South Sudanese culture of inclusivity, practices, and norms.” He is reachable at [email protected].
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