By Given Mutinta
It is worthy of note that the draft constitution completely ignored the Barotseland Agreement 1964 (BA 64). This action is tantamount to denying Zambia’s history and future as unitary state.
Nonetheless, it hasn’t come as a surprise. Since Independence, we have never had a president able to deal with the BA 64 question in a straightforward, truthful, fair, and genuine manner.
The Zambian governments have been simplistic, impolitic, and deceptive in their conducts.
To ignore the BA 64, and declare Zambia as a sovereign republic, unitary, and indivisible makes a very good cosmetic declaration. It shows that the current government like previous regimes is not ready to address the sovereignty of Barotseland.
This lack of seriousness in tackling the BA 64 will have dire consequences on Zambia. We cannot talk about a Zambian constitution when Zambia as unitary state no longer exists. In all conscience, which unitary state is the draft constitution talking about?
We all know that the nativity of Zambia was by the BA 64 between Barotseland and Northern Rhodesia. Without this agreement, there is simply no Zambia!
Without pulling out all the stops to settle the Barotseland issue, government is incautiously talking about a Zambian constitution. How long shall we continue to be denialists of the fact that Zambia as unitary state ceased on March 27, 2012 when Barotseland reverted to the BA 64 as a result of the abrogation of the agreement by the Northern Rhodesia regime?
It is common knowledge that Barotseland was a sovereign and autonomous nation for centuries. When Missionaries and Colonialists arrived in Barotseland, they acknowledged and respected the sovereignty of Barotse nation. This led to a number of treaties including the Northern Rhodesia Order-in-Council of 1962. Sections 57 and 80 of this Order-in-Council; and sections 59 and 112 of the Self-Governing Constitution of 1963 both distinctly affirmed and recognized Barotseland as a separate State within Northern Rhodesia.
The last treaty, the Zambia Independence Act and the Zambia Independence Order of 1964 also gave recognition to the BA 64. In other words, the objective outcome of the BA 64 ceremonial occasion acknowledged the sovereignty of Barotseland.
The BA 64 clearly defined relationships between the two sovereign nations. Thus, it is not legally possible in our constitution to talk about a unitary state without the BA 64 unless government has validated the BNC resolutions though they are not dependent on government’s validation.
In almost eleven treaties, the Litunga always protected himself using a passage that ‘nothing written in these agreements shall otherwise affect my constitutional power or authority as Chief of the Barotse nation.’ However, treacherously, the first republican president, Kenneth Kaunda’s (KK) regime abrogated the BA 64. KK betrayed the people of Barotseland by introducing both new legislation and carrying out constitutional amendments to invalidate the BA 64.
His betrayal inhibited the people of Barotseland from continuing with their right to govern themselves as Barotse nation, within a unitary Zambia. Without doubt, the legality of KK’s conduct cannot stand in any international impartial court of law. The BA 64 is not a matter for one of the signatories to abrogate because the same power that KK had to sign on behalf of Northern Rhodesia was the same power that the Litunga had to sign for his nation, Barotseland.
It was wrong for KK to abrogate the BA 64 especially that it had no reservations or essentially caveats when the agreement was signed. Selfishness made KK to abrogate the agreement or fail to call for a formal termination of the agreement. The two states would have gone through the termination process and Barotseland would have continued to be a sovereign state.
It is irrefutable that the BA 64 is legal thus a self-executing agreement. Merely becoming a party in 1964 put the agreement and all of its obligations in action. The BA 64 was ‘in good faith’ given to the terms of the agreement in their context and in the light of its object and purpose.
The BA 64 also invoked the principle of maximum effectiveness. Its agreement language had the fullest force and effect possible to establish obligations between Northern Rhodesia and Barotseland. Thus, the implementing of legislation by Northern Rhodesia was an evasion of its obligations by the failure of its legislature to honour necessary and existing domestic laws.
It was also wrong for Northern Rhodesia to impose its particular interpretation of the agreement upon the Barotseland. The BA 64 never referred to Barotseland as a province or rather ‘Western Province’. KK’s conduct was flawed as the Litunga never disavowed the initial unilateral interpretation the BA 64. There was no consent by the two parties involved for the interpretation to have the legal effect.
Thus, KK violated the nature of the agreement to create a ‘fake unitary state’. As a result, Northern Rhodesia’s agreement obligations were materially violated and terminated, and so was the treaty. This made it lawful for Barotseland this year in Limulunga to invoke this breach as grounds for terminating their obligations to Northern Rhodesia.
In essence, therefore, if it was legal for KK to abrogate the BA 64, it was also equally legal for the Litunga or the Barotse National Council (BNC) this year to abrogate it as well, with the attendant consequence that the Litunga will continue governing Barotseland as it had done centuries before.
There is nothing that would have prevented the BNC from declaring the internal self-determination and autonomy of Barotseland, as provided for in the BA 64, within a unitary Republic of Zambia.
Any impartial international tribunal for the BA 64 issue will legally establish that there was sufficient breach of the agreement by the Northern Rhodesia government. It prematurely and wrongfully terminated its own obligations due to its breach itself thus liable for breach.
How can one invalidate the BA 64 that established political boundaries at the same time expect to have a unitary state? This level of selfishness, arrogance, and lack of seriousness is mind-boggling!
As far as we know, the Litunga is not privy to any other agreement, other than the BA 64, on which they have tendered their signatures, agreeing to how Barotseland is to be governed. Therefore, essentially, it is legally accurate and factual to state that Barotseland has been ruled illegally by the Zambian governments since 1964. There are no legitimately-mandatory instruments dully signed by the Litunga, giving the Zambian government power to execute everyday administration and governance duties over Barotseland.
It is not to err for the people of Barotseland to have the BA 64 to protect their human, economic and political rights. It is as a result of the courage, sagacity, and vision of their fore-leaders. In good conscience, what would have legally stopped the people of Barotseland to revert to the BA 64 after the agreement was abrogated by KK and his regime?
Certainly, it is only denialists, misguided and selfish people who think supporting the BA 64 is tantamount to treason. For how long will it take Northern Rhodesia to acknowledge and respect the human, political and economic rights negotiated by the people of Barotseland, at the point of joining Zambians, before union as one country?
If the colonial government acknowledged, recognized, and respected the sovereignty and political autonomy of Barotseland, why should Northern Rhodesia that abrogated the rights and privileges of the people of Barotseland fail to do so? For how long will Northern Rhodesia continue to treat Barotseland as its colony?
Not even the creation of structures similar to a federal system of government where provinces have semi-autonomous powers addresses the BA 64 question. We all know that there was no agreement called ‘Western Province’. The tagging of Barotseland as ‘Western Province’ was an autocratic imposition of the Northern Rhodesia government to alter the margins of Barotseland. The aim was to give effect to its deceitful annulment of the BA 64, after it had been legitimately signed.
May the abrogation of the BA 64 by the Northern Rhodesia regime and reversion of Barotseland to 1964 allow these sovereign states live in harmony, and pursue their own futures. Lukupa Mulena kuli abuluke sichaba sa Malozi. Barotseland Free State, ki nako shangwe!