Tanzania’s new political and electoral reforms : A step to the right, a high jump to go!

 

In early February 2024 the Tanzanian parliament made sweeping electoral reforms by passing three bills governing elections and political parties in Tanzania. If ascended and signed by the President into law, these reforms usher a new political era in Tanzania’s electoral history. However, one major leap to the front remains to cement Tanzania’s political landscape and electoral democracy for the better. Simply put the new reforms are a one step to the right or left but a higher jump is required.

The three bills passed are; The National Election Commission Act 2023, Presidential, Parliamentary and Local Government Elections Bill (2023), The Political Parties Affairs Laws (Amendment) Bill (Amending the Political Parties Act RE 2019 and the Elections Expenses Act, 2010). Among the reforms passed under these bills include;

# Introduces a new and separate law governing the National Electoral Commission. Previously this was covered under the National Elections Act, which seems to be overhauled by the new law.

#  Changing the name of the electoral body from the National Electoral Commission to the Independent National Electoral Commission (INEC).  The spirit of this is to rebrand the National Electoral Commission as a modern independent electoral management institution, capable of delivering on its mandate with minimal potential interference from the executive

# Changes to the selection process of the commissioners via a competitive hiring process presided over by a competent independent selection panel chaired by the Chief Justice of Tanzania Mainland and Chief Justice of Zanzibar as its Vice Chairperson. Previously these were solely appointed by the President.

# Introduces procedure for people to apply for positions at the electoral body.  Under the new proposed law, the position for Director of Elections will be open for all competent citizens to apply and subjected to an interview process whereafter three names will be proposed to the President for appointment. The purpose of this amendment is to detach the electoral commission from the direct ambits of the sitting President, who could also be a running candidate in an election process.

# Amendment of the law to remove a mandatory requirement for City Directors, Municipal Directors, Town Directors, District Executive Director (DED) to serve as returning officer at the district level. Under the new law, any competent officer or person can be appointed or assigned to preside over elections as a returning officer. The purpose was to address the long outcry over potential conflict of interest and lack of separation of the executive from the electoral processes. This matter had been a subject of litigation in courts but without success.

# The removal of automatic declaration of unopposed candidates as winners of an election. The new law requires that even unopposed candidates will still be subjected to a vote. If the number of opposed votes and more than in favour, the candidate cannot be declared the winner. The purpose of this was to avoid political favoritism, political intimidation or buying off of political opponents, and imposition of certain candidates on voters who may not be necessarily the best or favorite candidate for the voters.

By initiating and allowing this process to continue unhindered, President Samia Suluhu Hassan proved that she is a democrat par excellence.  President Samia demonstrated mastery of the political landscape and that she was committed to setting Tanzania on a trajectory of political and electoral reforms at a pace and standard unprecedent before by any of her predecessors.

Perhaps serving as a Vice Chairperson of the previous Constituent Assembly in 2014 and listening to the divergent views, she was exposed to the political pitfalls that dogged her country and always remained endeared to the ideas for urgent political reforms.

Key gaps remaining

Running on this inertia, President Samia can take a key leap to the front by reviving the defunct full constitutional review process towards a writing and adoption of a new Tanzania constitution.

The previous attempt at writing a new constitution suffered a still birth.  After months of collecting citizens opinions and debates by the Constituent Assembly costing billions of shillings, the political gulags killed the process before it could deliver a new constitution. Without major changes, the current new reforms will be curtailed by the Constitution limitations that exist.

A comparative study of Electoral Management Bodies (EMB) conducted by the Governance and Economic Policy Center (GEPC) in 2020 showed that despite some progress, Tanzania failed or fared poorly in many areas and required a major overhaul.  (Read more: https://gepc.or.tz/2020-general-elections-key-electoral-reforms-tanzania-must-take/

When ranked on the common standards and guidelines for electoral management and regulation of political parties developed by the European Commission for Democracy, Tanzania scored unfavorably compared to its neighbors South Africa, Kenya and Nigeria on a number of major electoral management and dispute resolution in the following aspects.

  • Direct appointment of the Chairperson and Vice Chairperson of the Electoral Management Body with out subject to an independent public vetting process
  • Tanzania’s electoral management body had curtailed or restricted powers to organize only Presidential and parliamentary elections. The Minister for local government was responsible for organizing and coordinating local government and municipal elections. The Minister appointed returning officers.
  • The prerogative of finality of decisions made by NEC and Zanzibar Electoral Commission (ZEC) was a major lacuna in Tanzania’s electoral law compared to its neighbors. NEC and ZEC have the exclusive powers to announce Presidential and parliamentary election results. Announced Presidential elections are not subject to challenge in any court of law. This is viewed as an infringement on common standards of democratic practice, rule of law, natural justice and democratic rights to a fair hearing. The exercise of finality of decisions can also be confusing, especially where it concerns matters that can be of concern to both institutions. A case to remember was the ZEC Chairperson’s decision to annual the 2015 Presidential election.
  • Limitations on Independent Presidential candidature. The current constitution and election laws restrict this candidature to members belonging to a political party
  • Lack of clarity and potential clash in the roles of the Electoral Management Body (EMB) and the Office of Registrar of Political Parties (ORPP) during election campaign period and civic education.

What it will take for reforms to succeed

For the new reforms to succeed, Tanzania needs to unpack the current constitution to ensure that its provisions are in synchrony with a new democratic dispensation.

The President will need to address the chronic single party mentality that exists amongst some political party cadres and state operatives.  Many of these are not tolerant to opposing political thought. They may not fully embrace the reforms let alone allow the INEC to function without impediments.  Guard rails must be set for what they can or cannot do  

Safe guarding of women in elections and political parties by ringfencing of women leadership positions in political parties. This must be followed by redesigning the concept of affirmative action by setting term limits for women serving in nominated positions in parliament and local governments as councilors for women and special seats.

Restriction on the use of national resources such as state media and the use national security forces and agencies to support a given political party or its candidates during elections.  This matter is considered sensitive but one that needs to be dealt with.

Moreover, our comparative analysis in 2020 showed that a mere change of name does not fully address electoral management, fairness, transparency, and dispute resolution.  Changes of the electoral body’s name from National Electoral Commission (NEC) to Independent National Electoral Commission (INEC) must be followed by the political will and support to enable its independent functioning.

Experiences from Kenya show that changes in the name did not succeed in fully addressing the underlying crevasses and politically charged currents that faced the electoral body. Kenya’s Electoral commission still faces accusations of political bias and state capture. All presidential elections since 2017 have been subjected to dispute and court adjudication.  Its commissioners and executives face electoral violence, persecution and accused of presiding over botched election results. Tragically, some have been killed while others live in exile because of election related persecution.

As Tanzanians and the political class celebrate these new reforms, we must always be reminded that this is temporary and more steps must be taken. Tanzania is yet to come a full circle as a democratic country. Tanzania has and can still set a new bar higher with a full constitutional review.

SADC in Economic Meltdown; Can Tanzania be German of the Region?

On Saturday 17th August, Tanzania assumed the chair of the South African Development Cooperation (SADC), amidst disturbing economic figures indicating that the region was facing a serious economic meltdown. Can Tanzania be the ‘German’ of the region, playing the economic big daddy role by calling the other states into political order and bailing out the struggling member states?

By Moses Kulaba, Governance and Economic Analysis Center, Dar es Salaam, Tanzania

The SADC is a 16-member state regional economic block established with among others promoting sustained economic growth and sustainable development amongst its objectives. However, the recent economic data indicates that region is witnessing an economic meltdown with most of its member states, except perhaps Tanzania, positing negative or stunted economic growth over the past years.

According to the economic and social indicators data compiled and released by its secretariat the the SADC region posted an estimated average growth rate of 1.4% in 2016 compared to 2.3% in 2015. At country level Tanzania registered the highest growth of 7% among the member states followed by Botswana with a far below rate of 4.3%[i].  

In 2017 Tanzania recorded an economic growth of 7.1% followed by Seychelles (6.3%) whilst Angola registered negative growth for the second consecutive year in order of 2.5%[ii] The region’s growth was increasing at a decreasing rate since the post global period in 2009.

The region’s economic giant South Africa has witnessed rapid economic slowdown, bring along its small neighbors and trading partners under its weight.  Countries such as Zimbabwe were collapsing under the weight of economic sanctions, Namibia and Angola recorded negative annual real GDP (at market price) of 10.8% and -2.5% respectively in 2017 due to the slump in commodity prices and other related risks. Botswana at 2.4% did not perform well either. The region posted an overall trade deficit with rest of the world of USD6.7bln. 

The AfDB report for 2018 warned that the economic outlook for Southern Africa region was cautious[iii]. Broad based economic activity was expected to recover at slow pace, but the outlook remained modest given the diverging growth patterns for the region’s economies. Upper middle income countries turned in low and declining rates of growth meanwhile lower income transitioning economies recorded moderate and improved growth, albeit at reduced rates.

Despite the improvement, economic performance remained subdued as the region’s economic outlook continued to face major headwinds. High unemployment, weak commodity prices, fiscal strain, increasing debt and high inflation.

Real GDP was estimated to have grown at an average of 1.6% in 2017 before increasing to a projected 2.0% in 2018 and 2.4% in 2019.

The future regional growth was expected to be bolstered with primary expectations of increased investment in non-oil sectors such as electricity, construction and technology in large infrastructure projects, mining as well as continued recovery in commodity prices.

However, the latest figures show that the region was not well on that front either.  The decline in commodity prices in recent years reaching the lowest point in 2015 translated into significant income loses for the economies, implying a negative impact on public and private sector spending and therefore growth in employment.

Before the 2008-2009 global recession, the region experienced moderate growth, though individual countries contributed differently. For example, Angola, Mozambique and Namibia exhibited robust growth that collectively outpaced the regional group.

Thereafter, Angola, the region’s foremost oil producer and former raising economic star received the worst bashing with its economy experiencing adverse economic growth effects due to weak oil prices.

Overall the region experienced negative GDP growth with Swaziland (-10.08%), Zimbabwe (-8.38%),  and Angola (-6.31%)  being among the worst hit[iv]  Other Countries such as Zambia, Namibia , Mozambique and Malawi were not performing better either. South Africa reported the highest public debt soaring in billions dollars followed by Angola.

South African Institute of International Affairs observed that intra-regional investment and trade levels had declined markedly since the commodity slump in 2013. Moreover, the trade and economic growth in the region remained imbalanced, exacerbating political strains among member states. Non-tariff barriers and other factors had adversely affected intra-regional trade and investment in recent years.

Assuming the mantle, at the end of its 39th Summit held in Dar es Salaam, Tanzania’ President John Pombe Magufuli was furious with against the Secretariat for having not provided adequate and alert to the political leadership that the region was experiencing an economic meltdown with reduced or stunted growth and an expanding trade deficit.

Speaking at the SADC People’s forum on the sidelines of the main summit in Dar es Salaam, the South African Professor, Patrick Bond, described the situation as alarming, catastrophic and turbulent and yet no one was bold enough to speak about it.

He was perhaps communist in view and radical in approach, blaming what he described as the capitalistic enterprise and its puppeteers for under mining economic justice, risking lives of by putting profit before the people and causing climate change whose effects were ravaging SADC but remained quite revolutionary in suggesting that the ordinary people perhaps needed to send a clear signal to its political leadership that all was not okay. The economic fundamentals were tattered and the regional leaders needed to wake, Prof. Bond lectured.

Can Tanzania emerge and become the ‘German’ of the region?

With this state of the Union, the question therefore arose can Tanzania emerge and become the ‘German’ of the region, playing the economic messiah role by providing both political leadership and economic bail out to its neighbors. 

In 2013 up to 2015 when the European Union experienced economic turbulence, Brussels turned to German to liberate it from the gigantic economic Dracula which was tearing down its economic block and leaving some of its small states indebted and facing bankruptcy. German wrote cheques in financial bailouts, provided guarantees and political prop up for economically struggling states such as Greece, Portugal and Italy.

German relied on its economic prowess and its political might as the industrial central pillar of the European Union. The charismatic leadership of its Chancellor, Ms Angela Merkel, was a distinct asset. Even at the risk of her own political career and constant onslaught from the German far right, Merkel could not tolerate any nonsense and was not ready to allow Europe to fall back.

In the face of the similar economic doldrums which seems now to face SADC, can Tanzania afford such muscle or a German equivalent?

Tanzania has done it before. In the 1960’s until 1990’s when the region was facing serious political, Tanzania pulled up its resources and committed it to the liberation struggle. It hosted training camps and provided pupilage to thousands of liberation fighters. Dar es Salaam became to the political headquarters of Frontline States where the idea of SADC in its current form was initiated and a spring for independence for many of the current South African states.  For some, therefore SADC at 39 years, just came back home.

In assuming the SADC Chairmanship, President Magufuli warned the Secretariat that it will not be business as usual as of now and for the next one year his interest would be to see that resources placed at the disposal of the Secretariat were not spent on conferences but on meaningful tangible projects which benefited the people. Could this be the kind of approach that region needs to take in order to deal with its increasing economic challenges.

An agile kind of leadership which places the people at the heart of politics and fights with cunning shrewdness against corruption, public waste, nepotism and personal drive to accumulate wealth by those in power.

Over the years these have been some of the vices which have dogged the region and bringing the much needed progress to stagnation and ultimate halt in some member states. Comparatively, perhaps the SADC is the largest economic group in Sub-Saharan Africa. With over an estimated population of 337.1 million people in 2017, is larger than its western equivalent, the Economic Community of West African States (ECOWAS) and obviously bigger than the European Union has a just a fraction of the SADC population yet somehow progress has been considerably steady in the other regions.

According to experts the region was faced by multiple non trade barriers and low intra region trade which still at around 20%.  Technically, speaking, the members are happy to do business with other countries outside the region rather than their economic neighbors partners in SADC. The member states are living alongside each other but not fully economically and trade integrated.

Political uncertainties which has dogged the former economic giants of the region such as South Africa, Zimbabwe, Mozambique and Angola created fertile conditions negative to investment and economic growth.  The governments lost grip on the economic mantle and directed attention towards managing internal politics and mechanics for political survival.  

Xenophobic attacks in South Africa could have also created a sense of fear and caused disarray in a fragile informal sector which was quietly the driving factor or fulcrum on which the South African economy relied. Crushing cost of electricity, turmoil in the extractive sector and stalemate in the platinum industry in 2016 perhaps were also a contributory factor to South Africa’s political woes. 

Overall, according, to Professor bond, the region was just poorly governed and a new leadership impetus led by the people was necessary to bring back the declining glories

For many years SADC was so much preoccupied on political stability. With good success, it has managed to tackle conflicts and bring peace amongst its member states. Overall, political conflict in the form of civil wars in the region has been declining with all except the DRC reporting any semblance of a conventional Civil war in recent years. 

Even, this has significantly been downgraded in recent years. Currently, there is no severe risk of any threat from any member state to destabilize any other through an arms insurrection. The ongoing conflict in the Eastern DRC is largely a war of survival for the remaining tribal and ethnic elements rather than a fully-fledged military configuration to overall and capture power in the DRC. If it can be dealt with, then perhaps the war in the DRC will be over or significantly reduced to minimal levels in many decades.

The future wars of the SADC will therefore be largely economic and perhaps resource based on key issues such as land, water and control of the real means of production and profit. Acute poverty could be the other driver of the masses towards insurrection. For Tanzania therefore, to take up the German challenge will be a touch endeavor.

Tanzania’s economic benefit or contribution to the region is too minimal. According to trade statistics, Tanzania is among the least exporters to SADC and its overall trade balance with its SADC neighbors was still low. It therefore lacks the economic might of German stature.

Over the past three years Tanzania’s political leadership has commitment itself to building its economy first before looking outside. Cutting back on public waste and flogging its population into line to start paying up taxes to finance its public service and infrastructure ambitions, Tanzania is building its economy from within.

Throughout the 1960s to the 1990s Tanzania sacrificed a lot in order to politically liberate virtually all the SADC member states and yet gained very minimal in return.  Political historians have even have even argued with some level of confidence that Tanzania under developed itself in sacrifice for others to develop. Tanzania would be therefore quite cautious in economic diplomatic terms and perhaps uncomfortable at this moment in giving out too much of what it has acquired over the years to salvage its economic neighbors.

The conditions in the region appear to have turned so bad in the past few years with persistent drought raving across the region only to be replaced by wrecking floods leaving behind famine and death in communities along its way.  Approximately over 1000 people dies in the last floods in Mozambique and Malawi caused by cyclone Idai and Keneth. Millions at a risk of starvation.  Essential infrastructure such as road and bridges connecting rural areas to urban centers and across countries such as the port of Beira are badly battered and incapable of supporting economic productivity.

The region has not been able to attract in Foreign Investment into its natural resource wealth and flagship infrastructure projects such as the Mighty Inga dam electro power project in the DRC which would have brought life into the SADC power master plan have remained incomplete for many years now. The region is badly in need of both reconstruction and reconfiguration to sustain itself and its ambitions.

At the end of the summit Tanzania’s former President Benjamin Mkapa advised that SADC member states should stop relying heavily on foreign donors for aid to support or finance their development agenda. Building internal capacity through a reliable market for products from the block, investment in education, technology, domestic revenue collection and unlocking the potential amongst its budging population to drive the economies forward would be a better option. Perhaps the SADC leadership should fine tune an ear to the wisdom of its elders.

The meeting concluded with signing off of three development cooperation programs worth 47 Million Euro deal with the European Union under its European Development Fund (EDF) 11 financing round. According to official statement, the funds will be used over the next five-year period to support improvement in the Investment and Business Environment (SIBE), Trade Facilitation Program (TFP) and Support to Industrial Productive Sectors (SIPS) three programs to be implemented by the SADC over the next five-year period

The SIBE program aims at achieving sustainable and inclusive growth and job creation by transforming the region into an investment zone, promoting intra-regional investments, foreign Direct Investment and a focus on Small and Medium Enterprises. The TFP will contribute to enhance inclusive economic development in the region through deepened economic integration while the SIPs aimed at contributing to the SADC industrialization agenda, improving performance and growth of selected value chains. How this EU injection translates into lifting the region from its economic downward spiral will yet to be found out at the next summit when SADC turns 40. What is clear is that something has to be done.

[i] SADC: Selected economic and social indicators, 2016

[ii] SADC: Selected economic and social indicators, 2017

[iii] AfDB: Southern Africa Economic Outlook, 2018

[iv] https://countryeconomy.com/countries/groups/southern-african-development-community

How to manage transboundary petroleum resources as Somalia and Kenya talk conflict off East African Coastline

 

The war of words and negative diplomacy between Kenya and Somalia over the disputed potentially oil and gas rich territory in the Indian Ocean has rekindled the importance of understanding how to manage transboundary petroleum resources. Petroleum does not know political borders. The vagaries of geology have dictated that sometime petroleum resources occur in trans boundary areas. How nation states collectively manage these resources can determine whether they effectively harness the benefits from these resources without going to conflict.

By Moses Kulaba, Governance and economic analysis centre

Management of petroleum resources or revenues from ‘trans boundary or ‘disputed’ areas has always been an issue of controversy in most petroleum resource rich countries.  It is a source of disputes and a challenge to investors, planners and policy makers when parties or Countries fail to agree amicably on the ownership of these resources and revenue sharing mechanisms for resources from these areas.  Trans-boundary resources are also called ‘common’ or shared resources.

In Tanzania and the wider East Africa region management of resources in ‘potentially contestable areas’ and ‘trans boundary’ areas are becoming a major challenge as some of the petroleum resources are found closer or along the boundary areas. It will be even more challenging in the nearby future as the gas and oil starts flowing.  If not addressed it will be a big hindrance to investment and development of the petroleum sector. In East Africa, currently there is no concrete and pragmatic approach to addressing this challenge.

The East African dimension

In a broader East African context, seismic studies have indicated that petroleum resources may be largely found along Trans international boundary areas. This has created disputes and raised challenges for proper resource management and revenue sharing arrangements. For example the discovery of petroleum deposits in the Albertine basin generated trans boundary tensions between Uganda and the DRC along the Lake Albert. There are disputes over petroleum in Unity state along the South Sudan and Sudan border. There are disputes between Kenya and South Sudan along the Nadapal area (Block 11 A & B) and Kenya and Somalia along the Wajir border area (block 1, 2 &3) and Indian Ocean Coastline continental shelf.

In 2014, Somalia filed a before the International Court of Justice, accusing Kenya of encroaching on its potentially rich petroleum rich maritime territory off its continental shelf. Both countries have claimed ownership of an approximately 100,000 square miles in the Indian ocean waters suspected of having vast oil and gas deposits.

The conflict largely arises from a dispute in regards to how the international border between Somalia and Kenya should drawn and internationally recognized. In the case before the ICJ, Somalia wants the maritime boundary to run diagonal, as an extension of the land boundary, while Kenya wants it to run parallel to the latitude, east wards, south of Kyunga. Both countries have relied on the straight-line principle in the International Law of the sea. Somalia wants the boundary to run south east wards and has vowed not surrender what it considers, its territorial integrity.

Figure 3: East African Exploration Map 2010-Source: Vanoil Ltd Energy-Kenya

In recent months there has been an escalation the war of words and negative diplomatic relations. Kenya in April barred Somali Officials from entering into Kenya and further banned unaccompanied luggage from Somalia and required that all aircrafts flying into Kenya from Somalia should temporary land in the Northern town of Wajir for a mandatory security check before flying into Nairobi.

The recent diplomatic row represents a significant development between the two neighbors which could escalate into a full-blown out conflict. It further reflects the common resource quagmire that neighboring petroleum rich nation states often find themselves and further shows that latent conflicts emanating from transboundary petroleum resources exist in East Africa.

It is therefore important that viable solutions are reached even without addressing the international law (Law of the sea) challenges facing Kenya and Somalia and the international political concerns or interests in East Africa yet significant challenges and ways of resolving this problem do exist.

Specific problem

  • There is lack of clarity for policy makers, planners and tax administrators on how to share the revenues from these areas
  • Uncertainty and wavering Investor confidence to fully commit their investment and as a consequence petroleum resources in potentially disputed or Trans boundary areas have remained unexplored. For example, licensed blocks operated by Shell in Tanzania’s waters closer to Zanzibar have remained   unexplored for a long time
  • On a wider East African level there are missed opportunities for joint investment promotion.
  • There is a ‘Race to the bottom’ as East African Countries under cut each other with lucrative fiscal terms in competition to attract petroleum investors into their own territories, without looking at East Africa as a whole
  • There are ongoing and underlying territorial disputes which could erupt into full blown out conflicts, risking the current and future investments into the petroleum sector

Currently, a lot has been written about these possible challenges but very limited pragmatic steps have been taken to address these challenges. There has been some significant discussion about the issue but there have been no pragmatic viable options provided which can be acceptable to the protagonists in the conflict.

If some pragmatic solutions are found for Kenya and Somalia, similar suggestions could also be used to inform approaches taken by other East African governments within the wider East African framework to address similar other potential disputes along their border frontiers.

Some international approach to similar challenges

The answer to nature’s conundrum where petroleum resources migrates within or across a country’s border has always been unitization.  Unitisation is one of the legal devices which seek to remove the destructive competitive elements stimulated by the rule of capture (as advanced in the United States legal tradition under which the title to petroleum belongs to the owner who physically extracts it from a well on his land, even if petroleum has migrated underground from neighboring lands). With unitisation petroleum deposits are exploited as a whole, expenditure is reduced and recovery is maximized.  Unitisation is accomplished through a unitization agreement. A unitization agreement is an amicable solution between parties as individuals, group of individuals or states holding exploitation rights in common petroleum reservoirs by which the reservoirs will be exploited in an integrated manner.  The reservoir is treated as one whole and the costs and revenues shared between the parties according to an agreed formula defined by parameters such as geological technical factors, investment or operational costs and volumes of the reservoir. An international unitization agreement (Unit operating Agreement) can be signed between relevant international companies from both states subject to the bilateral treaty outlining the rights and obligations of each company and issues like selection of operator or determination of tract of participants.

International law remedy and Joint Development Areas

The International law remedy to offshore ‘trans international boundary’ petroleum resources is provided within the ambits of the United Nations Law of the Sea Convention of 1982 (UNCLOS) which obliges states which have not been able to agree on boundaries of their continental shelves and exclusive zones to make efforts to enter into provisional arrangements  of a practical nature to develop the petroleum deposit  located in the overlapping geographical area under dispute whilst not foregoing their sovereignty rights to the deposits  in place  in its territory or continental shelf.

This international law remedy is the backbone on which the idea of Joint Development Areas or Zones is built. Joint development is an arrangement between two states to develop and share in agreed proportions the petroleum found within a geographical area whose proportions the petroleum found in a geographical area whose sovereignty is disputed; and the geographical area is an overlapping area under dispute with undefined boundaries to which the two states are entitled under International law. The JDA is established by a treaty, agreement or any recognisable legal document stating the rights and obligations of each party. The JDA’s can be divided into separate contract areas where deposits can cross the internal boundaries of those contracts and those that cross the JDA’s into third party states.  Both approaches are geared towards securing mutual cooperation and maximizing benefits from the petroleum resources. The treaties or agreements incorporate procedures to minimize disputes and resolve disputes. The following country experiences can be benchmarked:

Possible country experiences for benchmarking

Norway’s experience with United Kingdom

Norway is a good example of the significant economic benefits that can be achieved through strong cooperation and bilateral relationship. Norway has entered various treaties as examples of successful border unitization and management of resources straddling across a vast maritime area between Norway and United Kingdom. On March 10, 1965 Norway and the United Kingdom signed a bilateral delimitation treaty and this agreement constituted the first detailed provisions for action to be taken in the case of a petroleum deposit straddling cross border. This treaty was a voluntary agreement of a maritime border and acceptable cost and revenue sharing formula based on the volume of resources. This treaty provided a basis for three more cross border unitization agreements covering the Frigg, Stratfjord and Murchison Field signed in 1976, 1979 and 1979 respectively.

Norway is also a unique good example of managing Trans boundary petroleum resources by three neighboring states. This experience was demonstrated in the joint management of the Markham Field reserves. In 1965 the United Kingdom and the Netherlands signed a bilateral agreement to establish the boundaries of the Dutch continental shelf, when a petroleum reserve of approximately 700 cubic feet was discovered the licence was awarded to a Dutch company-Ultramar Exploration (Netherlands BV). The discovery was named Markham Field and jointly managed under the Markham agreement signed between the United Kingdom and Norway for unitization of petroleum resources straddling across the maritime borders. The United Kingdom’s health and safety authorities and their Dutch counterparts, the Straatstoezicht op de mijen, had unlimited access to all facilities and information related to the management of the resources. The UK and the Netherlands governments imposed taxes and shared profits as per their fiscal regimes and applicable double taxation conventions The Markham agreement provided a framework for successful development of the field and a possible template for any future unitization between three states

Norway has also taken a pragmatic framework agreement approach in resolving managing Trans boundary petroleum fields without involving distinct intergovernmental treaties. This approach was taken in 2005 by Norway and the United Kingdom in managing the Enoch & Balne Oil fields Norway’s focus has been on securing economic benefits for both states, with provisions made for possible development of resources with infrastructure located on the one side of the boundary. More examples of such approaches include the development of the Boa field which is mostly in Norway and the Playfair fields which are almost entirely in the United Kingdom. Since 2005 Norway has signed more treaties with Russia in the Barents Sea and thus excelled as a champion in managing off shore Trans boundary resources in contentious territories.

East Timor (Timor Leste) and Australia’s experience

In Asia-Timor Leste and Australia are good examples of joint management of Trans boundary petroleum resources. In 2002 East Timor and Australia signed the Timor Sea treaty between the two governments. This treaty enabled the joint development of petroleum resources in the maritime area located between East Timor and Australia. This area also known as the ‘Timor Gap’ had been controversially disputed and subjected to an earlier Timor Gap Treaty in 1989 between East Timor, Australia and Indonesia.

The Timor Sea treaty established a Joint Development Administration (JDA) and provides that Australia and East Timor shall jointly manage, facilitate, exploration, development and exploitation of the resources within the JDA for the benefit of the people of the two countries. The treaty has also provided an acceptable revenue formula whereby 90% of the revenues from the JDA would go to East Timor and 10% would belong to Australia.

The treaty resolved the long political impasse related to the management of the Sunrise and Troubadour petroleum reserves, also collectively referred to as the ‘Greater Sunrise’ which spanned across the Eastern boundaries of the new Joint Petroleum Development Authority (JPDA). The Sunrise and Troubadour deposits were unitized and an acceptable revenue sharing formula agreed. A joint management committee was established to oversee its implementation. To date the approach is a successful model of joint petroleum resource administration in Asia. Similar approaches have been taken by Qatar and United Arab Emirates, Saudi Arabi and Bahrain.

Nigeria and Sao Tome et Principe’s Experience

In cases where countries have longstanding territorial disputes, they can reach out for third parties or independent arbitration panels or international courts of justice to resolve or advice on the best alternative to manage the petroleum resources located in these areas. This approach is referred to as the third-party approach.

This was the approach taken by Nigeria and Sao Tome et Principe in Africa, to create a border upstream cooperation and Joint Development Zones (JDZ) through Unitisation of two major fields (Ikanga and Zafiro) between Nigeria and Equatoria Guinea. On this backdrop, the government of Sao Tome et Principe claimed an archipelago status under Article 46 of the United Nations Conventions of the Law of the Sea (UNCLOS) as based on the 200 miles Exclusive Economic Zone (EEZ) determined by a median line in the North East and the North West as the median line between Sao Tome and Nigeria. The Nigerian government based its claim on the Exclusive Economic Zones Act (CAP 116) and claimed an EZZ which overlapped with Sao Tome et Principe’s zone. The two countries agreed to resolve their differences by creating a Joint Development Zone in the area of overlap to enable exploitation and licensing to proceed. Both countries have since mutual benefited economically.

Relevancy of these Countries’ experience to Tanzania and East Africa’s trans boundary petroleum resources management

As a result of these experiences, unitisation is now a major compulsory feature in petroleum legislations of these countries. The United Kingdom Petroleum Act 1998 and the 1988 Petroleum (Production) (Seaward Areas) Regulations, the Nigerian Petroleum Act of 1969 and the 1969 Petroleum (Drilling and Production) laws impose a compulsory unitization. All licence holders or contractors have an obligatory requirement to agree on a unitization. They are obliged to cooperate if and when reservoirs straddling within or beyond national borders must be developed and it is within the national interests to secure efficient maximum recovery of petroleum. Resources and revenues are managed in agreed manner without losing national or international ownership and sovereignty.

Although the Nigeria and Sao Tome’s case was an arrangement between sovereign states, this approach is relevant to Tanzania, given the similarities of the issues involved. Zanzibar is an archipelago with a specific claim to territorial waters along its coastline. Mainland Tanzania’s 200 miles EEZ overlaps Zanzibar’s territory. Nigeria and Sao Tome’s approach could towards resolving Tanzania’s petroleum resources management challenge with Zanzibar.

These benchmarked examples indicate that geological constrains, territorial disputes, political and economic differences, constitutional limitations and international boundaries should never be a limiting factor to development of petroleum resources located or straddling from one territory to another. Tanzania and the wider East African region can draw alternative solutions to the current challenges facing management of trans boundary petroleum resources:

Possible alternative or supplementing solutions

  1. In Tanzania, within the current constitutional framework there could be a ‘Partial delegation’ of legal powers to Zanzibar to enter into agreements with oil companies (state and non-state actors) subject to the Union Constitution and the Union government’s Petroleum and fiscal management legislations
  2. Delimitation of temporary boundaries for oil and gas management purposes and earmarking specific petroleum blocks which could be legally assigned to Zanzibar’s control for revenue purposes
  1. Establish Joint Development Area (JDA) or Joint Development Zone (JDZ) arrangements modeled successful arrangements like Norway and United Kingdom, Timor Leste and Australia. Agree on unitization arrangements for licensed blocks straddling outside the JDA and develop a revenue sharing formula for managing resources from JDA and Trans boundary areas. Establish a joint petroleum revenue management committee for trans international boundary areas
  1. Develop East African guidelines for unitization and Joint Development Area Management and revenue sharing for Trans boundary petroleum resources.
  1. Either off the above approaches could be adapted in resolving the dispute between Kenya and Somalia

Benefits from these options

If resolved this could lead to peaceful co-existence and increased joint attraction of foreign investment into the areas

Increase investor confidence in East Africa and open up new avenues for investment and value creation in its Petroleum sector.

Unfreeze the current blocks which are closer to Zanzibar for licensing, exploration and development. These blocks have remained unlicensed for many years, despite expression of interests from petroleum companies to develop them

Provide avenues for possible cross border petroleum resources development and sharing of petroleum energy resources at low costs and thus reduce the acute shortages of electricity and over reliance on hydroelectricity for power generation in the region.

References

  • Beyene, Zewdineh and Wadley, Ian L.G. Common goods and the common good: Transboundary natural resources, principled cooperation, and the Nile Basin Initiative. Berkerley, UC Berkeley: Center for African studies 2004.(Breslauer Symposium on Natural Resources Issues in Africa😉 at pg4
  • Cameron P.D: Cross Border Unitisation in the North Sea (Vol. 5 OGEL 2007)
  • Denis V.Rodin: Offshore transboundary petroleum deposits: Cooperation as a customary obligation; Small Masters of Laws thesis in the Laws of the Sea; University of Tromso, Faculty of Law, Fall 2011
  • Perry A: Oil and Gas deposits at international boundaries-New ways for governments and oil and gas companies to handle an increasingly urgent problem (Vol. 5 OGEL 2007);  M.O Igiehon, Present International law on delimitation of the Continental shelf (Sweet & Maxwell 2006
  • Rod Chooramum; Notes to the Field: An English law perspective on the oil and Gas Market, August , 2014
  • Sustainable Development or Resource Cursed: Managing Timor Leste’s Petroleum Revenue, Chapter 4
  • URT: The National Natural Gas Policy, 2013
  • Zanzibar Oil, Gas win cools political heat; The East African Newspaper; http://www.lawteacher.net/free-law-essays/australian-law/joint-petroleum-developmet-area.php
  • http://www.theeastafrican.co.ke/news/Zanzibar-oil-gas-win-cools-political-heat/-/2558/2877248/-/view/printversion/-/1485oatz/-/index.html. Also read: Oil and gas: How EA Can become a key global player; http://www.theeastafrican.co.ke/oil-and-gas…
  • http://www.forbes.com/sites/christopherhelman/2014/01/08/the-10-biggest-oil-and-gas-discoveries-of-2013/ accessed on 19th May 2015 at 7:45 pm
New threats to peace and Security:  Extent to which new security threats of Piracy have affected economic and human security in East Africa

New threats to peace and Security:  Extent to which new security threats of Piracy have affected economic and human security in East Africa

By Moses Kulaba, Governance and economic analysis centre, Dar es Salaam-Tanzania

Security is taken to be about the pursuit of freedom from threat and the ability of states and societies to maintain their independent identity and their functional integrity against forces of change, which they see as hostile.

In recent years piracy and cyber security have emerged to represent new security threats to economic and human security like never before.

Security has been defined as protection from any kind of threat but in total departure from the orthodox view as perceived by the military and war professional. Experts such as Buzzan (1991) have defined security as freedom from fear or threat of social, economic, society, environmental and military concerns.  Buzzan therefore expands the definition of security to include human and economic security dimensions to the concept of security. 

Human security, as an approach gives understanding to national and international security by adding a dimension that gives primacy to the safety of human beings and their complex social and economic interactions.  In this approach to security, the subjects are individuals and the end goal is the protection of people from traditional threats such as military concerns to nontraditional threats such as poverty and disease.

The UN has advanced this concept further by declaring that “Human security is an approach to assist Member States in identifying and addressing widespread and cross-cutting challenges to the survival, livelihood and dignity of their people” (General Assembly resolution 66/290

Other organisations such as the International Committee of the Red Cross view security from an economic lens. The ICRC defines economic security as the ability of individuals, households or communities to cover their essential needs sustainably and with dignity. This can vary according to an individual’s physical needs, the environment and prevailing cultural standards. Food, basic shelter, clothing and hygiene qualify as essential needs, as does the related expenditure; the essential assets needed to earn a living, and the costs associated with health care and education also qualify.

By understanding peace and security from such a broad lense, it is therefore possible to understand the nexus and extent to which new threats such as piracy and cybercrime have on human security.

Piracy as a security threat

Piracy has been defined as an act of robbery or criminal violence at sea. It includes acts committed on land, in the air, or other major bodies of water or on shore. It generally involves unlawful, boarding, kidnap and commandeering of marine or land vessels or convoys to undesignated locations or destinations for looting, ransom or other purposes.

Although the term “piracy” may conjure up images of bearded men with eye patches, wooden legs and parrots who were convicted and buried centuries ago, pirate attacks are indeed posing a threat today’s shipping lines (and human wellbeing) all over the world.   According to reports, the number of Pirate Attacks globally between 2009 and 2017 was 2717 with 180 attacks registered in 2017 alone.

Causes of an upsurge in piracy

There are many reasons to explain the increasing rise in piracy but some of these have been constantly made;

  • The disappearance of US naval forces fleets from major international water bodies after the end of the cold war. This has allowed pirates and criminal gangs to operate freely on the open high seas with minimal interference
  • The improvement in maritime navigation and technology which has enabled launching and navigation of larger ships manned by smaller crew who are extremely vulnerable to pirate attacks
  • Expansion of jurisdictional waters beyond those which are directly in effective control and patrol of their claimant states.
  • Instability, state collapse and increasing harsh economic conditions in Countries such as Somalia and Yemen.
  • Falling states and absence of centralized governments in Countries such as Somalia
  • Lucrative ransoms paid which acted as incentives for more attacks
  • Long uncompleted trials and deterrent punitive measures to convicts which motivated others to conduct attacks
  • Radicalization and justification of piracy as tool in response to political interference, economic dominance and over exploitation of marine natural resources by global super powers such as America.

Today, pirates’ attacks pause a genuine threat to maritime transportation and security. Pirates are capable of cutting off important transit choke points such as the Strait of Bab al-Mandab between Arabia and Africa or the Strait of Malacca in South East Asian waters.  In 2017, the trade routes around the Indonesian coast as well as in Bangladeshi and Nigerian waters were counted among the most perilous at sea paths globally.

The Horn of Africa, along the Somalian coastline, has become one of the most dangerous waters prone to piracy attacks.  According to various reports maritime piracy off the Horn of Africa grew in frequency, range, aggression, and severity at an alarming rate covering more than 2.5 million square miles of ocean. Since 2007, Somali pirates attacked and harassed vessels transiting up to 450 miles offshore in the Indian Ocean and in the Gulf of Aden, a natural chokepoint providing access to the Red Sea and the Suez Canal.  The number of actual or attempted attacks in the Somalia’s territorial waters off the East African coastal shore line was 462 with 5 attacks reported in 2017 alone

For 2017, an International maritime organization, One Earth Future (OEF)’s Oceans Beyond Piracy (OBP)  recorded a total of 54 incidents in the Western Indian Ocean region, marking an increase of 100 percent from 2016. Accordingly, 2017 saw an increase in the number of seafarers affected by incidents of piracy and armed robbery at sea, from 545 in 2016 to 1,102 in 2017. For the first time in two years, OBP recorded incidents of hijacking and kidnapping at sea in the region. Suspicious activity continued to be the highest represented incident in the region in 2017 reporting a significant increase from 13 recorded incidents in 2016 to 32 in 2017.

The short surge in hijacking attacks in the first quarter of 2017 was attributed to several factors. These include the continued intent of pirate action groups to launch attacks and the opportunity to do so, due to lessened adherence to ship self-protection measures, including Best Management Practices (BMP). Independent deployers represented the primary naval presence in the region, but both coalition forces and independent deployers decreased days of operation, or days on station in the region, in 2017.

Effects of Piracy on human security

Piracy has led to significant decline in human security, by instilling fear, insecurity and fatalities along the East African coastal shoreline. According to OEF- OBP on the state of piracy, the number of piracy on the East African coastline tripled in 2016. There were 54 piracy incidents on the East African coast in 2017—more than triple the 16 incidents recorded in 2016.  It states that the number of sailors affected increased from 306 in 2015 to 1,102 in 2017, with at least 79 of them injured or threatened in the attacks in which 41 per cent of the attackers were armed. The number of attacks as in previous years shows that the capability and intent of pirate networks has not decreased. This was witnessed with the increased number of hijackings, including of the Aris 13, the Asayr 2, and Al Kausar. The number of hostages killed or injured by Somali pirates increased significantly in 2017, according to further maritime reports.

Nearly 4,000 seafarers were fired upon by Somali pirates, the report said. Of that number, 968 seafarers faced armed pirates who managed to board their vessels, while some 413 of those seafarers were rescued from secured rooms on their vessels by naval forces. At least 1,206 hostages were held by Somali pirates in 2011, including 555 seafarers attacked and taken hostage during the year, and 645 captured in 2010 who remained in pirate hands. Half of those held were subjected to punching and slapping and 10% suffered violent abuse such as being locked in freezers, burned with cigarettes and having their fingernails pulled out with pliers, the reports stated.

Effects of piracy on economic security

In 2017 the economic effect of piracy on East Africa was estimated at USD1.4billion. This was a slight decline from $1.7 billion in 2016, mainly due to a 13 per cent decrease in the use of privately contracted armed security personnel. The costs had stabilized over the past three years, after a decline between 2010 and 2015, from about $7 billion in 2010 to $1.3 billion in 2015.  None the less, these amounts are substantively high if measured in correlative development terms and represent a significant economic security risk to the region.

Piracy has increased administrative cost measures in counter piracy measures. It has led to increased military presence and diversion of vital resources to combat piracy.  In 2011 the total costs in military counter piracy measures was estimated at USD 1.27bln.  This was spent on administrative budgets, military vessels and unmanned aerial vehicles. An additional USD 635 million was spent on insurance premiums. The cost of prosecuting pirates in trials and imprisonment was USD5.3 million.  These figures have substantively increased in 2017.

These are vital resources which could have been used for other development activities such as social service provision and infrastructure development but have been switched towards addressing piracy off the coast of Somalia.

Effect on trade and commerce

Piracy has affected trade and commerce along the East African coastline. According to the South African Institute for Strategic studies (ISS), trade in sub-Saharan Africa was slowly suffering from the consequences of piracy on major shipping liners along the Eastern African coast.

The resurgence of incidents of piracy has the potential to affect international trade and maritime movement of cargo around the East African coastline. In advertently this has collateral damage to East African economies and other Countries around the world.  Shipping liners have to consider alternative routes which are perceived safer routes such the Suez Canal, the South African tip or even the Panama Canal.

Increased costs in freight and insurance charges.

One of the major consequences of piracy is the increase in insurance rates for the shipping industry and the need to purchase additional insurance to cover the risk associated with transiting a piracy prone region. For example, insurance companies now offer “kidnap for ransom” policies to ships that move through the Suez Canal.  According to one insurance company, the U.K. based Hiscox, prices the policy at US$15,000 per trip through the Gulf of Aden and was reported to have increased dramatically.  Also, because of the danger posed to shipping transiting the Gulf of Aden, insurance premiums had risen tenfold. For example, insurance companies had increased premiums for sending a cargo shipment through the Gulf of Aden to about US$9,000 from US$900 in a period of one year.

From an economic point of view, having Africa’s access to internationally developed materials such as nuclear reactors, vehicles, tractors, imported and exported food, and other materials reduced will be devastating. More worrying is the impact of a decrease in exports of natural resources from African countries.

Piracy has changed the livelihoods of communities along the Somali coastline who have abandoned vital livelihoods such as agriculture and nomadic farming to join piracy. Fishing communities have also been forced to abandon fishing from fear of attacks at sea and hence changed the entire economic security of communities living along the coast of Somalia. According to the UNDP many Somali youth joined piracy as a source of employment and piracy is seen and proven to be a vital ready source of income and path to quick wealth and prosperity.

Piracy financing of money laundering and terrorism

The proceeds from piracy have found their linkages to finance money laundering and terrorism activities. According to the World Bank, the Somali pirate business model relies heavily on onshore support infrastructure to conduct ransom negotiations. Generically a pirate operation consists of armed offshore operations with onshore support that provides shelter for returning pirates and access to markets for stolen goods and for the goods, services, and manpower needed for pirate attacks. The total amount of money paid in ransom fees by various companies was estimated billions of dollars. Most of this was invested in legitimate business such as real estate, forex bureaus and financing Alshabab terrorist activities.

There is risk of fueling war and further instability with deadly military hardware captured by pirates falling in the hands of militants.  Although previously pirates targeted fishing vessels and smaller cargo ships, they later targeted larger vessels such as chemical tankers, bulk carriers and thus pausing a higher security risk than ever.

Amongst their high-profile targets included a Ukrainian vessel loaded with heavy weapons and a Saudi owned VLCC. The MV Faina, or “crown” in Russian, was a Ukrainian vessel loaded with rifles, heavy weapons and 33 Soviet made T-72 tanks that the pirates captured on 25 September 2008. The ship was initially thought to have been heading for Sudan or some other African country, possibly Kenya. The MV Faina was then surrounded by three warships from the Combined Task Force 150 during its hijack to prevent the ship’s deadly cargo from ending up in the hands of Somalia’s Islamic insurgents and other terrorists. The initial ransom demand was for US$35 million but it was finally released for a reported sum of US$3.2 million.

Piracy has affected Tourism and investment along the East African coast of Somalia. Piracy attacks on hotels and large deep-sea fishing vessels has significantly retarded invested in East African coastal economy, along the Somalian coastline.

There have been regional attempts to combat piracy. The US and EU Naval patrols and tracks pirates off the East African Coastline and the Gulf of Aden under the auspices of Joint Task Combined Task Force (CTF) 150 including troops from the US, EU and Canada. This has accounted for the declining numbers of attacks in the recent years. The downside of this effort is that the task force is externally funded and cannot be a long-term solution.  This therefore demands that Eastern Africa states step up their capabilities to counter piracy along its long coastline.

In a nutshell, piracy represents one single new threat to human and economic security. Despite a reduction in reported cases of piracy in 2018, the disappearance of piracy in the 19th Century and its resurgence in the 1990s and increase between 2000 and 2017 shows that this security threat is not over. Perhaps the pirates and their benefactors are planning and waiting to strike their next target.  Extra vigilance, collective military and civilian measures are required to contain this threat.

 

 

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