Why South Sudan is Egypt’s new headache over Nile water treaty

(Daily Nation) The new regime in Egypt has gone on a charm offensive much like its predecessor in an effort to have the colonial-era treaty on River Nile stand.

But however hard it may try Cairo is now confronted with new realities as an independent South Sudan, which controls a substantial part of the River Nile, has been born.

South Sudan, which could choose a new slate as far as treaties are concerned, could inevitably prove to be the North African state’s biggest test over the Nile waters.

Egypt and Sudan (Khartoum) have been at odds with upriver nations over their efforts to overturn colonial era-treaties granting them the lion’s share of the river’s water.

But recent developments in the two countries and in the region have significantlyturned the tide against them. In Egypt, long-serving President Hosni Mubarak was ousted by popular protests in mid-February.

Leaked diplomatic cables

The military council that now runs the country also arrested several of Mubarak’s former ministers.As if the February regime change was not enough, South Sudan, which has been an observer at past Nile treaty negotiations, now wants to claim its rightful place at the discussions and has already applied to accede to the treaty.

Leaked US diplomatic cables revealed that in 2009 Cairo was uncomfortable with a divided Sudan, fearing an independent South would threaten its stranglehold on the River Nile waters.

In the cables published by online whistleblower WikiLeaks, a former foreign ministry official had even asked the US government to help postpone the January 2011 referendum by four to six years. The official said the creation of “a non-viable state” could threaten Egypt’s access to Nile waters so vital to the country’s agriculture.

But Egypt could renew ties with Ethiopia, which endured more than a decade of lukewarm relations with the Mubarak regime after the June 1995 attempted assassination of the Egyptian leader in Addis Ababa.

On the other hand, Khartoum, too, has been weakened by the secession of the South, with many observers almost certain that Juba will work with the upstream states to force the North and Egypt to agree to a new treaty.

The fact that South Sudan is oil rich is seen as a major reason for tension. However, some argue that the vital water resource is likely to be a far bigger bone of contention in the region long after the oil wells have dried up.

Nairobi is preparing to host the 19th Nile Council of Ministers (Nile-COM) of water affairs of the Nile Basin states on July 28 under the theme “The Nile Basin: An Imperative for Cooperation”.

The meeting will be the first for Egypt’s new man in charge of the water docket Dr Hussein Ihsan Elafty where he is expected to explain the new government’s stand to ministers from Burundi, Democratic Republic of Congo, Ethiopia, Sudan, Tanzania, Eritrea, Rwanda, Uganda and Kenya .

The meeting will also announce rotation in the chairmanship of the Nile Council of Ministers. Ethiopia, the current chair, will hand over to Kenya.

“To us, the independence of South Sudan is good news, and we expect they will be allowed to accede soon,” Fred Mwango, the head of Transboundary Waters at Kenya’s ministry of Water and Irrigation, said.  Retired diplomat and executive director of Africa Peace Forum Ochieng Adala believes that the Republic of South Sudan will act in good faith like the rest of the upstream states to make sure that Egypt has its fair share of the waters.

“Egypt is the gift of the Nile. Consequently, no state would want to deny Egypt of its lifeline, as long as Egypt also acknowledges the legitimate rights of all Nile Basin Countries to an equitable share and uses of the Nile Waters,” said Mr Adala.

Among the upstream states, the resolve to have the Comprehensive Framework Agreement (CFA) to replace the 1929 treaty seems unstoppable. The new agreement was opened for signature in May 2010 for a period of one year until May13, 2011 after more than a decade of negotiations through a platform provided by the Entebbe-based Nile Basin Initiative (NBI).

However, NBI suffers from a weak legal base — its existence is founded more on a gentleman’s agreement among member states than any binding agreement.

Remains in limbo

The anticipated Nile Basin Commission, whose establishment and decisions would be legally binding on members, is what is required but remains in limbo over disagreements among the riparian states.

The threshold to make the new treaty binding on all, Egypt and Sudan included, has been met after six riparian countries — Ethiopia, Kenya, Rwanda, Tanzania, Burundi and Uganda — signed the CFA.

They are championing a treaty that gives them unhindered access to the Nile waters so long as they do not cause “significant harm” to other members.

This is the bone of contention as Egypt and Sudan — the former depends entirely on the Nile for its water requirements — have cited historical rights that give Egypt access to more than half of the river’s annual flow.

When the matter threatened to scuttle the negotiations, Nile-COM, at a special conference in Kinshasa in May 2009, annexed the contentious Article 14(b) of the Comprehensive Framework Agreement which relates to historical water rights and uses.

The article was to be refined by an international audit committee, but to date no agreement has been reached as the two sets of countries have stuck to their guns.

And in May 2010, the CFA was opened for signatures for a year. Among the upstream states only DR Congo has not signed. 

Growing defiance

Much as it appears confronted with the realities of a new state and the growing defiance of the upstream states, Egypt’s new military council appears not to have abandoned the former regime’s charm offensive.

Cairo has been sending emissaries to the upstream states to talk them out of ratifying the new treaty.

Nairobi hosted such a delegation a fortnight ago.Kenya, as the next chair of Nile-COM, is also calling on all members to cooperate to seal the deal on the non-management of the resources of River Nile.

Meanwhile, the NBI is now in the process of preparing a number of regional investments totalling Sh40.7 billion ($452 million).

In the past, the rift among the riparian countries has affected the execution of the Subsidiary Action Programmes particularly on the Eastern Nile. 

About Sh88 billion ($979 million) of investment projects are now under implementation in the region.

But the continued rift over the CFA could scare off donors, some of whom are growing increasingly impatient with the NBI, a loose entity lacking in legal strength.