"The true position of Barotseland within Zambia is that, Barotseland wants total independence granted through the 2012 BNC; to actualize it, it will go ahead to sue Zambia in the International Court of Justice just to lay claim and charges against Zambia, so that Zambia can now pay for all the misfortune it has caused on Barotseland in the court of law. If Zambia feels it has a legal claim over Barotseland, then let it advance it." - Barotseland International Lawyers
The interim Barotseland government engaged an international legal team to help consolidate a legal position for Barotseland upon which an official legal stand point would be established, which would be used to deal with the matter of Barotseland versus Zambia, going forward. After a thorough and extensive interrogation of the matter, the legal team of international lawyers has concluded that Barotseland has a solid case, and will, therefore, go ahead to sue Zambia in the International Court of Justice, just to lay claim and charges against Zambia, so that Zambia can now pay for all the misfortune it has caused on Barotseland in the court of law.
Here below is the lawyers’ Legal Opinion in its entirety, which will form the basis upon which Barotseland is now going to proceed with this matter at the International Court of Justice.
MARRIAGE OF CONVENIENCE DISSOLVED: ASSERTION OF THE RIGHT TO SELF DETERMINATION BY THE PEOPLE OF BAROTSELAND
The summative intent of this paper is to advise the people of Barotseland on the legal connotations of their coexistence with and within Zambia. We assess the legal implication of the Barotseland Agreement of 1964 as well as the means through which Barotseland can best find justice. This entails considerations of principles of the enforcement of treaties; the right to self-determination, principles of statehood and, by extension, the notion of secession. The paper draws extensively from principles of international law; decisions of the International Court of Justice and other Courts in dealing with similar matters and indeed practical examples of solutions reached elsewhere.
The papers also gives recommendations to the Barotseland people as to how they ought to best proceed in their claim to self-determination in order to ensure that the claim is a successful and sustainable one.
It is essential to note from the onset that we do not propose to offer a panacea to the situation between Barotseland and Zambia. What we however seek to do is to enlighten on the international legal framework of the relationship and objectively elucidate on the available options and modes of their implementation. We trust that you shall find this opinion beneficial and it will go some distance in assisting you towards an amicable and expeditious resolution of your situation.
SAME SIDES OF A COIN: A PREAMBLE OF MUTUAL APPRECIATION OF THE SITUATION
It is indeed irrefutable that the relationship between Zambia and Barotseland has never seen better days. Promises and undertakings were made and were not being fulfilled. The Barotseland people find themselves short changed by the Zambian Government and their efforts of amicable dialogue have had less than satisfactory outcomes and, to a large extent, have not been accorded the sincerity they crave. This has obviously left them in a predicament and hence inclined to pursue other avenues to come out of a mess. Self-determination presents itself as one of the options. Be that as it may, it is essential for both parties to appreciate the situation for what it is and understand the respective positions of each other. It has been emphasized that self-determination should not be regarded as antagonistic to the State or situation in which a people finds itself. However, it ought to properly be regarded as a process by which the parties adjust and re-adjust their relationship, ideally for mutual benefit. This is the context within which the respective grievances of the parties must be addressed and the spirit with which both parties must approach this matter. As much as self-determination has being hailed as a process through which conflicts can be resolved and peace and security maintained, it is to be emphasized that it is a delicate concept and if it is not appropriately implemented and managed it can have disastrous and destructive outcomes. Barotseland and the Zambian Government must therefore consider each other as equals, and not as a horse and rider. The parties also ought to conduct this matter with utmost respect for each other and in absolute good faith.
THE BAROTSELAND AGREEMENT OF 1964
The Barotseland Agreement of 1964 is a central component to the present status quo of Barotseland. Consequently, it is necessary to appreciate the historical background against which the agreement was reached. This would assist in understating the respective intentions of both parties and the objectives they sought to achieve through it. More importantly, it clarifies the legal obligations that were intended flow from the agreement with a view of determining the extent of compliance or otherwise.
Numerous questions present themselves for determination;
(a) If Barotseland existed separately as a “recognised” independent state, why was it necessary to have the Agreement of 1964 which, although it gives Barotseland some autonomy, subsumes it within Zambia?
(b) The Agreement at Page 3 contains an undertaking by the then Prime Minister of Northern Rhodesia that the Agreement would be reaffirmed by the Government of Zambia at Independence...Was any such reaffirmation done?
(c) What exactly transpired on the 26th and 27th March 2012? Did it amount to a unilateral declaration of Independence and if so, has any country subsequently recognized Barotseland as a nation?
As regards the contents of the agreement, the following are crucial to note;
(a) This agreement may be cited as the Barotseland Agreement 1964 and shall come into force on the day on which Northern Rhodesia, including Barotseland, becomes the independent sovereign Republic of Zambia.
(b) The Agreement is to take the place of the treaties and other agreements hitherto subsisting between Her Majesty the Queen and The Litunga of Barotseland; this means that Barotseland became a colony or Protectorate of Zambia.
(c) The Litunga of Barotseland is recognized as the principal local authority for the Government and Administration of Barotseland
(d) The Litunga of Barotseland is empowered to make laws in respect of a wide range of issues including matters relating to the local government, land, local taxation and matters relating thereto, control of hunting, game preservation and the Barotse Native Treasury.
(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 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.
Having regard to the above, the inescapable position is that the Agreement of 1964 constituted a Treaty, worthy of enforcement of such. As will be shown hereunder, the Government of Zambia held a different view and indeed had other sinister plans.
TERMINATION OF THE AGREEMENT OF 1964
Reading the Barotseland Agreement within its appropriate historical context, one gets the impression that it was concluded in the best of spirits and with the intention of a harmonious and beneficial coexistence. If it was carried forth with that particular spirit the present situation would not exist.
Quite regrettably, before the ink on the agreement had even dried the Government of Zambia embarked on a systematic path to defeat the agreement and render it not even worth the paper it was written on. Mr. Kaunda appointed a committee to work on the Agreement, and to circumvent the Barotzis. All legislations that followed were hinged on the recommendations of this committee.
In 1965, the Local Government Act repealed the Barotse Native Authority Ordinance and abolished the National Council. This divested the Litunga of Barotseland of the power he had as the local authority for the Government and Administration of Barotseland. He was therefore rendered redundant and left as a ceremonial figure to the people of Barotseland.
In 1969 through Constitution (Amendment) No.5 it was decreed that “The Barotseland Agreement 1964 shall cease to have effect and all rights (whether vested or otherwise), liabilities therein shall lapse”. This was a deliberate and calculated move that dealt a death blow to the agreement in its infant stage. One can only conclude that even at the time the Government of Zambia entered into the agreement they had no intentions to be bound thereby and did so perhaps only to appease the British Government. In the same year, the Government of Zambia passed the Mines and Minerals Act which divested the Litunga of Barotseland of the Mineral Rights previously reserved in the agreements with the British South African Company.
In the exercise of these new powers, the President of the Republic of Zambia compulsorily acquired assets from Barotseland including Treasury of Seventy Eight Million Five Hundred Thousand Pounds (£78,500,000.00) forcibly acquired from the Barotse Native Authority and Fund.
A year later in 1970, the Government of Zambia passed the Constitutional (Amendment) viz compulsory land acquisition Act specifically for Barotseland was enacted.
In its continued efforts to obliterate the existence of Barotseland, in 1969 the Government of Zambia changed the name of “Barotseland” to Western Province. It is indeed indicative of the lackadaisical approach that the Government of Zambia had towards a matter of prime importance issue.
The approach of the Government of Zambia reeks of bad faith and a total disregard of the basis of relationship and of the rights of the people of Barotseland.
Whereas the people of Barotseland had essentially never been colonized, through the defiance acts by the Government of Zambia they find themselves as pariahs on their own land. This is a grave injustice perpetuated by the very people from whom they expected, and indeed had been assured, brotherhood and co-existence. This is an even worse form of colonization.
From a legal perspective, the question arises, the Agreement in question created an enforceable treaty which demanded compliance and recognition by both parties. It was therefore not open to the Government of Zambia to simply unilaterally “cancel” the agreement by way of Constitutional Amendment. It would indeed be chaotic if it was simply within the sole prerogative of a State to escape its treaty obligations through amendment of its domestic laws.
Moreover, the Zambian Government turned a blind eye to Article 26 of the Convention on the Law of Treaties which provides that every treaty is binding upon the parties to it, and must be performed by them in good faith. Clearly the actions of the Government of Zambia as enumerated above were in extreme bad faith and a clear violation of international law. Barotseland is therefore well within its rights to demand that justice has to prevail.
It is also reported that the Government of Zambia has resorted to deplorable tactics of arresting the people of Barotseland who seek to advocate for self-determination and charging them with treason. Embarrassingly, even young children (pupils) have also fallen victims to these charges of treason. This is a clear manifestation that the Government of Zambia intends to suppress and persecute the people of Barotseland for their attempts to assert self-determination. This victimisation is intended to strike fear into the hearts of the people of Barotseland and dissuade them from voicing out their concerns and having their grievances attended to. Needless to say this is a clear violation of human rights and international law and Zambia as a state which is signatory to many binding legal instruments ought to know better and conduct itself accordingly. That the Government of Zambia is willing to sink to such lows is deplorable.
THE EXISTENCE OF BAROTSELAND AS AN INDEPENDENT STATE PRIOR TO 1964
One central question that ought to be addressed in order to fully appreciate the issues at hand is, what was the legal status of Barotseland prior to the Agreement of 1964.
Historical evidence that exists strongly support the contention that Barotseland existed as an independent state recognised as such, at least loosely, at the international level. These include the fact that in the 1800’s Barotseland, represented by King Lewanika concluded into various concessions with the British South Africa Company. It is also recorded that in 1889 King Lewanika applied to the British for them to give Barotseland a Protectorate status. Such was ultimately granted in 1898. Moreover, the 1911 “Constitution” of Northern Rhodesia and all subsequent Constitutions prior to 1964 recognised the existence of Barotse Nation as a separate nation from Northern Rhodesia. Such separate existence was also recognised by the Order in Council of 18th April 1924. In 1925 the Government of Northern Rhodesia passed the Barotse Fund Ordinance which created a special fund into which tax collected from all the citizens of Barotse Nation was to be deposited and utilised for the benefit of the people of Barotse Nation. The Order in Council of 1962 through Sections 57 and 80 also recognised and confirmed the separate existence of Barotseland.
Furthermore, it is recorded that as far back as 1905 the existence of Barotseland as a State was recognised by the King of Italy in an arbitration award. Scholars of International Law have also recognised the historical sovereign nature of Barotseland.
The above lends support to the overwhelming conclusion that Barotseland has, for a very long time existed as a separate entity from Northern Rhodesia/Zambia. Although the Barotseland Agreement of 1964 attempts to underlie this autonomy of Barotseland it very much muddied the waters and was indeed the hallmark of the collapse of Barotseland as a separate entity and very much the cause of the present situation. The rationale behind the Agreement particularly as to why Barotseland consented to being “swallowed” into Zambia does not become apparently clear, the bottom line is that the Agreement marked the beginning of the unfortunate collapse of Barotseland as an entity and as a people.
It is to be noted in this respect therefore, that Barotseland was not traditionally part of Zambia. The only legal basis upon which Zambia exercised any authority or control over the Barotseland Nation was to be derived from the Barotseland Agreement of 1964; no other such basis exists, factually and at international law. Consequently, as soon as the Government of Zambia decided that it did not recognize the Barotseland Agreement of 1964 then it no longer had any legal right over the territory, people and resources of Barotseland. They cannot reprobate and approbate. If they do not wish to be bound by the very agreement which gave them “rights” over Barotseland in the first place, then they must simply ship out and leave Barotseland in the peaceful state of independent existence as prior. In choosing to renege from the Agreement and committing violations as indicated above one cannot resist the argument that the Zambian Government must be demanded to make repatriations.
THE RIGHT TO SELF DETERMINATION AT INTERNATIONAL LAW
The existence of the right to self-determination at international law is one that cannot be disputed and one that poses little controversy. It is encapsulated in various international legal instruments not least of which is the United Nations Charter. Moreover, the right is recognized under the African Charter on Human and Peoples Rights, the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights. The International Court of Justice in the East Timor case confirmed that the right to self-determination was “one of the essential principles of contemporary international law”. The ICJ has also confirmed the existence of this right in numerous other cases.
Be that as it may, the content and scope of this right, its implementation and status remains contentious. Cass notes that self-determination remains one of the most unsettled norms in international law. This is essentially because, as Dugard succinctly captures it;
Much of the support for the principle of self-determination as a legal right and as a peremptory norm is couched in generalizations and little attempt is made to define the content of the right with any precision.
Unfortunately, the implementation of the right to self-determination is even more controversial than its context. This then essentially means that there are no determined criteria or pathway towards the attainment of this right and each case depends largely on its peculiar circumstances. Although one can draw lessons from what has transpired elsewhere, they do not provide a foul proof formula.
What is clear however is that the right to self-determination has two dimensions, external self-determination and internal self-determination! External self-determination deals with the right to decide on the political status of a people and its place in the international community in relation to other states, including the right to separate from the existing state of which the group concerned is a part of and set up a new and independent state. On the other hand, internal self-determination includes the right to exercise cultural, linguistic or (territorial) political autonomy within the boundaries of an existing state.
The controversies that surround this right, however, do not detract from its significance and should not be viewed as a deterrent towards its assertion.
Ultimately, the right to self-determination, although viewed as a fundamental right with a legal status of huge significance, it is ambiguous and its scope unclear. Its two contradicting aspects give it the double role of being both a useful and useless tool of international law. In the end, the inconsistency in state practice makes it virtually impossible for a more precise definition and clear scope to emerge…..Nonetheless, what makes this right so powerful is the fact that it, no matter how it is interpreted, appeals to the very core of human beings.
Despite the differing facets of the right to self-determination, the International Court of Justice in the Western Sahara Case advised that the essential requirement is that the outcome corresponds to the free and voluntary choice of the people concerned.
THE STATE OF BAROTSELAND OR AN AUTONOMOUS BAROTSELAND WITHIN ZAMBIA?
A crucial question that requires greater analysis and thought is, what exactly do the people of Barotseland want? Do they want to be granted autonomy within Zambia and to be an enclave in Zambia or do they want to “restore their sovereignty as an independent state?
The Barotseland National Council of 2012 clearly declared that Barotseland becomes an independent state; cancelling all the relationships that subsisted between Barotseland and Zambia if there was any.
The efforts towards restoring the Barotseland Agreement of 1964 have met resistance by the Zambian Government; hence, the Barotzish now do not want some sought of semi-autonomy, but what they want is total independence from Zambia just as it was in 1960s or before that.
Secession remains a very controversial principle at international law and its status is less than clearly defined. The uncertainty relating to the status of cession stems from the fact that it is neither permitted nor prohibited. When the International Court of Justice was presented with an opportunity to clarify this issue in the case relating to the unilateral declaration of independence by Kosovo, it shied away from the challenge. What the court simply held was that the unilateral declaration of independence of Kosovo adopted on the 17th February 2008 did not violate international law. When consideration of a claim to secession by Quebec, the Supreme Court of Canada also expressed the sentiment that international law contains neither a right of unilateral secession nor the explicit denial of such a right.
One author further observes that an unlimited right to self-determination, including secession, leaves the state system vulnerable to challenges and the whims of groups or perhaps groups within groups. This would threaten the international order that international law strives to maintain.
To this end, to the greatest extent possible, it is always encouraged that means be explored through which self-determination can be asserted without the creation of a new state. For as long as a State can demonstrate that it is treating the people equally and not violating their human rights, while at the same time allowing them to self-determine, other states would not interfere with its matters to further the struggle of those that seek to secede. Emphasizing this point, the Supreme Court of Canada when dealing with the case of Quebec had this to say;
A State whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respect the principles of self-determination with its internal arrangements, is entitled to maintain its territorial integrity under international law and to have its integrity recognized by other states.
That notwithstanding, it has been argued that although the United Nations and its members do not support claims for unilateral secession in light of the developments that took place after the examples of Kosovo and East Timor and the decisions of the Canadian Supreme Court regarding the claim for Quebec secession, it is possible to indicate that some exceptional conditions may allow the acceptance of a claim to secession. According to Alan Buchanan such exceptional circumstances could include persistent and serious violations of individual human rights and past unrepressed unjust seizure of territory. Moreover, secession would be acceptable in a post-colonial context against undemocratic authoritarian regimes that violate human rights. The establishment of a new State through secession will also be recognized in international law of following armed conflict, distinct territories of an existing state should agree to part ways under the terms of a peace treaty. This is the context under which Eritrea seceded from Ethiopia.
In light of the circumstances that prevail in Barotseland as reflected in the conduct of the Government of Zambia post the 1964 Barotseland Agreement one is able to argue that the Government has behaved less than honorably, to the obvious detriment of the people of Barotseland. Such violations, as indicated above includes the unlawful arrest and detention of individuals seeking to assert the right to self-determination; the illegal seizure of some £78, 500.000.00 worth of treasury; illegal seizure of territory; illegal seizure and assumption of mineral rights previously reserved for Barotseland; the willful and the blatant refusal of the Government of Zambia to meaningfully engage on the issue thus making coexistence a very farfetched possibility. Moreover, Barotseland is not a minority but a nation. It is humbly submitted that an objective assessment of these circumstances qualify as an exceptional circumstance that would readily justify restoration of sovereignty of Barotseland.
The marriage of convenience that was created by the Barotseland Agreement of 1964 appears to have broken down irretrievably and it may only be reasonable to request that each party retreats to its respective territory and conduct its own independent affairs. This option would also be seamless because as matters stand it is submitted that Barotseland would readily meet the international law requirements of statehood in that it has a defined territory, a permanent population and a government capable of governing effectively in internal processes and acting responsibly in external relations with other states.
The right to self-determination is not restricted to a political or civil right but is propounded as the gateway to economic, social and cultural rights.
DOES BAROTSELAND CONSTITUTE “PEOPLES”
The right to self-determination as discussed above is a right granted to “peoples”. The question that arises therefore is whether Barotseland meet this requirement so as to claim self-determination. Not surprisingly, there is no universal definition of “peoples”. The Vienna Convention on the Law of Treaties and indeed the international Court of Justice has affirmed the position that terms in international legal instruments ordinarily are to be interpreted according to their plain meaning. In 1989 the UNESCO International Meeting of Experts on the Elucidation of the Concept of Rights of Peoples developed a detailed description of “peoples” and defined peoples as a group of individual human beings who enjoy some or all of the following common features;
(a) Racial or ethnic identity
(b) A cultural homogeneity
(c) Linguistic unity
(d) Religious or ideological affinity
(e) Territorial connection
(f) Common economic life
Moreover, in dealing with who qualifies as a people particularly dealing with a claim of Southern Cameroonians to self-determination the African Commission held that they could be accepted as a people “because they manifest numerous characteristics and affinities which include a common history, linguistic tradition, territorial connection and political outlook. More importantly, they identify themselves as a people with a separate and distinct identity”.
In light of the broad and purposive interpretations given to the terms “peoples” and the circumstances of the Barotseland, we have no hesitation in submitting that Barotseland do meet this requirement and can indeed exercise the right to self-determination.
THE TERRITORIAL INTEGRITY OF ZAMBIA AS AN OBSTACLE?
It is to be noted that the right to self-determination does not exist in a vacuum. It has been submitted that self-determination invariably clashes with other legal principles and rights and these must be weighed and balanced it being emphasized that the primary objective of international law is the maintenance of peace and security. The Council of International aspects observed as follows;
Other rights and principles which may have to be considered in this process include: the rights of minorities or indigenous peoples and other peoples and population groups within the territory of the people claiming the right to self-determination; the territorial integrity of the state, where a people's claim may entail separation from it; rights and obligations to which the parties involved may be bound, for example, by treaties; and provisions of human rights law.
The fact that at present, at least from the perspective of Zambia and other States, Barotseland is part and parcel of Zambia, this poses numerous challenges. Such challenges would inherently limit the extent to which the international community may interfere to assist the people of Barotseland to attain self-determination. One such challenge is the fact that Zambia as a nation has the right to territorial integrity, sovereignty which places an obligation on other nations to desist from interfering with the internal affairs of Zambia. This is a right that is granted by the UN Charter and is universally accepted and recognized.
Brownie correctly observes that self-determination sometimes conflicts with principles of sovereignty, equality of states, the principle of territorial integrity, non-use of force and non-intervention. In the Nicaragua case the International Court of Justice emphasized that coercive methods used to affect the political, economic, social and cultural systems of a State constitute a breach of the customary principle of non-intervention.
To this end, it is to be accepted that no matter the extent of support that the Barotseland people may garner in asserting their right to self-determination, the international community could be limited in the options they can exercise without violating fundamental principles of international law. Therefore, it cannot be overemphasized that this is a situation that both parties must see as a common problem worthy of a common solution through peaceful means.
As an alternative argument however, one needs to emphasize that Barotseland have always had and maintained their separate territory. This is a territory over which they were entitled to autonomy and a territory that they never agreed to cede to Zambia. The only reason that Zambia presently exercises any control over such territory is because of the Agreement of 1964 which in itself was never intended to surrender territory to Zambia. To that end, it is inconceivable that Zambia would successfully assert territorial integrity over a territory it forcibly acquired especially if such a claim is to the detriment of the rightful owners of the territory.
MEANS OF IMPLEMENTATION
The exercise of the right to self-determination requires, by its very nature, the expression of the will of the people. The holding of a referendum in order to establish the will of the people with a respect to a change of status matters is a widely accepted act of self-determination. By way of example, Scotland recently held such a referendum on its independence. The Conference of Experts however noted that the act of self-determination is not reduced to a referendum but is seen as an integral process to which the referendum is but one of the elements. They further cautioned that where only votes count, a people or community which is numerically inferior has no control over its destiny. To this end, if a referendum is to be conducted then it has to be carefully formulated and the group of people allowed to vote clearly defined in order to ensure that the people of Barotseland are the ones that ultimately make the decision. If the vote is left to all of Zambia then the voices of the people of Barotseland can be quite easily drowned and the essence of the referendum defeated.
However, on the other hand, the people of Barotseland do not even require a referendum to be conducted on account that there is no legal reference of their existence within the union with Zambia. Zambia used its parliament to destroy the treaty that it did not create. If Zambia was led by clever and sane people, they would have respected the views of the people at BNC of 2012 by withdrawing its administration from the territory they do not legally own. Over 50,000 people had gathered at BNC 2012 to resolve that Barotseland shall now become independent and it shall then determine its future whether good or bad.
It is not within the powers of Zambia to decide the fate and prospect of Barotseland; the independence of Barotseland is not hinged on Zambia to decide. Barotseland has a right to decide on its own, just like it did in 1964 when it resolved to join Zambia, and in the same way, it has decided to come out of it. There is no ambiguity in that.
The people of Scotland went for a Referendum because there was nothing that they had agreed upon with Britain that they did not respect; the rules and conditions of their union were rightfully followed, but still the people of Scotland felt they were lacking the element of being Scottish as a people coming from the independent Nation of Scotland. So they sought to come out of it, and the legality of any case determines whether referendum should be considered or not.
As for the case between Barotseland and Zambia it is such a straight forward one; it requires the respect and sincerity of both parties to be exercise maturity, or else it can result in deadly conflict which could have been avoided.
The true position of Barotseland within Zambia is that, Barotseland wants total independence granted through the 2012 BNC; to actualize it, it will go ahead to sue Zambia in the International Court of Justice just to lay claim and charges against Zambia, so that Zambia can now pay for all the misfortune it has caused on Barotseland in the court of law. If Zambia feels it has a legal claim over Barotseland, then let it advance it.
Furthermore, the good offices of the United Nations Secretary General are also always amenable to lend assistance. They were indeed utilized by Northern Ireland in their claim to self-determination. This is another option open to the Barotseland and one they must utilize. Cognizance is taken of the fact that attempts have been made by Barotseland to reach out to the UN Secretary General. However, it is observed that the communications need to be more carefully crafted in order to succinctly capture the problem and adequately delineate the nature of assistance sought. If the problem is not clearly defined then the Secretary General may not appreciate the nature of the situation let alone the gravity thereof. This could easily lead to such communications being mistaken for “junk mail” and consequently ignored.
The International Court of Justice remains another option but the downside of the ICJ is that it lacks enforcement mechanisms of its decisions. The same can be said of the United Nations Human Rights Committees. Despite limitations on enforcement, it is advised that all these are viable options which must be considered and utilized for all they are worth.
More critically, the assertion of self-determination does not have to necessarily involve third party intervention. All parties are always encouraged to engage in processes of negotiation, dialogue and the conclusion of agreements between the State Authorities and the representatives of the people concerned. It has been noted that previous attempts by the Barotseland to engage the Government of Zambia in any form of meaningfully dialogue has fallen on deaf ears. However, it remains worthy to intensify such efforts and remain hopeful that eventually there will be some positive effort from the Government. This is particularly significant because in order to explore other external options Barotseland will have to demonstrate a bona fide exhaustion of local remedies and methods.
LOBBYING THE INTERNATIONAL COMMUNITY
The enforcement of the right to self-determination almost invariably involves the might of a sovereign state against just a small sector of the population that wishes to have a voice. It is inevitable that the scales tilt heavily in favour of the state of Barotseland. Therefore, it becomes essential for the people that seek self determination to be able to productively lobby for the support of the international community and international institutions. The international community has a vested interest in the protection and fulfillment of human rights, including the right to self-determination. Accordingly, they will always be willing to offer their assistance and support when the situation warrants. It is therefore imperative for the leadership of Barotseland to do all that is within their power to bring the plight of its people to the attention of the international community and foster relations with key players who would be able to assist in the realization of the aspirations of the people. The leadership has a mammoth task of devising concrete, effective and innovative strategic plans of how this objective will be achieved.
It has been observed by commentators that the international community chooses, seemingly at in a random manner, which people to offer support to in their struggle for self-determination. There are “popular” groups like the Tibetans and there are “unpopular” groups like the Tamils in Sri Lanka. It has indeed been observed that the decision of the international community on whether to lend support to a claim to self-determination is based on a myriad of factors and which vary from simple publicity to foreign policy. In this respect, the notion of packaging becomes every bit significant. Barotseland has to, at all costs; avoid creating the perception that they may be a small group looking to cause instability and disruption within Zambia. The case of the Barotseland land must be fully brought to the attention of the international community so that it can be understood properly for what it is, untainted.
RECOGNITION OF THE STATE OF BAROTSELAND BY THE INTERNATIONAL COMMUNITY
It is an indisputable fact that recognition of a State by other States is merely a declaratory act which does not in itself constitute or create States. Brierly conceded that recognition does not bring into legal existence a State which did not exist before and that a State may exist without being recognized, and if it does exist in fact, then, whether or not it has been formally recognized by other states, it has a right to be treated by them as States.
Be that as it may, recognition plays a fundamental role in the manner in which the State relates with other States and indeed the international community. The consequences of recognition where comprehensively captured in Oppenheims International Law as follows;
Generally a situation denied recognition, and the consequences directly flowing from it will be treated by the non-recognizing States as without international legal effect. Thus a non-recognized State will not be treated as a State, nor its government as a government of the State; and since the community or authority in question will thus not be treated as having the status or capacities of a State of government at international law, its capacity to conclude treaties, or to send agents of a diplomatic character, or to make official appointments of persons whose act are to be treated as acts of a States may all be called into question. Generally, in its relations with non-recognizing States that community will not benefit from those consequences, which normally flow from the grant of recognition.
It therefore becomes crucial for Barotseland to take appropriate steps to ensure that they obtain the requisite recognition by other States. It is noted that so far Barotseland has received recognition from The Federation of Free States of Africa and the Union of Free States. Efforts will nonetheless have to be intensified to increase the level of recognition thus placing Barotseland at an advantageous position in so far as international relations are concerned.
A STABLE AND SUSTAINABLE PLAN: IS BAROTSELAND READY AND ABLE TO EXIST “INDEPENDENTLY”
More often than not, the political desire of autonomy usually overshadows consideration of other equally important issues that must be ascertained and analyzed with equal depth. Although those issue require a level of expertise outside my scope I will briefly highlight them in order to ascertain that they also be given due consideration.
Running a country is by no measure a small task. When the euphoria of a successful claim to self-determination has died down fundamental challenges remain. The first, and perhaps major challenge, is that of the economic and financial capacity of the new government to provide for its people. How much money does the entity have at its disposal? What are the means through which the entity is able to, and intends to generate revenue? Are those means sufficient and sustainable? What are the resources available within the territory? What are the management plans in place to ensure that the resources are appropriately utilized for the benefit of the greater populace? Whereas it is almost inevitable that at the stage of trying to assert self-determination there will be external financial support from sympathizers, such cannot and should not be the main source of finances through which the entity seeks to survive. An appropriate and detailed fiscal policy is required and it ought to be ascertained that it is sustainable in the long run. If fitting attention is not given to this critical aspect it can have disastrous consequence and the victory of self-determination will be short lived. This is an area that we accordingly advise that due attention be given to and experts be engaged to ascertain viability.
The other consideration is that of the political ability to govern. There has to be in place a clear and concrete manifestation of who the immediate governance of the country is going to be. How are they going to be elected? Do they have the requisite expertise and background to lead and manage their respective Ministries? The existence of a shadow government in Barotseland is a positive step towards addressing these issues but they still require a thorough a diligent analysis to ensure that issue of governance has also been given the consideration it deserves.
The other important aspect of self-determination is the existence of a defined territory being the territory in which the people seek to be autonomous. Are the boundaries of that territory commonly accepted by the State? How strong is the claim to those territories? What measures, if any, are to be put in place in respect of other Zambians (not being of Barotseland origin) who are currently resident within that territory? In this regard it is advised that the policies adopted must be ones that promote principles of inclusiveness and should not be seen as separatist.
Though the Barotseland Fiscal Report of 2014 released by the Barotseland Government, shows clearly that the new state of Barotseland has unchallengeable prospects of viability as an independent state with all the renewed sense of hope and pride; it has experienced human resource and sufficient reserves of mineral wealthy, tourism and agriculture enough to make its people live the life they always craved for!
Based on the foregoing, the following conclusions and recommendations are made. It has been established that the Barotseland Agreement of 1964 was a treaty binding on both parties and in respect of which the parties had an obligation to act in good faith in the implementation thereof. However, the Government of Zambia chose to render it a nullity by simply terminating it by way of non-consultative legislative fiat. It is submitted that such actions do not find legitimacy in international law. Whatever is done contrary to law is illegal.
It has further been established that there is sufficient evidence to support the conclusion that Barotseland existed as an independent entity separate from Zambia prior to 1964 and indeed prior to the establishment of Northern Rhodesia itself. There was never any agreement by virtue of which the territory of Barotseland was ceded to Zambia and the parties only coexisted within purview of the Barotseland Agreement of 1964. Consequently, in the event that Zambia chose not to observe the agreement then they no longer have any legal entitlement to occupation and control over the Barotseland territory and there continued presence thereon possibly qualifies as an illegal occupation in contravention of international law.
Moreover, it has been established that the people of Barotseland have the right to self-determination. This is a right that they can choose to exercise within Zambia if they decide to compromise as was contemplated by the Agreement of 1964. Such would give them internal autonomy over the conduct of their affairs and over their territory.
On the other hand, they may choose to exercise external self-determination which would entail the establishment of a new state independent of Zambia. Establishment in this context is used loosely since the argument is that Barotseland has always existed as a nation. Perhaps the more accurate terminology would be recognition. Whatever the case, this requires putting measures in place to ensure transition into a fully recognized Sovereign State of Barotseland.
The paper has also considered incidents of self-determination elsewhere with a view of drawing lessons therefrom. Such includes the Kosovo situation, the East Timor Case, and the case of Quebec. What can be concluded in this respect is that there is no criteria cast on stone as to how self-determination is to be achieved. Each case depends on its peculiar circumstances. However, the ultimate goal is always the same; for the people to have their destiny in their own hands and achieve the autonomy they desire. It is therefore concluded that in light of the peculiar circumstances of Barotseland as discussed above, Barotseland is an appropriate candidate to claim to restore her sovereignty and self-determination, and such a claim carries respectable prospects of success.