Opinion: The Ilemi Triangle Disputes

The genesis of the border crisis in Africa,

By Kang G Kang,

June 02, 2022 — The colonization in Africa started around 1800s – 1900s by the European powers intended to be in full direct control of African economies through invasion, annexation and division and to foster industrial revolution empowerment of their socio-economic program. However, partial objectives of the colonization were for political dominations, exploitations, humans and natural resources control. Furthermore, the colonizers ventured into slave trade and other inhumane activities and use Africans against their will in form of forced labor. Another objective was to impose European manufactured goods and compelled Africa to accept through direct and control policy via colonial authorities installed. The gross human misconduct against Africans by colonial rulers was a barbaric act in nature and their governments should be held accountable. Unthinkably, in the annexation, demarcation and delimitation processes, the European colonizers held the Berlin Conference in 1884, divided the entire continent of Africa without participation of the Africans. The planned invitation was carried by German chancellor Otto Von Bismarck supported by British and Portugal along with other thirteen (13) representatives in Europe and the United States of America. Moreover, the partitioning was conducted without involvement, consideration of the traditional setups and historical facts of the indigenous Africans. As a result of its shortcomings, it is genuinely regarded as the genesis of the boundaries’ crisis in Africa. After the decolonization progression of the British and other colonizers, most African countries disgustingly engaged in endless border disputes.  

Organization of African Unity (OAU)

On 25th May 1963, the Organization of African Unity was founded and then its successor the African Union (AU) invested in resolving border issues. Most recently in 2007, African Union established borders’ program charged to solve border disputes between African States. The objective was to form border governance in promoting peace, security, stability and sustainable development in Africa. The strategy added five pillars; 

1. Development of capabilities for borders governance, 
2. Conflict prevention, border security and transformational threats, 
3. Mobility, migration and trade facilitation, 
4. Cooperative border management and 
5. Borderline development and community engagement.

Accomplishments

There have been some positive achievements such as the triangle maritime shared boundary between Tanzania, Mozambique and Comoros disputes. However, many countries are spending large amounts of money in International litigation to resolve border disputes. Other challenges are Cameroon, Nigeria, Senegal and many more. In pursuance, the African Union Border Program Ministers in charge of border issues recommended annual review mechanism border Day JUNE 7th, to regularly assess progress and challenges. If this border day is scheduled in 2022, the leadership of the Republic of South Sudan should consider ways and means of addressing all our border concerns with our neighboring countries. 

Though, this article intended to focus on disputes in the nascent State of the Republic of South Sudan “the Ilemi Triangle ” relations with the Republic of Kenya. As per historical linkages, the two countries shared common cultures and languages. Many tribes in Kenya originated from South Sudan, such as Luo, Kalenjin and others. At the time Sudan was at war, Kenya housed a good number of South Sudanese refugees, political asylum seekers, supported them socially and morally. At the outbreak of the Sudan peace process, Kenya was leading the negotiations, financially backed by TRIOKA countries up to the independence of the Republic of South Sudan. After the independence of South Sudan, Kenya continuously helped in strengthening the institutional capacities of the country. Currently, so many South Sudanese live, own homes, invest and regard Kenya as their second home. Vice Versa, many Kenyans are investing in South Sudan and also considered as brothers and sisters.

Map of the Ilemi Triangle demarcated in 1902 Maud Line, 1938 Red Line and 1947 Blue Line

In 1911, the colonial powers of East Africa began negotiations on rectification of the boundaries. The boundary commission was established in 1913, instructed to draw up a well defined boundary for mutual administration advantage of Sudan and Uganda. The commission presented its report to the Order in Council 1914; it was endorsed, approved, published and implemented.

Geographical location

The Ilemi Triangle is located in Eastern Equatoria State then known as Equatoria province in South-East of Sudan. It is bordering Ethiopia in the East and Uganda (now Kenya) to the South; it’s approximated 8,743 Sq Km. It is a mineral rich area; grazing ground for all tribes raging from Turkana of (Kenyans), Toposa, Didinga, Nyang’Atom (South Sudanese), Dessanach, Merille, (Ethiopians) and Karamojong (Ugandans) citizens. 

Historical background

The historical background, Ilemi Triangle was named to honor Anuak tribal Chief Ilemi Akwon of Sudan. The territory is situated between Sudan (Now South Sudan), Kenya and Ethiopia. Moreover, according to the Institute for Middle East and Islamic Studies at University of Durham by Philip Winter, O.B.E., it said, 70 years ago, record published by Whalley describing “Ilemi Akwon Anuak Chief as a son of a Boma Murle mother and Anuak father who died in the hands of Kichepo tribe as the title-holder of the land”. Thus, by virtue of this, the land belongs to South Sudan. This piece of land seems to be claimed by Kenya but all official records showed and agreed that the land belongs to South Sudan supported by 1902, 1907 and 1972 treaties.

The table below displayed lists of the treaties cited above

Date	The genesis of the treaties
1902	The demarcated line was initiated by British East Africa and marked the “Maud line” and recognized in 1907 by Sudan, Kenya and Ethiopia
1907	In December 1907, agreement was signed and placed the entire demarcated Ilemi Triangle line to Sudan
1914	The Uganda-Sudan border commission agreed to allow Turkana tribe access Ilemi triangle on grazing purposes
1972	The Ethiopia-Sudan boundary alteration did not involve Kenya and confirm no claim from Ethiopia

Prior to the “International Boundary Line”, the 1914 Order in Council, the Ilemi Triangle was an open grazing ground for nomadic tribes of Ethiopia, Uganda and Sudan. In the absence of the administrative setup, the grazing area turns into raiding grounds by Ethiopian tribes and others. As a result, it was difficult to manage the raiders and agreeably the talks were initiated to establish an administrative unit in the area. Though the land belongs to the Sudan government, the Sudanese government was not in a position to set up an administrative unit due to difficulties in the area.  However, the victims were mainly from the Turkana nomadic tribe, Kenya was eager to avail its willingness to undertake the responsibility. The concerned parties deliberated and agreed to grant Kenyan government “Temporary Administrative Rights” which is permission to administer the area for a period of time and then Sudan government to contribute its agreed obligatory administrative costs for maintaining laws and orders in the area.  

As per territorial administrative rights or sovereignty transfer agreement, in a simple term, it means another State to occupy foreign land for administrative control purposes only through amicable permission in a given period legally allowed by law. The International Law provides the possibility for state by law vested in another state. The State administering the territory of another state on the basis of “lease” can not acquire a prospective title to that territory because of its administrative possession not exercised a titre de souverain (Taha 1983) “State claiming and exercising sovereignty over its territory”.

It is also worth mentioning, prior to the Ilemi Triangle disputes, Sudan and Kenya had no border before. The border surfaced as a result of territorial transfer of Rudolf province of Uganda to Kenya in 1926. The Rudolf province known as Lake Turkana (Turkana District) situated in the South-east of Sudan and inhabited by the Turkana tribe. 

The border raids in early 1920s by Ethiopian tribes through Sudan’s territory occurred, resulting in killing, destruction of property and livestock. These activities passed through Sudan territory and were condemned by Kenya, Sudan and Uganda. As a result, a conference was held at the Uganda town of Kitgum on 15th – 17th April 1924 and discussed the alarming insecurity and administration issue of Ilemi Triangle (F.O.141/573/17327, Report of the Kitgum Conference). Four years later, in the pursuit of raiders, a telegram was sent in April 1928 by Governor General of Kenya persuading Sudan Government to grant Kenyan security forces entry into Ilemi Triangle mainly to cut off raiders and recover looted stocks. The Governor-General of Sudan agreed and granted permission to Kenyan forces entry to the Ilemi triangle on the ground of recovering looted stocks and brings the criminals of Donyiri and Merille South Western Ethiopian to the book as stated above. In the process of administration set up, Kenyan first class Magistrate unanimously appointed and supplied with Sudan penal code, criminal code procedure and title III of the law of Sudan.

Surprisingly, after Kenya gained its independence in 1963, a dispute erupted; Kenya alleged that the administrative boundary was the international boundary line, thus, the temporary administrative area should be an integral part of its territory. Without consulting with other governments, in 1967, Kenya published illegal maps featuring administrative areas and replaced the 1914 Order in Council of international demarcated boundary line with its own. With embarrassment, this move did not satisfy the publishers of Atlas, therefore, it declined to publish and showed the international boundary line instead.

In 1973, a joint committee was formed by the Sudan and Kenya governments, raised the boundary issue and agreed for further meeting. The second meeting was held in 1976, Kenyan government awkwardly claimed that there was a lack of documents. On the other side, the Sudan government provided all authenticated documents to ascertain the international boundary and other relevant documents since time immemorial. The Kenyan government opted for adjournment and requested another meeting in order to provide documents supporting its claim. The next meeting was scheduled for May 1982 but it did not take place due to the outbreak of civil war in Sudan (Southern region). The Kenyan government took the advantage of the civil war and rushed to reproduce and published a one-sided unrecognized map in 1988 annexing “ILEMI TRIANGLE” and claiming to be an integral part of Kenya without legal basis. 

The government of Kenya’s argument was that there wasn’t any justified grazing ground for the Turkana tribe (Kenyan subjects) and therefore, the grazing ground had to be taken into account by annexing the ELEMI TRIANGLE into the Republic of Kenya’s map. Another unrealistic reason was, since the Kenya government was granted administrative post through its predecessor in the area, it had legitimate right to claim it. In support of the claimed, February 2022, an article written through PAX-Netherlands-based titled “The Ilemi Triangle, understanding a pastoralist border area” by Eliza Snet stated that, Dr. John Garang De-Mabior, the leader of SPLM/A rumored to made informal deal with late president Moi of Kenya ceding the entire Ilemi Triangle area in exchange for military logistics (Waithaka 2018). It contradicted itself by stating that it was never achieved and nor did president Moi never speak about it. 

The credibility of the author is in limbo, if the above statement is valid, why wasn’t it made public or surface after South Sudan gained its independence? Secondly, SPLA was a rebel movement, it had no legitimacy over the land and therefore the leadership couldn’t adore such illegal practices. On the other side of the coin, Kenyan government knows all the percussion entails on such practices, why would they accept military logistical exchange for disputed territory. This means, the Kenya government lacks legitimate practices as the government. In fact, Kenya government never quid pro quo any logistics to Sudan People’s Liberations Army (SPLA) instead, they misappropriated military logistics pledged by the Namibia government to the SPLA in early 1990s.

In the meeting of 1976, the government of Sudan availed the 1914 Order in Council as the only recognized international boundary between the two countries. Unjustified claims of the Turkana “grazing ground” were seasonal movements in search for water points and the survival of their livestock. Noticeably, in the African traditions, nomadic communities prior to international boundaries can access neighbors’ grazing grounds as long as there is enough to share and no resistance, threats, communal disputes, differences or hostilities. The administrative post granted was for insecurity purposes in the area to prevent raiding and it was upon Kenya’s request to Sudan to allow Turkana people to use the grazing ground beyond the demarcated International boundary. Due to the drought around 1920s-30s, Sudan allowed Kenya, Turkana and other neighboring tribes to access the land. 

Another insecurity incidence occurred, there has been clashes between Turkana and Toposa tribes in the border, 2009, South Sudan government and Kenya government signed a Memorandum of Understanding (MoU) allowing Kenya again to setup administrative post at Nadapal under pretext of preventing tribal clashes but apparently denied native tribes of South Sudan access to their historical grazing land and freedom of movements. Such behavior caused an uncomfortable situation and raised an alarm by the community. The Kenyan government objective statement was that the, “troops deployed are to maintain peace” among the communities in the bordering area. As a concern citizen, one would wonder, if this is the case, why not endorsing unanimous disarmament of the civilians on both sides and guard their movements as an obligation? The deployment of the troops in the territory of South Sudan is viewed by many as a land encroachment soft politic. Since Kenya has been on illegal de facto claimed of Ilemi Triangle area, the government of South Sudan should look at it in different lenses and seeks permanent legal remedy once and for all instead of succumbing to repetitive fishy insecurity administrative post requests. What is bogging; during British colonial era, Kenyan government asked for establishment of an administrative post in Ilemi Triangle on the ground of insecurity in the area due to rival tribes on the grazing area. The Sudan government through colonial General Governor granted them administrative rights to establish a post. As the result of such, the Kenyan government attempted to re-demarcate the recognized international boundary under pretext of “Terra Nullius”. The term terra nullius is a Latin expression of “Nobody’s land” a land that’s uninhabited or unoccupied. The question that’s begging is why the Kenyan government mostly the only body whose concern is about the insecurity in the areas and quick to willingly asks for security post? The government of South Sudan should re-evaluate these creepy land soft political encroachments “policy” under the pretext of administrative rights or permissions.

In the light of the international boundary laws, prescriptive title or use of administrative permission issued for administrative use only. Thus, the circumstances in which Sudan granted Kenya limited concessions in the Ilemi Triangle can not justify ceding it to Kenya. It is clear, all the official communications showed, Kenya was by conduct and permission to enter Sudan due to drought in 1920s-30s. Subsequent lawlessness occurred among the nomadic tribes grazing in the un-administered area. As such, the administrative post issue emerged; the Kenya government opted for it and was allowed to set up an administrative unit supported legally and financially by the government of Sudan. Succinctly, considering International boundary, the changes tempted in several occasions can not actually change an international boundary. The Kenyan government might have been under assumption that the government of South Sudan is oblivious of the facts which could have triggered ongoing illegal claims and exploration of the natural resources.

The territorial inconsistency in the disputed areas are as old as human race boundaries’ conflicts which usually occurred between communities, villages, tribes, ethnic groups, and pastoralists and farmers, but the ultimate remedy to such disputes could be through  diplomatic or permanent legal demarcations settlement.

The Republic of South Sudan became an independent State on 9th July 2011 with 98.83% voted in the referendum for separation. After two years of independence, it dubbed into internal conflict which caused setbacks on important issues for the State to undertake. As a result, so many borders are encroached by the neighboring countries in which it sends a signal of undermining the territorial integrity of the Republic of South Sudan. Although this piece of writing mainly focusing on “ILEMI TRIANGLE”, it also highlights other alarming South Sudan-Sudan border issues such as Higleg (RAA), Kaka Tajaria (UNS), Hofra Nias (WBS), Kafia Kenji (WBS) and Mile 14 (NBS). Another border issue with Uganda, we have disputes emerging from Latouke (EE), Magwi (EE), Nimuli (EE), Adjumani (EE) and Kejikoji Moyo and Yumbe (CE).

The land encroachment is an unauthorized intrusion into another State’s sovereignty through illegal creation or annexation of physical structure and it comes as a result or of an attempt to crave for exploitation of natural resources which may be found in the area. The Kenyan government knows that the area is not administered by the Sudan government because of inaccessibility coupled with instability in the Southern region. This prompted loopholes for Kenya government excuses and reasons to creepily try to annex the Ilemi Triangle. It is an alarming concern that the Kenya government possessed illegal maps which purported that the area belongs to Kenya.  What could possibly motivate Kenya government to undertake such an illegal move? However, there is an oil discovery prospect in the area, which could have ignited the Kenya government’s relentless interest in Ilemi Triangle, but we know that the government of South Sudan did not contract any company to conduct exploration. On the other hand, there is unconfirmed leaking information that there is an underground exploration undertaking place. If this is true, who is exploring untapped natural resources in the area without permission from the host government? Or does the obsolete administrative permission translate into a legal claim of the land? The Republic of South Sudan does not have any legal or legitimate agreement with the Republic of Kenya rather than outdated administrative right permission during the colonial era. Therefore, swift political remedy or urgent form of intervention is highly awaited. The view of South Sudanese is that, we shed blood for this land and certainly can’t afford to relinquish an inch. Well, better be late than never, immediate action is paramount.

Kang G. Kang

Concern citizen

South Sudan

BIBLIOGRAPHY:

1. THE ILEMI TRIANGLE, Sudan-Kenya Disputed International Boundary by Dr. Muaz Ahmed M. Tungo, 2008
2. THE SUDAN-ETHIOPIA BOUNDARY DISPUTE, Faisal Abdel Rahman Ali Taha, LL.B (Khartoum) LL.B. Ph.D (CANTAB), Associate professor of Law University of Khartoum, 1983
3. DURHAM MIDDLE EAST PAPERS

A Border Too Far: The Ilemi Triangle Yesterday and Today, Philip Winter O.B.E., Durham Middle East Paper No. 100

4. COMMUNAL PAPERS IN PUBLIC RECORDS, office (Cmd) Kew Gardens, London, ‘Agreement between the United Kingdom and Ethiopia relative to the frontiers between British East Africa, Uganda and Ethiopia’, signed at Addis Ababa by the Emperor Menelik II and his Britannic Majesty’s charge d’affairs on 6th December 1907, published in Treaty series No. 27 (1908)
5. The Ilemi Triangle, understanding pastoralist border area

PAX, authored, Eliz Snet, Feb 2022