The legal claim was made in a sworn affidavit by the Attorney General (AG) of the Republic of Zambia when then Litunga of Barotseland, Ilute Yeta IV, attempted to sue the Zambian government for failing to honor the terms of the Barotseland Agreement 1964.
However, in that affidavit submitted in opposition of originating summons at the high court, the Zambian government claimed that the Litunga and Lozi people could no longer claim any special treatment under the Zambian constitution because every law that had previously given them any such exclusive rights had been effectively revoked, stating also that the ‘long passage of time’ had made matters arising out of the Barotseland agreement of 1964 statute stale.
This government position, however, is a rebuff-able legal pre-supposition considering that the Barotseland Agreement of 1964 could not be unilaterally revoked by any progressive legislation because by nature, the agreement was meant to be superior to all future constitutions of Zambia as stated in ARTICLE 8 of the Barotseland Agreement 1964:
“The Government of the Republic of Zambia shall take such steps as is necessary to ensure that the laws for the time being in force in the Republic are not inconsistent with the provisions of this agreement”.
Article 8 of the Barotseland Agreement 1964 essentially means that there is no way any Zambian constitutional provisions would ever claim to annul or revoke the provisions of the 1964 agreement.
The King of Barotseland in this legal pursuit wished to seek interpretation of the 1964 agreement’s Article 4, which gave exclusive powers to the King and his Council (BNC) to govern Barotseland without any hindrance from the Lusaka government, and Article 8 above which had, apparently, been violated by successive Zambian governments.
It is also useful to consider that a state party to an international treaty, covenant or agreement, could not possibly invoke domestic or national law reforms to purportedly absolve itself from performing their own obligations in such international treaties.
The Zambian government is clearly under the legal illusion that once the national laws had been unilaterally amended to abrogate the 1964 union agreement, the Litunga and the Lozi people could no longer have any claim over their supposed rights, while expecting the Lozi to keep the union terms.
However, the more factual legal interpretation would be that once a union treaty or union agreement had ceased, and so accepted by all parties involved, then no party to the agreement would be expected to perform any obligations or claim any benefits under the defunct treaty, resulting in the total collapse of the union. Parties would naturally revert to their pre-agreement and pre-union status, with the offended party having the right to demand reparations for any losses caused by such irreparable breaches.
Therefore, it would actually appear that the Zambian government’s ‘best’ legal defense so far is actually a ‘validation’ of the very claim of the Barotse people that they can no longer be expected to be Zambians in the absence of the pre-independence Barotseland Agreement of 1964.
In short, Barotseland and its people were to be part of Zambia only through the Barotseland Agreement 1964. Abrogating the 1964 agreement raises questions about the legitimacy of the Zambian Government’s authority over Barotseland.
What is even worse now is that, in March 2012, Barotseland finally officially accepted the abrogation of the 1964 agreement by the Zambian government - meaning Zambia is now technically an occupying ‘force’ in Barotseland that should actually be punished by the international community!
In fact, it would appear that Zambia’s lack of real legal defense against the Barotse claim of self-determination is what actually makes the Zambian state rely only on archaic suppressive methods in response to every peaceful demand made by the Lozi people.
According to the Zambian government, through the Attorney General’s 1991 sworn ‘AFFIDAVIT IN OPPOSITION OF ORIGINATING SUMMONS’ at the High Court of Zambia, the following are all the legal provisions that were either amended or revoked to try and defraud the Litunga and the Lozi people out of what could have been their constitutional entitlements in Zambia.
The AFFIDAVIT can also be found at http://barotselandpost.com/images/important_barotse_documents/1991_judgement_between_barotseland_vs_zambia_in_high_court.pdf
The sworn AFFIDAVIT is here published for public records only:
IN THE HIGH COURT FOR ZAMBIA
HELD AT LUSAKA
In the matter of
The Barotseland Agreement 1964
And in the INTERPRETATION OF ARTICLES 4 & 8
Of the said Agreement
THE LITUNGA OF THE WESTERN PROVINCE PLAINTIFF
THE ATTORNEY GENERAL FOR THE REPUBLIC
OF ZAMBIA DEFENDANT
These are the documents marked, “M.C.1”, “M.C.2”, “M.C.3”, “M.C.4”, M.C.5”, “M.C.6”, “M.C.7, “M.C.8”, “M.C.9”, “M.C.10”, “M.C.11” and “M.C.12”, referred to in the affidavit of Mwelwa Chibesakunda sworn before me on the 4th day of December, 1991.
COMMISSIONER FOR OATH
IN THE HIGH COURT OF ZAMBIA
HELD AT LUSAKA
In the matter of
THE BAROTSELAND AGREEMENT 1964
And in the matter of
THE INTERPRETATION OF ARTICLES 4 & 8
OF THE SAID AGREEMENT
THE LITUNGA OF THE WESTERN PROVINCE PLAINTIFF
THE ATTORNEY-GENERAL FOR THE REPUBLIC
OF ZAMBIA DEFENDANT
AFFIDAVIT IN OPPOSITION OF ORIGINATING SUMMONS
I, Mwelwa Chibesakunda of Lusaka in the Republic of Zambia being duly sworn do hereby make oath and say as follows:
- That, my full names are as above appears.
- That I am a Zambian resident at No. 4 Ngwezi Road, Roma, Lusaka.
- That I am the State Advocate seized with the conduct of this matter on behalf of the defendant and I am duly authorized to swear this my Affidavit from facts and information personally known to me which came to me by virtue of such conduct.
- That on the 18th May, 1964, the former president of the Republic of Zambia Kenneth David Kaunda on behalf of the Government of the Republic of Zambia, Sir Mwanawina Lewanika III Litunga of then Barotseland acting on his own behalf, his heirs and successors, his council and the chiefs and people of Barotseland and Duncan Sandys M.P., Principal Secretary of State for Commonwealth Relations and the colonies on behalf of her Majesty the Queen of England signed an Agreement otherwise known as the Barotseland Agreement 1964.
- That the said agreement’s purpose was to consolidate and perpetrate the existing treaties and agreements subsisting at the time between her Majesty and the Litunga of Barotseland.
- That the Northern Rhodesia becoming an independent state, and all the treaties and agreements terminating, the said Barotseland Agreement initially between her Majesty the Queen and the Litunga of Barotseland subsist and continue in effect.
- That under Article 4 of the agreement, the Litunga and his council were accorded extensive governing power, over Barotseland.
- That consequently such jurisdiction over the Western Province then Barotseland was curtailed by Act No. 47 of 1970 Western Province (land and miscellaneous provisions), which by virtue of its enactment abrogated the Barotseland Agreement in its entirety. The document now produced and shown to me marked “M.C.1” is a copy of the said act.
- That Article 4 (3) which empowered the Litunga and his Council to make laws for Barotseland was thus abrogated by the following amendments to laws:
- Lands and deeds registry ordinance Cap. 84 was amended by deleting section 5 subsection (2) paragraph (d). The document produced and now shown to me marked “M.C.2” is a copy of the said Cap. 84 and the amended Cap 287.
- The Forests Ordinance Cap 105 which defined “state land” as all lands in Zambia, except land vested in the Litunga of Barotseland, was amended to include all land in Zambia in Sections 5, 7, 14, and 15 were amended as evidenced in defendant Exhibit “M.C.1”. Produced and shown to me marked “M.C.3” are copies of Cap 105 and amended Cap 311.
- That plumage Birds Protection Ordinance Cap 117 was amended in section 3 by the deletion of subsection (4) produced and shown to me marked “M.C.4” are copies of Cap 117 and amended Cap 310.
- The Town and Country Planning Ordinance Cap 123 was amended in Section 3 by the deletion of subsection (5). Produced and shown to me marked “M.C.5” are copies of Cap 123 and amended Cap 475.
- The Liquor Licensing Ordinance Cap 197 was amended by repealing Section 75 produced and shown to me marked “M.C.6” are copies of Cap 197 and amended Cap 429.
- The Water Ordinance Cap 231 was amended in Section 3 by the deletion of paragraph (a), produced and shown to me marked “M.C.7” are copies of Cap 231 and amended Cap 312.
- The Natural Resources Ordinance Cap 239 was amended by repealing Section 59, produced and shown to me marked “M.C.8” are copies of Cap 239 and amended 315.
- The Fauna Conservation Ordinance Cap 241 was amended by repealing Section 47 and 43 as evidenced by “M.C.1 at page 639, produced and shown to me, marked “M.C.9” are copies of Cap 241.
- The Fish Conservation Ordinance Cap 263 was amended by repealing Section 25 and 26, produced and shown to me marked “M.C.10” are copies of Cap 263 and amended Cap 314.
- The Local Court Act No. 20 of 1966 was amended by repealing Section 56 (a), produced and shown to me marked “M.C.11” are copies of Act No. 20 of 1906 and amended Cap 54.
- The Zambia (state lands and reserves) Orders 1928 to 1984 was amended in Article 2 as evidenced by Exhibit “M.C.1” at page 639, 640 and 641, produced and shown to me marked “M.C.12” are copies of Zambia (state lands and reserves) orders 1928 to 1964 prior to amendment.
- That in the said Act No. 47 of 1970 in essence abrogated all the powers of the Litunga to govern Barotseland independently in relation to Article 4 and 5 as evinced in all the afore-mentioned laws amended accordingly.
- That the Zambia Independence Act 1964 and the Independence Order 1964 Appendix 1, accommodated the terms of the said Barotseland Agreement, but consequently to the amendments to the respective laws by virtue of Act No. 47 of 1970, the 1973 constitution repealed and revokes the 1964 constitution as they formed part of the laws.
- That Cap British Acts Extension laws of Zambia extends the British limitation Act of 1939 in Section 2 schedule to Zambia.
- That any civil action that arises and originates from the said agreement is by virtue of the limitation Act 1939 time barred, in accordance with section 3 of the said Act, which states that no cause be brought after the expiration of six years from the date on which the cause of action accrued.
- That the said agreement on the promise of the afore stated reasons was abrogated in 1910 upon amendment of the respective laws.
- That subsequently no cause of action can ensure after the stipulated six years stated in the limitation Act and therefore that action is misconceived.
- That the facts deposed to herein are true to the best of my knowledge, belief and information.
Sworn by the said )
Mwelwa Chibesakunda at ) _______________________
Lusaka aforesaid this ) Despondent Signature
4th day of December, )
1991 Before Me ): _______________________
Commissioner for Oaths