In the only effort there has been to state a Zambian response to the position set out in a letter by Minister without Portfolio to Ngambela dated 18th August 1993, namely that because (almost) all the breaches of the Agreement were being made by statutes promulgated under the legal requirements for such in Zambia and these statutes were not judicially challenged, they somehow had legitimacy also in Barotseland and the Barotseland Agreement was therefore “statute stale”.
However, that argument founders completely on the fundamental principle of customary International Law that a party may not invoke the provisions of its internal or municipal law to justify its failure to perform a treaty. Obviously international comity and custom and thus international law would be in danger of failing altogether if a state was allowed to enter into a treaty with another state or states requiring it to act in a particular manner and then defeat that treaty by passing a domestic law purporting to forbid it so to act, or, as was the Kaunda administration’s ruse in the present case, purporting to declare, in a municipal statute, that the treaty “shall cease to have effect”. It may well be – we do not know, so we can neither admit nor deny – that all the offending enactments in themselves complied with the internal laws of Zambia. However, since we are dealing with an international treaty, and a particularly shameless way of attempting unilaterally to render it nugatory, any such compliance constitutes domestic and municipal law of Zambia and is completely immaterial to the independent position of Barotseland.
The legal flaws in the Government of Zambia’s behaviour and position are clear enough. The practical point however makes itself that since Kaunda and successive Zambian regimes were “calling all the shots” with regard to the situation in the new Zambia in those days, these considerations did not count. The Barotse could not argue. They just had to endure their lot as best they could. And their country lay fallow – achingly beautiful, but criminally neglected. That is what one sees visiting Barotseland today.
The principle that a party may not invoke the provisions of its internal law to justify its failure to perform a treaty has been given Conventional force in Article 27 of the Vienna Convention on the Law of Treaties. This Convention was enacted on 23rd May 1969 and signed without reservation on behalf of Zambia by one Lishomwa Muukwa the same day.
Probably the most crucially decisive and offensive of all the purported Zambian legislative provisions in issue in this case, namely the proclamation that the Barotseland Agreement shall cease to have effect – Constitution Amendment Act No. 5, 1969 – was purportedly enacted in October 1969, that is to say 5 months after Zambia had signed the International Convention embodying the already existing principle of Public International Law expressly forbidding reliance on municipal law to justify failure to comply with a treaty.
2. UNDER THE LAW OF CONTRACT
Having dealt with the Barotseland Agreement in terms of International Law, we may now view it in its additional function as a simple contract between its three parties. It is in the nature of treaties that almost all have the legal character of ordinary contracts, with the public international element overlaid thereon, and Barotseland maintains that the principles that follow all fall within the general principles of law recognised by civilised nations to be applied by this Honourable Court in terms of Article 38 (1) c) of the Statute of the Court.
The Agreement having been reached, the failure to ratify it constituted a material breach of it by the Government of Zambia, so did the purported enactment of the Local Government Act, 1965, so did the Mines and Mineral Act 1969, so did the taking of the contents of the Barotse Treasury, so did the failure to provide financial support and to ensure that the laws of Zambia were not inconsistent with the Agreement. The list can go on. Above all, of course, the Constitution (Amendment) No. 5 Act of 1969 constituted an express and outright unlawful repudiation of the Agreement by the Government of Zambia.
Barotseland submits that in the law of contract in all legal systems, where there is a material breach or unlawful repudiation of an agreement the guilty party cannot rely upon his own breach or in any way force that breach to bring about unilaterally a termination of the agreement. Rather the situation is that the innocent party, faced with the material breach or repudiation, may either decide to accept the breach or repudiation as an abrogation of the agreement having the effect of terminating it and rely on his legal remedies arising from the fact, or he may decline so to accept it but still recover the loss he suffered in consequence of the other party’s breach. If the abrogation is accepted by the innocent party then, of course, the agreement ceases, both parties are released from any further obligations under it and the status quo ante prevails, subject to the wronged party’s entitlement to recover his losses as damages. If, however, the innocent party does not elect to treat the material breach or repudiation as terminating the contract then it and its obligations continue to govern the parties’ relationship.
It is appropriate at this point, to back track to the previous heading and observe that International Law in fact follows the law of Contract closely in its treatment of the concept of material breach. Article 60 (3) of the Vienna Convention on the Law of Treaties, it is provided, restating a long-standing binding principle of customary International Law, that a material breach or a violation by a party of a provision essential to the object or purpose of the treaty is a repudiation of the treaty, which entitles the other party or parties to invoke the breach as a ground for terminating it. “Entitles” but does not oblige; and Barotseland did not accept the termination until March 2012.
Prior to this acceptance the Agreement continued in force in law, and the Government of Zambia continued to clock up breaches of it, and surely its legal advisors, at least, must all the time have been aware that sooner or later those multiple breaches were inevitably going to come back to bite it.
In the meantime, the Zambian Government, having refused to comply with its obligations under the Barotseland Agreement, having abrogated it again and again and having purported to repudiate it altogether, nonetheless went right on purporting to act as a government of Barotseland and to impose its authority there.
It is, of course, a fundamental rule of the law of contract that a party cannot seriously breach or terminate an agreement and, at the same time, continue to enjoy the rights and privileges conferred upon him by the agreement terminated. A party can only enjoy the benefits reserved to him under an agreement if he is prepared to be bound by the concomitant obligations laid upon him thereunder. “You can’t approbate and reprobate” as the maxim goes.
Where, as here, the agreement is also an International Treaty the identical principle is equally well recognised in customary and conventional International Law.
Obviously, the way in which the Government of Zambia has fallen seriously foul of the above principle is that it is – some 51 years after the event - purporting to approbate the 1964 Agreement by exercising all the rights and authority potentially conferred thereby on a legitimate sovereign Government of Barotseland, whilst reprobating it by never - not for a fleeting moment in history – having been prepared even to make a pretense of shouldering any of the responsibilities which that Agreement imposed in return for Barotseland’s submission to be a part of the independent Zambia.
As has been said, in March 2012 the Barotseland National Council finally elected to accept the Zambian Government’s abrogation of the Barotseland Agreement. The Agreement had effectively been dead since 1965, certainly since 1969, but only on the acceptance of its abrogation by Barotseland did the vestiges of it cease to bind the Zambian Government.
Legally speaking, Zambia’s actual occupation of and purported exercise of authority over Barotseland probably became unlawful - ineluctably so from Zambia’s side - as early as Zambia’s first demonstrable abrogation of the Agreement back in 1965, and ever thereafter continued to be unlawful. What the acceptance of the abrogation by the Barotseland National Council ensured is that the matter has been put beyond all doubt and argument.
Zambia, by its failure to engage with the Barotseland establishment during the many years when that establishment might still have been motivated by a spirit of compromise, has managed, as a matter of fact, to paint itself into a corner. Not only is its continued occupation of and purported exercise of sovereignty over Barotseland completely unlawful but also all question of making any sort of peaceful or compromise solution whereby the situation can be rescued by Barotseland staying as part of a unitary Zambia with its protections restored has been excluded by the utter and persistent dishonesty and wickedness of the behaviour of Zambia since 1964. How can anybody be compelled to remain in a marriage of convenience to such a thoroughly untrustworthy partner?
The forgoing is Part THREE 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 ONE and Part TWO.