In characteristic style, the Egyptian water minister, Mahmoud Abu-Zeid, termed the pronouncement an act of war, even though this was not the first time Kenya had tried to disown the treaty. Besides, a UN Assistant Secretary-General, Mr Shafqat Kakhakel, raised questions over the dispute, which former UN Secretary-General, Boutros-Boutros Ghali, had predicted would lead to water wars. Mr Shafqat pointedly said that the UN will not arbitrate should Egypt invade Kenya.

The interesting thing is that Kenya later retracted the comments, saying that it was still bound by the treaty and was still part of the negotiations to have the treaty reviewed to allow it to use the waters of Lake Victoria and its rivers � Nyando, Sondu Miriu, Mara, Yala and Nzoia. It was not surprising, though, as since independence, East and Central African states have been whining over the treaty but, with Egypt threatening war, proved too helpless to do anything.

Nonetheless, the treaty, signed by Mohamed Mahmoud Pasha for Egypt and Lord Lloyd for the United Kingdom in 1929 in Cairo, has been the subject of heated debate, and it has quite intriguing stipulations. Article 4 (b), which is probably the most contentious, states: "Save with the previous agreement of the Egyptian Government, no irrigation or power works or measures are to be constructed or taken on the River Nile and its branches, or on the lakes from which it flows, so far as all these are in the Sudan or in countries under British administration, which would, in such a manner as to entail any prejudice to the interests of Egypt, either reduce the quantity of water arriving in Egypt, or modify the date of its arrival, or lower its level."

Others have argued that the treaty was signed merely to protect the interest of Egypt and Britain�whose main mode of transport from Africa to colonial India was through the river Nile�without taking into account the interests of the Eastern and Central African states.

What is not clear is whether, either under the treaty or the international law, Egypt has any powers to go to war in the face of violation, though Egyptian legal experts have widely interpreted it to arrogate their government such powers. What is evident in the treaty is, however, the provision for arbitration. It states: "in case of any difference of opinion arising as to the interpretation or execution of any of the preceding provisions or as to any contravention thereof, which the two Governments (Ethiopia and Britain) find themselves unable to settle, the matter shall be referred to an independent body with a view to arbitration."

It is argued that Egypt was pushed into coming up with such treaty by pressure from the independence movement in various countries. In 1956, therefore, in Cairo, Sudan agreed to the full utilisation and control of the River Nile waters. Shortly after independence, East African States roundly condemned the treaty and gave Egypt ultimatums over the treaty.

Setting the ball rolling was the then leader of Tanzania�s freedom struggle, Julius Nyerere, who declared on the eve of independence thus: "As the result of such considerations, the Government of Tanganyika has come to the conclusion that the provisions of the 1929 agreement purporting to apply to the countries under British administration are not binding on Tanganyika." Nyerere gave Egypt two years to respond failure to which the treaty would be nullified as per the Vienna convention on international treaties.

But on November 21, 1963, Egypt replied to Tanganyika saying the treaty was still valid. Uganda also raised similar questions in 1962. "During the time of the British Protectorate, Uganda was not in a position to enter in its own right into treaty relationships with foreign sovereign States," it stated.

On its part, Kenya sent a note to Egypt asking for negotiations within two years failure to which such treaties "which cannot be regarded as surviving according to the rules of customary international law will be regarded as having terminated." But Yosef Yacob, a scholar, argues that since "Egypt did not reply, as far as the sovereign Kenyan Government is concerned, the treaty ceased to have any effect with respect to Kenya as from December 12, 1965." The Kenyan position has, however, been that fundamental change�such as the revocation of colonialism�in circumstances, as provided for in the treaty necessitated re-negotiation so that the country can sell its water to Egypt as Egypt has been doing with other countries.

However, the Vienna Convention states that countries that won independence through succession inherit treaties and agreements entered into by their colonial masters. But Yacob argues that "dispositive treaties create real rights and obligations resembling the conveyance of the English and American private law." As such, he says, such treaties are immune to the change of sovereignty and run with the land. "In other words, they are not personal to the contracting parties and impress upon the territory a permanent status that remains unaffected by the change of territorial sovereignty.