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Barotseland Legal Position on the 18th MAY 1964 defunct agreement and creation of Zambia – Part ONE

18 May 2017
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LEFT - Kenneth Kaunda returns from signing the Barotseland Agreement 1964. RIGHT - King Mwanawina III of Barotseland and the United Kingdom (UK) Prime Minister (1957 to 1963) Hon. Maurice Harold Macmillan

 

THE BAROTSELAND AGREEMENT 1964

The agreement was concluded and duly signed on 18th May 1964 at the Commonwealth Relations office in London between the British Government, the Government of Northern Rhodesia and The Litunga of Barotseland regarding the position of Barotseland within independent Northern Rhodesia.

It is the Royal Barotseland Government’s position that the undisputed legal basis for the creation of modern Zambia, formed by Barotseland and the rest of Northern Rhodesia, was the same Barotseland Agreement of 18th May, 1964, which was signed by Dr. Kenneth David Kaunda, the Prime Minister of Northern Rhodesia, on behalf of the Government of Northern Rhodesia, by Sir Mwanawina Lewanika III, the Litunga of Barotseland, on behalf of himself, his Council and the Chiefs and People of Barotseland, and by the Rt. Hon. Duncan Sandys, the Secretary of State for Commonwealth Relations and for the Colonies, on behalf of the Government of the United Kingdom.

A copy of the Barotseland Agreement can be found here: http://barotselandpost.com/images/important_barotse_documents/The-Barotseland-Agreement-1964.pdf

The agreement consists of just 5 pages, including an Annex. The Initial Recitals, all commencing with the standard word “Where as”, set the tone and intention of the Agreement, viz.

(i) Northern Rhodesia shall become an independent sovereign Republic, the Republic of Zambia;

(ii) It is the wish of Northern Rhodesia and of Barotseland that Northern Rhodesia shall proceed to independence as one country and all its peoples shall be one nation;

(iii) As there are a number of treaties and other agreements between the United Kingdom and the Litunga of Barotseland which will terminate on independence and any responsibility of the United Kingdom for the government of Northern Rhodesia. Including Barotseland, shall thereupon cease, Northern Rhodesia and Barotseland wish to enter into arrangements concerning the position of Barotseland as part of the Republic of Zambia to take the place of those treaties and other agreements.

The scene having thus been set, the Agreement in its body goes on to make various specific provisions for Barotseland as part of the Republic of Zambia. The most important of these are:

(a) The Litunga is recognised as the principal local authority for the government and administration of Barotseland;

(b) The Litunga is empowered to make laws in respect of a wide range of issues including matters relating to the local government, land, fishing, local taxation and matters relating thereto, control of hunting, game preservation and the Treasury, which was then called the Barotse Native Treasury;

(c) The Litunga and his Council shall continue to have the powers previously enjoyed by them in respect of land matters under customary law and practice. The then called Barotse Native Courts shall have exclusive original jurisdiction in respect of land matters in Barotseland to the extent that they are covered by Barotseland customary law and no appeal shall lie to the High Court of Zambia from any decision on such a matter except with the consent of the court then known as Saa - Siikulu Kuta; [misspelt in the Agreement itself];

(d) The Government of Zambia is entrusted with the obligation to provide financial support for the administration and economic development of Barotseland and ensure that Barotseland is treated fairly and equitably in relation to the rest of Zambia;

(e) The Government of Zambia is placed under obligation to take the necessary steps to ensure that the laws of Zambia are consistent with the Agreement;

(f) The Agreement provides that the Constitution of Zambia shall include the provisions agreed upon at the recent Constitutional Conference in relation to the protection of human rights and fundamental freedoms of the individual, the judiciary and the public service and those provisions shall have full force and effect in Barotseland.

(g) Finally in the Annex to the Agreement there is provision for the marrying of the customary powers and jurisdiction in land matters of the Litunga and his establishment with the administrative and documentary procedures of the Zambia public service.

The Barotseland Agreement was presented by the Rt. Hon. Secretary of State, Duncan Sandys, to the United Kingdom Parliament within a day or two of its signature and was approved by both Houses. The presentation noted an undertaking by the Prime Minister of Northern Rhodesia that the Agreement would be reaffirmed by the Government of Northern Rhodesia at Independence.

Looking at the Barotseland Agreement as a whole it is clear that it brings into effect an arrangement whereby two entities which had not previously had a great deal in common with one another, apart from mere physical propinquity, were required, and indeed, seemingly at least from the conduct of all three sides at the time, were willing to come together and co-exist. The basis for this co-existence in the case of Barotseland was the terms of the Agreement itself. The duties in respect of Barotseland previously falling on the United Kingdom under the Protectorate were essentially assumed by the Government of independent Zambia.

The forgoing is Part ONE of a three part legal presentation by the Department of Justice and Legal Affairs, Royal Barotseland Government (RBG) in commemoration of the 18th May signing of the now Defunct Barotseland Agreement 1964. Read Part TWO and Part THREE.

Legal Editor, Barotseland Post

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