WHICH CLAUSE IN THE BAROTSELAND AGREEMENT 1964 PROVIDES FOR SECESSION?
Author: SIBETA MUNDIA, Barotseland Post | 22nd January, 2024.
Zambia’s ruling United Party for National Development (UPND) Consultant, Mark Simuwe, recently raised the question above. Since we have encountered this question many times before, we think it deserves a public response.
Before we tackle Mark’s question, however, we wish to raise a counter question, which we hope Mark will also answer. Our question is, WHICH CLAUSE IN THE BAROTSELAND AGREEMENT 1964 PROVIDES THE ABROGATION OR ANNULMENT OF THE AGREEMENT?
We ask because CLAUSE 8 of the Barotseland Agreement of 1964 specifically instructs the Zambian Government never to allow the enactment of LAWS that will contravene the agreement, cautioning further that all future laws, including the national constitution, must never conflict with the 1964 Barotseland Agreement.
CLAUSE 8 reads on the implementation of the Barotseland Agreement 1964:
“The Government of the Republic of Zambia shall take such steps as may be necessary to ensure that the laws for the time being in force in the Republic are not INCONSISTENT with the provisions of this Agreement.” END.
With that clause in the agreement, we seriously wish to know where the Zambian government got the impetus and temerity to purport to ANNUL the Barotseland Agreement 1964 through the so-called enactment of various laws!
Mark further claims that ‘the Barotseland agreement of 1964 is a binding agreement under civil jurisdiction to the extent of the constitution of Zambia which does not recognize it’. But, we ask, why would the constitution of the Republic not recognize the agreement upon which it was founded?
Prominent Zambian Constitutional Lawyer, Dr. Ludwig Sanday Sondashi (Bachelor of Laws LLB, Masters of Law LLM, and Ph.D. in Philosophy in Law acquired at Warwick University, England) has extensively submitted publicly that “THE BAROTSELAND AGREEMENT 1964 IS SUPERIOR TO THE CONSTITUTION OF ZAMBIA”, and we, like many others, agree with this assertion because it is legally sound!
SO, WHY SECEDE OR BREAKAWAY WHEN THERE IS NO CLAUSE PROVIDING FOR IT IN THE 1964 BAROTSELAND AGREEMENT?
To answer this question, we will use the findings and conclusions of the National Constitution Commission, NCC, which was established by the Republic of Zambia on 17th April 2003.
In their report issued in June of the same year, and in their Executive Summary, the Commission reported the following findings and conclusions on the 1964 Barotseland agreement. Capitalization has been added, in some cases, by us for emphasis.
The Commission Report reads:
1.1 INTENT AND EVOLUTION OF THE AGREEMENT
The Barotseland Agreement 1964 is the successor treaty to the treaties subsisting between the British Crown and the Barotse Monarchy relating to the Protection status of Barotseland, prior to independence. The Agreements incorporates the territory and people of former Protectorate of Barotseland into the nation of Zambia, and transfers all obligations and rights of the British Crown with respect to Barotseland to the Government of Zambia, effective 24th October, 1964. The AUTHORITY of the Zambian Government over Barotseland is, therefore, DERIVED from and LEGITIMIZED by the Agreement. The Agreement further provides TERMS and CONDITIONS on which governance in Barotseland is to be conducted by both the ZAMBIAN GOVERNMENT and the BAROTSE GOVERNMENT.
The UNITARY nature of the Zambian State is derived from the fact that the two CONSTITUENT TERRITORIES, i.e. the Protectorate of Barotseland and the Protectorate of Northern Rhodesia signed this treaty to become one independent Sovereign Republic. This principle is enshrined in paragraph 2 and 3 of the Preamble to the Agreement. This principle was further reflected in the LEGAL INSTRUMENT that gave birth to the new Republic, that is. Article 125 (1) of NORTHERN RHODESIA INDEPENDENCE ORDER 1964 which promulgated the independence CONSTITUTION, and section 1 of the ZAMBIAN INDEPENDENCE ACT OF 1964. Both these legal provisions arose as a direct consequence of the Agreement 1964.
1.2 CONCLUSION
Barotseland is a part of Zambia and remains so ONLY as a CONSEQUENCE of the BAROTSELAND AGREEMENT 1964. Failure to implement the Agreement amounts to FRUSTRATION OF THE TREATY which gives rise to QUESTIONS ABOUT THE LEGITIMACY of the Zambian Government AUTHORITY OVER BAROTSELAND and JEOPARDIZES THE CONTINUED EXISTENCE of unitary state.
OUR FINAL TAKE
The NCC, which prepared the above report, comprised highly qualified professionals and eminent people of integrity, and some among them were the crème of Zambia’s legal minds. Our understanding of this report is that there is no Zambian leader, irrespective of rank, who can claim to have authority over Barotseland when the Agreement is not in force like the situation is currently.
Therefore, the Zambian Government would be guilty of breaking the unitary state of Zambia themselves, and not the Barotse activists, because one can’t TERMINATE an agreement and still claim rights enshrined in the terminated agreement.
For example, a couple that enters marriage, vowing to live together until death separates them, will have the Court’s endorsement – even without any ‘divorce clause’ in their union because the intention is to live together for life.
However, should irreconcilable differences arise in the marriage, or should the terms and conditions of the marriage break irretrievably, the same court that endorsed their happily-ever-after intentions will sanction their unfortunate divorce. No one would claim that separation cannot take place because there was no divorce clause in their union.
Separation, divorce, breakaway, or secession is inherently provided for in every union contract or covenant agreement, even where no separation clause is explicitly stated. Barotseland, therefore, has an inherent right to withdraw from the unitary state, even for no apparent reason, but more especially when the envisioned unity has broken down irreparably. In this case, however, the reprobate Zambian State has purportedly terminated the Barotseland Agreement 1964, but still demands the rights of unity contained in the agreement they claim to have terminated through their parliament!
Therefore, we appeal to sober-minded Zambians of right conscience to prevail over the Zambian government’s impunity. A good national constitution promotes the rights of weak minorities rather than suppressing them, and the Barotse people in Zambia have grossly suffered at the hands of the repressive Zambian State that torments them physically, economically, socially, psychologically, and in every way imaginable!
Mark Simuuwe Simon Mwewa Lane Television Emmanuel Mwamba Hakainde Hichilema, Phoenix FM Zambia , Kalemba , Zambian Watchdog , Koswe , Laura Miti , Brebner Changala , Human Rights Commission , UPND IMAGE BUILDERS , Diamond Tv Zambia Top Stories , Daily Revelation Newspaper , News Diggers
These are sound arguments. No fair-minded person would disagree. The Barotseland Agreement provides for recourse to the High Court of Zambia in the event of dissatisfaction with the conduct of either party in the application of the binding document.
The Man is dreaming. Sikota Wina and The Litunga Sold the birthright of Barotseland those are people they should be fighting.
Moreover let me ask a question ❓⁉️⁉️ If it’s not secession WHAT DO LOZI PEOPLE WANT?? …… They are just beating about the Bush…..!!
And what part of contract has Zambia breached? Ba maLozi batekubeja….. No problem here Sikota+ Litunga DUPED YOU GUYS.
There is no court in Zambia that will give those advancing succession of Barotseland their wishes of an independent Barotseland on a silver plate. Stop dreaming, otherwise you will wee wee in the bed.
This matter is better pursued in international courts. And will take many decades to conclude. The only winners will be the lawyers.
The best time to have dealt with this matter was the day KK coined the slogan “one Zambia, one nation”. You are 40 to 50 years late.
The document is well written. It has however not proven that they have been in his words brutalized mentally, physically and what what intentionally. Is he able to prove that other provinces have benefited more than barotse land? He has not addressed equally other issues such as how copperbelt became part of the barotse land? Such as the other tribes that are domicile in the kingdom don’t want to be ruled by this colonial document. That even them would want independence from them. Yes, the document does exist but we are told, he has not addressed it here, that a referendum (inherently too of agreements like his example of marriage) was held where it was agreed that Zambia will remain unitary. That western province would remain so and the King would remain so.
What has always puzzled me too is the silence from His royal highness the King on the matter. I have always been left with questions as to whether the King supports these people who are hell bent at breakaway. We have examples in south Sudan who fought tooth and nail for a separate state today no peace has ever been achieved. If you are that good, compete at national level than regional level. Decentralization will somehow solve this. Zambia is one people
You that was a marriage certificate between northern Rhodesia and barotseland, which gave birth to Zambia. So if the marriage can’t work you can divorce but the child remain a one you can’t split.
Why is Prof Michelo Hansungule and Baron Muna Ndulo silent on this issue?
Answer: They are the only learned constitutional legal minds! How can a mere Agreement in the Constitution of Northern Rhodesia override another Constitution (The Constitution of the Republic of Zambia)?. Are you familiar with the concepts of implied repeal and “no Parliament can bind its successor”? Dr Sondashi’s assertion is extremely erroneous!!!
Barotse yevevni nkani yamu kachasu … Kikikiki
Why do they want to trouble us with dead issues?
Let them blame their own who signed a very poorly written agreement!
Us we only Know One Zambia One indivisible Nation with Western province as part of it!
Moreover, the parties to the agreement are all dead making this whole thing an academic exercise!
Argue all you want but iyi nkani isilila mu kachasu!
The Barotse agreement is not an internal document. This a agreement was facilities for by the British government to release themselves from protection that they guaranteed the Lozi people hence handing that responsibility to new Zambian government. Of which the Barotse land became part of. Such actions can only be done through an agreement. It is from this process that the Zambian constitution states that Zambia is unitary state.
Please don’t fall for division which the colonist used. We are one Zambia one nation.
We are past it, where Colonial documents/machinations like the barotse agreement should govern us. The British protectorates where nothing but deals made all over the world by the colonial masters with those indigenous people “sellouts or snitches” to protect them from other indigenous people who did not sell out. Therefore these protectorates were stooges/puppets of the colonial powers to help govern/suppress other africans and eventually perpetuate colonialism. So those who even think being a protectorate was an achievement should be ashamed of themselves. ASK the likes of Malema, PLO Lumumba or true pan africanists.
This issue needs to be approached with sober minds on either side. Those in support of the Barotseland Agreement feel cheated by successive Zambian governments. We cannot wish them away.
We need to gather the political will to dialogue and resolve this issue amicably. Those in support of the Agreement must not feel that they will have it easy if they were to have their way. There are other ethnic groupings within Barotseland who would not want to continue being part of Barotseland and these cannot be ignored. What is good for the goose is good for the gander.
In all this, let us be mindful that the British have authored most of the trouble spots in the world because of their colonial past. Talk of India/Pakistan, Palestinian/Israeli conflict, closer to home, Zimbabwe/Rhodesia and now the Barotseland issue.
There is no need to draw our swords. Let us dialogue. The Barotseland disagreement cannot be ignored.
We should not negotiate with puppets or stooges who sold out to colonialism and today they want to lecture us about acknowledging shady deals done by the colonials. The barotse agreement was a misguided colonial agreement done only with their greedy puppets. That’s why mbundas, nkoyas, luvales etc were not consulted. Abash to criminal colonial agreements.