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