cc Reflecting on the standoff between Uganda and Kenya in the Migingo Island dispute, Korir Sing’Oei considers the nature of each state's claim on the island. With both Uganda and Kenya claiming their right to the island on the strength of colonial-era maps, Sing’Oei states that a resolution on the matter will identify the losing state as having transgressed international law. Pointing out that the Migingo case raises interesting questions around citizenship and Africa's incomplete decolonisation, Sing’Oei argues that greater involvement for the East African Community at large would facilitate dialogue between the two disputing states.
Kenya and Uganda have recently laid claim on Migingo, a tiny islet of Lake Victoria, which has been described variously as ' a rock', 'one hectare of land floating on Lake Victoria' and a 'hostile rock without vegetation'. Both countries claim that Migingo is part of their territory, Uganda based on colonial maps and Kenya on the basis of the same colonial maps and the further claim that the island is inhabited by members of a Kenyan community, the Luo. One hundred and forty million Kenyan shillings (US$2 million) have been allocated for the process of ‘surveying’ to determine the actual ownership of the island. Without going into the merits of expending this colossal amount of funds – which arguably could have found a better use in meeting the dire needs the post-electoral displacements in Kenya – I will attempt to shed light on the international law issues that this dispute raises.
Whose territory Migingo is will soon be determined. Either way, one of the two East African states will be found to have transgressed some aspect of international law. If Migingo is Kenyan territory, Uganda will have violated the principle of respect for territorial integrity provided for in Article 2(4) of the Charter of the United Nations. This provision was reiterated in article III paragraph 3 of the Charter of the Organization of African Unity (OAU). Uganda’s action – to wit, hoisting a flag, collecting rent, deploying military police and taxing the inhabitants – may also be interpreted as amounting to acts of aggression, acts which in international law may be legitimately repulsed by Kenya through the use of force based on the doctrine of self-defence in article 51 of the UN Charter. Aggression has been defined as 'The sending by or on behalf of a State of armed bands … against another State.' The same indictment will apply to Kenya if Migingo is found to be Ugandan territory.
The basis of each state’s claim is of greater interest. Both states claim that the colonial maps answer the question definitively. Neither seeks to challenge the efficacy of the colonial borders per se because to do so would mean that they quibble with an important principle accepted by all African states, respect for colonial borders or uti possidetis, which the OAU had embedded in its charter and AU has provided for in article 4 (b) of its Constitutive Act. In Libya versus Chad, a dispute over the Aouzou Strip, the International Court of Justice relied on colonial treaties between Italy, France and Britain to reach the conclusion that the strip was Chadian territory. The International Court of Justice similarly resolved a dispute between Libya and Burkina Faso on the basis of the uti possdetis principle. Happily, neither Kenya not Uganda are contesting this principle, which appears to have acquired customary status, particularly in the practice of African states.
In addition to colonial maps, Kenya’s claim is supported on the grounds that the inhabitants of the island are members of the Luo community. This begs the question of whether the habitation of Migingo by the Luo suffices as proof that the island is Kenya’s merely because the Luo are a Kenyan community. Such a conclusion would invite a serious threat to the stability of African states, where contiguous communities exist in more than one state. To permit this state of affairs would, for instance, legitimise Somalia’s claim on northern Kenya merely on the basis that it is inhabited by members of the Somali community. The second question related to this is a determination of the steps taken by Kenya to establish as a matter of fact that the Luo of Migingo are Kenyan citizens under the Citizenship Act and Chapter 6 of the constitution. To the best of this author’s knowledge, no such inquiry has occurred. To conclude that the Luo in Migingo are Kenyans without due diligence would be problematic and may suggest that Kenyan citizenship is given to groups not individuals; or, alternatively, that all Luo are Kenyans, a serious misnomer, which has global implications.
Assuming that Migingo is Ugandan territory, the status of the Luo inhabitants, who avowedly owe allegiance to the Kenyan state, is an important question. They are not refugees since they are fleeing no persecution in Kenya. One sure fact is that they are exploiting the resources of the lake, which if found to be Uganda’s may make them economic saboteurs, culpable under the criminal laws of that country. In such a case, their call for Kenya to intervene on their behalf would be a call for diplomatic protection. International diplomatic protection is a right of the state, accorded to it by customary international law, to intervene on behalf of its nationals if their rights are violated by another state in order to obtain redress. Its exercise involves the resort to all forms of diplomatic intervention for the settlement of disputes, both amicable and non-amicable, from diplomatic negotiations and the use of good offices to the use of force. As a rule only amicable means will be resorted to. The right to diplomatic protection is a right of states not individuals, unless domestic law grants individuals such a right. The Kenyan constitution does not seem to do this. The state, on the authority of the Nottebohm (Liechtenstein versus Guatemala) case and the factory at Charzow case, has the discretion to determine – independent of the wishes of the injured national – whether diplomatic protection shall take place at all, how far it shall be pursued and what mechanisms will be used.
The dispute over Migingo Island – the one hectare of land floating in Lake Victoria – presents interesting questions of international law, citizenship, regional integration and the incomplete decolonisation project in Africa. Indeed, it is instructive that both countries are seeking answers to this problem from archives in London. Admittedly, the problem is more complex than it may appear on the face of it and must be addressed conclusively and with caution. The cost of resolving this dispute also needs to be seriously considered. The transgressing party must ultimately bear this cost. Involving the East African Community in the process may at least provide space for dialogue between the two countries before the rest of the community’s membership.
 General Assembly Resolution 3314 (XXIX).