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Barotseland Agreement 1964, Validity and Legal Definition
The issue of Barotseland is a legal matter and must be treated as such
Legal Opinion by Nosiku Kawanambulu
Barotseland Agreement 1964, its validity and Legal definition
COMMENTARY
In order to understand and appreciate what the people of Barotseland are going through it may be important to look at the total picture of history and confluence of Barotse emancipation in the context of Southern Africa and imperialism. It appears that Lewanika tried very hard to secure for his Kingdom the necessary protection first with the British South African Company (BSAC) and later with Britain without much success. It turned out that what Lewanika really needed was a protectorate with British Mornachy. That would not be attained until 37 years after his death.
As can be noted from various historical records the Kingdom of Barotseland was one of very few that stroke protectorate concession deal with Britain without annexation. It was a voluntary decision or choice. In other words King Lewanika had a picture of what he was looking for. That was expressed as far back as 1905. He wanted status similar to that of Becchuanaland. In fact Lewanika consulted with Khama of present day Botswana on several occasions. Having been accorded status of an honorary Vice president of Pan African Association on his way from UK in Cape town, South Africa, he commanded respect among the imperialists. This is the reason why when he said; "My territory extends as far as Katanga" the French stopped encroaching into Zambia, and the Portuguese stopped grabbing North Western province, and the Germans left that country is occupied by Lewanika. If the people of Copper-belt appreciate being Zambians, they owe it to Lewanika. But all he gets is Lewanika this, Lewanika that. He stole Lamba mineral royalties. I don't know how much royalties the Lamba chiefs have gotten since Copper-belt was surrendered to Northern Rhodesia and now Zambia.
Barotseland started demanding for independence before Zambia was born. The British had special interests that prompted them to look at that move as an economic challenge. But what the Barotse needed was freedom. It was understood when Barotseland surrendered Copper-belt to Northern Rhodesia and continued to seek independence, the British felt no other economy in Barotseland would sustain a nation, which was a miscalculation, because Barotseland's economy did not just depend on copper. There was timber, fish, agricultural products and bonded labor. All this constituted the vibrant economy of Barotseland. Therefore, it may not even be true to suggest that the funds incorporated in the Zambian treasury after independence were sorely from mineral royalties. The royalties were not enough to sustain the running of a nation. It was just a personal allowance to the King.
But the government of Zambia through abrogation of the Barotseland Agreement 1964 has legal queries to answer to the United Nations through International Court of Arbitration should the Barotse Royal Establishment so desire. When Zambia made changes to the Agreement in question that ruptured the unity and melted the glue of unitary statehood. In other words that single political maneuver legally dismantled one Zambia one Nation. Without a legitimate agreement between Northern Rhodesia and Barotseland to commence on October 24, 1964, so that the treaties are replaced and the British obligation transferred to Zambian government unitary state, Barotseland is legally out of the picture. It is only a political fad that can only exist until the people of Barotseland wake up and demand their rights in court of law. This is the reason why the freedom of Barotseland is not necessary to fight over. Barotseland freely joined Zambia and was freely kicked out by the abrogation of the Barotseland Agreement 1964.
Zambia cannot eat the pie of Signing the agreement and have the pie of abrogating it and continue to keep Barotseland in perpetuity. There are consequences for signing and then flip flop on the issue. It seems this is the problem we are facing. Perhaps as we deal with the issue of Barotseland we should not limit our scope of arriving at the solution. Let us be open minded and move out of the box. Peace may not only be achieved by agreement. Sometimes it may be better to disagree on an issue in order to agree to part ways peacefully than agree all the way and agree to fight.
The Barotseland Agreement of 18th May 1964
Rodger M.A. Chongwe SC
October 28, 2010
In an effort to bring the King of Barotseland to the table and facilitate the fusion of the Protectorate of Northern Rhodesia with the protectorate of Barotseland to form Zambia the colonial power through the colonial secretary Sir Duncan Sandys crafted an agreement which was sold to the Prime Minister of Northern Rhodesia and Sir Mwanawina Lewanika of Barotseland. This was during the last stages of the constitutional conference at Malborough House in London. It would appear few of the delegates at this conference claim to be aware of this side meeting, which was taking place simultaneously with the main conference.
The representatives of the Barotseland Protectorate argued with the colonial power regarding their own treaty with the British Government that led to the creation of the Protectorate of Barotseland. The nationalists wanted Barotseland to join Northern Rhodesia in its independence as the two protectorates were to all intents and purposes part of one country. People who were prominent in the independence struggle came from Barotseland as well as Northern Rhodesia. However the King of Barotseland did not want to sleep on the rights of his people.
Subsequently Sir Mwanawina Lewanika agreed that Barotseland Protectorate should join with the Protectorate of Northern Rhodesia to form the nation of Zambia on condition that the Barotseland protectorate retained its local autonomous status enjoyed during her status as a protectorate. Barotseland was to surrender those powers that hitherto had been exercised by the imperial power of Britain over Barotseland to the new State of Zambia.
The details of the powers to be retained by the Barotseland Royal Establishment were spelt out in the agreement.
Sir Duncan Sandys on behalf of Her Majesty’s Government, Sir Mwanawina Lewanika on behalf of the Barotseland Royal Establishment and Dr. Kenneth Kaunda Prime Minister of Northern Rhodesia, signed the Agreement for fusion on the 18th May 1964.
This agreement paved the way for the creation of the State of Zambia on the 24th October 1964.
In 1969 there were constitutional amendments to the 1964 Constitution and part of those amendments were aimed at bringing local government in Barotseland in line with other provinces. Barotseland was renamed Western Province. The King of Barotseland now only called the Litunga of Barotseland lost some of his powers including his treasury and this was in line with what took place elsewhere in the country. The agreement of 1964 was repealed by legislative fiat without any discussion or consensus from the parties.
The above then is the genesis of our constitutional problems emanating from the Western Province. They are problems that have been left to fester for a very long time. Each successive government has skirted around the problem. No real effort has been made by any of our previous governments to sit down with the traditional leaders of the Western Province to settle the issues once and for all. These issues will not go away unless there is a will by all of us in Zambia to seriously address them through our constitution. After all, at the core of the demands is decentralization. Which politician in Zambian would not agree of the need for decentralization and therefore devolution of more power from Lusaka to the provinces?
In regard to Zambians who come from the other provinces, who do not wish to understand that the Western Province has a legitimate claim to be part of Zambia on a different basis to the rest of us. We cannot in good conscience try to gloss over and arrogantly dismiss this fact, as has been the practice in the past. We as the rest of Zambia made a deal with the Barotse Kingdom. We must now in all good faith acknowledge that we did not keep the agreement. Our partners in the broken agreement have clearly not been happy with our behavior for a long while. Let’s come together and put it right in our time. We can take advantage of the constitutional debate now in place in the country and try to settle once and for all this very important national issue for the good of our country.
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