A treaty is an international agreement, in writing, between two states (a bilateral treaty), or between a number of states (a multilateral treaty). Federal states, colonial states and public international organizations are also able to enter into treaty obligations.
Treaties are also known as conventions, pacts, protocols, final acts, arrangements, general acts, covenants or ‘agreements’.
Treaties are binding in international law and constitute the equivalent of the municipal law of contracts, conveyance or legislation.
Some treaties create law only for those states that are parties to them, some codify pre-existing customary international law and some propound rules that eventually develop into customary international law, binding upon all states (e.g the Genocide Convention).
The Vienna Convention on the Law of Treaties (1969) defines in detail the rules relating to inter-state treaties and is generally considered to declare or develop the customary international law in this area.
Treaties are normally concluded by the process of ratification.
In the UK, the power to make or enter into treaties belongs to the monarch, acting on the advice of government ministers, but a treaty does not become part of the municipal law until brought into force by an act of Parliament.
From the above definition, we can, therefore, conclude that the abrogated Barotseland Agreement 1964 was indeed an International Treaty, having been agreed and signed by three state-parties namely, Britain / Common Wealth, Barotseland and Northern Rhodesia.
It could never have been a mere appeasement; especially that it was intended to be the successor treaty to all existing treaties between Barotseland and Britain! Zambia was, by this treaty, legally accepting to inherit all obligations Britain had over the Kingdom and separate Protectorate of Barotseland!
The treaty was to be binding to all states party to it! As stipulated in customary international law, treaties must be concluded by the process of ratification.
WHAT IS RATIFICATION?
In international law, RATIFICATION is the approval of a treaty usually by the Head of State (or by the Head of State and Legislature).
This takes place when documents of ratification are either exchanged or deposited with a named depository.
Normally, a treaty will stipulate expressly whether it will bind a party as soon as it is signed by that party's representative or whether it requires ratification.
The Vienna Convention on Treaties (1969) provides that when a party does not specify whether or not ratification is required, reference will be made to the parties’ intention.
Performance of a treaty may amount to implicit ratification.
In the UK, it is the crown that signs and ratifies a treaty on behalf of the United Kingdom, and upon the advice of the responsible minister. The Parliament, however, if invited by Her Majesty’s government, may give its approval for the crown to do so. A legislation is nearly always necessary to give effect to the treaty in domestic law, but that is not ratification.
The above is exactly what happened on the 18th of May, 1964 when all three parties to the Barotseland agreement signed or ratified the said agreement!
If, however, Kenneth Kaunda thought he could dupe the people of Barotseland by signing the pre-independence agreement in bad faith, he deceived himself and all Zambian citizens because by international law, immediately one appends his signature to the treaty he is a party to, he becomes legally bound and obligated to abide by it.
WHAT HAPPENS WHEN A TREATY HAS BEEN BREACHED?
Failure to abide by a treaty attracts consequences, the obvious one being that the innocent party has the right to revert to his or her original status before the treaty was signed or ratified as though he/she did not enter into that treaty.
“A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operations in whole or in part”. – Vienna Convention Article 60
Further, “termination of the treaty releases the parties from any obligation to further perform the treaty and once the treaty is dishonored the parties to the agreement should refrain from making each other’s territory the object of acquisition by means of military occupation or by a direct or indirect measure of force”.
Additionally, “A party may not invoke the provisions of the internal law as justification for its failure to perform a treaty!” - Vienna Convention Article 27. This means that the idea of Zambia changing the constitution to purportedly annul the Barotseland Agreement 1964 is purely legal fiction!
Since the Vienna Convention Articles 60 and 70 give a mandate to the innocent party to the treaty to revert to his or her earlier position obtained before it was entered into, Barotseland used this law to formally declare that they would revert to the pre-agreement status on March 27th, 2012.
In fact, she was reverted to her original status which obtained before 1964 by Kenneth Kaunda's government, when they first repudiated the agreement and then went further to purportedly abrogate the same by the act of Parliament in 1969. Barotseland then protested until 2012 when she too pulled out of the defunct treaty!
This is why all sane lawyers and judges in Zambia agree that arresting Barotse people on perceived treason and secession by the Zambian state is impunity and an act of illegality because there is no such offense in international law on treaties, agreements and contracts when an innocent party reverts to their original pre-agreement status.
In fact, all alleged offenses of treason, sedition and secession on the Barotse people over the status of Barotseland are vexatious, frivolous and malicious.
It is purely against the rights or principles of the rule of law as provided by the international law to handle Barotseland Agreement 1964 related matters with such heavy-handedness. Ruling with an iron fist is draconian and is a long-gone style of rule, except under dictatorships, which the Zambian state has been for the longest of time.
The other consequence of repudiating and abrogating the treaty is reparations.
Reparations, in international law, are compensation for injuries or international torts (breaches of international obligations). Wherever possible, international courts or arbitration tribunals will rule that reparations be made by means of restitution in kind; if this is not possible, compensation is by payment of a sum equivalent to the value of restitution in kind.
The aim of reparations is to eradicate the consequences of the illegal act.
Since the Zambian state acted illegally by repudiating and unilaterally abrogating the Barotseland Agreement 1964, one day soon they must compensate Barotseland for the loss she has incurred as a result of the breach, and also for occupying her illegally for over four decades.
Many Zambians are unaware of this predicament Kenneth Kaunda and successive governments have put their country into. They would rather think and wish that the Barotseland Agreement 1964 would die a natural death!
It is no wonder many Zambians think they can bury this matter by daily parroting ‘One Zambia One Nation’ slogans supported by the surreal ‘unitary state’ clauses in their constitution which were introduced long after they abrogated the 1964 agreement!
Instead, Zambians should avert their impending doom by peacefully and amicably dealing with Barotseland! A good start would be to immediately release all Barotse political prisoners, Afumba Mombotwa, Likando Pelekelo and Inambao Kalima, held in their maximum state prisons in Northern Zambia.