Monday, February 17, 2014
By Namakando Nalikando-Sinyama I have been traversing the Southern route back and forth using MazhanduFamily Bus Service since January of 2008. Having been such a regular patron of this bus, there has been certain ‘benefits’ or privileges that accrue like having preferred seats reserved for me well in advance. I have always been offered the front roll seats when I travel. I have often joked that if the distance I have covered to date on this bus were to be stretched, it might easily run from Cape to Cairo! On this fateful dayof 05/10/2012,keeping true to this tradition, I was given seat No. 2 which is right behind the driver’s seat. All seemed well and relatively uneventful after we started off from Livingstone at about 09:00hrs until at around 10:25 or so at a point 10 to 15 km before Choma, when our bus had a front tyre bust while moving at speed and careered off the road. This sent it hurtling into the nearby bushes where we yet again had a second tyre bust from hitting into tree stumps and a living tree, effectively uprooting it in the process until we came to a traumatizing stop some 100 meters away from the first tyre bust. It is worth mentioning that throughout this ordeal, our gallant driver, though having passed the regulation speed, telling from the breaking distance of our bus, he had his hands firmly on the steering until he brought the bus to a stop. We all know that stories abound where drivers have been known to jump out through the window or in a feat of sudden panic they apply emergency breaks which if it had been done we would certainly have flipped over making fatalities all the more likely. Judging from the bus wreckage,a number of people must have been badly hurt and indeed they were.Some people I sat next to sustained broken limbs and very deep cuts. In the thick of things, due to her instinctive infinite maternal ‘wisdom’, there was a lady who decided to toss her young infant through the back windowof this wildly speeding bus. This infant may have landed head first on the hard ground because she had a soiled head when we later met up with them at Choma General Hospital where we had gone to have our vitals checked and shots of Tetanus injection administered due to the threat of our wounds becoming septic. This poor baby’s neck or spine would have instantly snapped on impact. As to whether or not this was a right decision by her mother, may not be for me to say as I never experienced pangs of labour! Granted that in instances such as these rationality is thrown out of the window, literally! There were people who got badly injured and some could have so easily died, so you will not catch me dead leaping to thanking god that my life was spared and because I escaped with merely superficial bruises on the body, aching spinal column and a severely sore left Gluteus maximus,my head was left in a dazed state from the post-traumatic stress which might explain why moments after the accident I just stood there in a transfixed pose,I am having pieces of glass debris still imbedded into my skin. The only visible reminders of this incident on my person is, that despite the famed hardness of a cotton fabric that denim is, its structural integrity was breached as a hole was made in it near a very delicate part of my body.If only whatever made this impression had moved upwards by a few inches, I would have kissed my procreative ability good bye! There is a deep lesion in my left breast made by some sharp object. If the object had moved just slightly to the left I would have lost a nipple! My lower back is experiencing some dull but telling pain as I cannot seem to support the bulk of my frame as well as I used to. I now have to walk gingerly with a slight noticeable limp. I do not intend to trigger any religious debate but I happen not to subscribe to the common notion of there being a Celestial Ledger where world events are neatly choreographedor orchestrated by the powers that be and where it was ordained that on a specific day this lady who sat next to me was to break her leg in two points!The same way I find it rather utterly inconsiderate of people who escape death in an accident where others have died but they thank God they did not die themselves. This, of course, is notwithstanding the ecclesiastical proclamation of there being time for dying and time for laughing etc. What is fact though is thataccidents do happen and always will to one and all.Some people die and some people survive, some people end up with severed limbs and others come out of accidents unscathed, others are maimed forever others end up only with a mere headache and a version of events to narrate. It is quite implausible that a whole bus could have been filled up with very special people who god wanted to save on this day for some later assignment and higher purpose in life. Whether there is some yet unknown reason why we did not die and others have died gruesomely before is not an area am prepared to delve into just yet as am still recuperating to entertain philosophicalred herrings. Look,going by The Law of a Probable Outcome, the very frequency with which I have travelled that route just rendered me prone to any of such freakish accidents. A number of conditions conspired to make this bizarre event possible. In my opinion, the driver may have over sped well over 140 Km/h,owing to the extreme mid-day temperatures and the possibility of the bus being in a semi-state of neglect, that is,tyres not having been checked or replaced with more road worthy ones made them fail to hold their own against the full brunt of the mid-morning sweltering heat coupled with the traction frictional heat. Sadly, not even Thegod Vulcan could protect us as the tyres gave in to the massive heat generated from the tarmacadamised road surface. After having said all this, what remains to be said is that despite all the whys and wherefores, I have yet again Lived To Die Another Day!
Saturday, February 1, 2014
By William Kirtley Although few who were born after World War II know of the State of Barotseland, a previously well‐known nation that is slightly larger in size than Germany and forms the Western part of what was until recently universally considered Zambia, this is likely to change in the near future. The union between Barotseland and the rest of the former Northern Rhodesia is in its death throes, after nearly five decades of misrule and neglect of Barotseland by the Zambian central government, which has seen Barotseland go from the most affluent region of Zambia to one of its poorest, and Barotseland, on the basis of public international law, is seeking formal recognition as the 55th African State. “Recognition” is the proper term, since, on the basis of pure public international law, de jure independence has existed since Barotseland chose to terminate the original Barotseland Agreement on 26 and 27 March 2012. While the separation of Barotseland from Zambia may ring of treason, the far better view from a legal perspective is that Zambia’s attempts to force Barotseland, which has had a special status in southern Africa for hundreds of years and which was previously recognized as an independent nation, to remain trapped within the Republic of Zambia without its consent is illegal as a matter of public international law. Barotseland is one of the few nations in southern Africa never to have been annexed or conquered by a European power, and the first nation north of the Zambezi River to sign a concession agreement with the British South Africa Company of Cecil Rhodes. For the hundreds of years prior to the British period, Barotse rule extended over a large region of up to 370,000 square kilometers, and the Kingdom of Barotseland governed many other tribes in the region. Barotseland’s existence as a State was recognized by the King of Italy, in an arbitration award of 1905 concerning the Anglo‐Portuguese Barotse Boundary dispute, and most legal scholars today, such as James Crawford, recognize Barotseland as a classic example of a sovereign to which “the general rules of international law were applied,” similarly to Morocco, Algeria, Tunisia, Tonga and the Kingdom of Swaziland (see James Crawford, The Creation of States in International Law, p. 263). In violation of the law of treaties, the Government of Zambia has plainly begun an attack that is designed to force Barotseland to remain within a union to which Barotseland no longer is bound. It has recently arrested Barotseland’s former Prime Minister, Clement Sinyinda, is increasing its deployment of soldiers to the nation, and the number of human rights abuses against Barotse civilians has increased dramatically. To date, over 100 independence activists have been imprisoned, and 84 were recently charged with “treason,” a misguided charge given the history and legal basis of the inclusion of Barotseland as a part of Zambia, which is punishable by death under Zambian law. The undisputed legal basis for the creation of the modern Republic of Zambia as a unitary nation formed by Barotseland and the rest of Northern Rhodesia at the time of decolonization was the Barotseland Agreement of May 19, 1964, which must be viewed as an international treaty signed by Sir Mwanawina III, OBE, then King of Barotseland, Mr. Kenneth Kaunda, the prime minister of Northern Rhodesia (to be renamed Zambia), and the Secretary of State for Commonwealth Relations and for the Colonies on behalf of the United Kingdom. At the time, the United Kingdom was overseeing Barotseland as a “protectorate,” the same legal status that had been granted to diverse countries such as Kuwait, Monaco, Andorra, Liechtenstein and Morocco. The Protectorate of Northern Rhodesia had been created through an amalgam of territories acquired through treaty, grant, sufferance and “usage” by the British South African Company of Cecil Rhodes, which was initially operated under a Charter granted by the British Crown, but was eventually administered by the United Kingdom itself. Throughout this period, the successive treaties signed by the King of Barotseland ensured Barotseland’s power over land, natural resources, regional government, and its court system, and other aspects of sovereignty that were never abandoned. These treaties were to terminate upon the independence of Northern Rhodesia, allowing the territories constituting Northern Rhodesia to proceed to independence separately. Faced with this scenario, the Interim Self‐Government of Northern Rhodesia, led by Kenneth Kaunda as Prime Minister, pressed for a new agreement with the King of Barotseland to operate as a substitute for the colonial agreements that were coming to an end, in order for Northern Rhodesia to become independent as a unitary Republic of Zambia. The net effect of the new treaty, cited as the Barotseland Agreement 1964, was simply to reaffirm the continued autonomous status of Barotseland as a condition for its incorporation into the republic of Zambia. As noted in the book The Encyclopedia of Stateless Nations, the Barotseland king only signed the Barotseland Agreement under British pressure, despite the many legal protections ensuring Barotseland’s continued autonomy that were enshrined in it. In the Barotseland Agreement, the people of Barotseland consented to be associated with the rest of Northern Rhodesia to form modern Zambia, on condition of maintaining the primary legal aspects of their sovereignty, including the recognition of the Barotseland King and his Council as the “principal local authority for the government and administration of Barotseland,” the continuation of Barotseland’s legal tribunals, the maintenance of Barotseland control over local taxation, as well as the preservation of its right to land, forests, fishing rights, game preservations, the management of the Barotseland treasury and other rights that it had previously maintained while a British Protectorate. It was also expressly stipulated in this Agreement that the Republic of Zambia would take steps to ensure that the laws of the Republic were “not inconsistent with the provisions of this Agreement.” On behalf of Northern Rhodesia, Kenneth Kaunda also recognized that “full consultation should take place with the Litunga [Barotse King] and Council before any land in Barotseland is used for public purposes or in the general interests of economic development,” and it was expressly agreed that appeals from decisions of the local courts to Zambian jurisdictions could only be made with the approval of Barotseland appellate courts. Kenneth Kaunda, who would soon become the first President of Zambia, agreed to each of these conditions and, on this basis, the King of Barotseland signed the Agreement on his own behalf, and on behalf of his heirs and successors, his Council, and the chiefs and the People of Barotseland, thereby agreeing to the union creating modern Zambia. Unfortunately for Barotseland, however, Kenneth Kaunda’s international commitments to Barotseland would be flouted, and he did everything possible to remove all aspects of Barotseland’s special autonomous status, starting very soon after independence. In October 1965, the Zambian government, under Kenneth Kaunda, first passed a law taking away the privileges and rights of the Barotse King, in violation of its obligations under the Barotseland Agreement, under the Zambia Independence Act and Zambia Independence Order. In 1969, President Kaunda then unilaterally announced that Barotseland would be renamed “Western Province,” in a speech entitled “I wish to inform the nation.” The Government of Zambia then introduced and passed the Constitution Amendment Act No. 30 of 1969, which rather than enshrining the rights agreed to in the 1964 treaty, purported to annul it, leading to mass protests which the Government responded to with mass arrests. From 1969 to 1970, the Government of Zambia then passed the Western Province (Land and Miscellaneous Provisions) Act No. 47, which stripped Barotseland of its powers over its land and, instead, vested them within the power of the President of Zambia as Zambian Reserves of Barotse nationals. Such acts in violation of the spirit and the letter of the Barotseland Agreement have continued to this very day, despite the many protests on the part of Barotseland, including the King of Barotseland’s warning in 1994 that they expressly reserved the “right to revert to their original status.” The leaders of Zambia must understand that their past attempts to change the Constitution of Zambia, in order to negate the existence of Barotseland, merely represents changes to municipal law, which do not possess the legal force of interational treaties like the Barotseland Agreement of 1964. This is a basic principle of international law, as is the principle of pacta sunt serva, literally “agreements must be kept,” which is clearly not what occurred with respect to the Barotseland Agreement. Under Article 60(3) of the Vienna Convention on the Law of Treaties, a material breach is a repudiation of a treaty by a party, or a violation of a provision essential to the object or purpose of the treaty, which entitles the other party or parties to invoke the breach as a grounds for terminating it. As noted by the International Court of Justice in the ICJ’s Gabcikovo ‐Nagymaros (Hungary/Slovakia) case of 1997, the breach must already have occurred for the termination to be legal. Zambia has not only violated each of its obligations under the Barotseland Agreement by denying the obligations it owed to maintain the special autonomous status of Barotseland and neglecting its obligations to assist in its economic development, but its unilateral attempt to renounce the Barotseland Agreement and to deny its very existence is clearly a repudiatory breach of it, granting Barotseland the right to terminate it once and for all should it wish to do so. Barotseland chose to exercise its right to terminate the original Barotseland Agreement on 26 and 27 March 2012, when a National Council, representing the people of Barotseland, formally recognized the abrogation of the Barotseland Agreement by the Zambian Government, freeing it from its union with Northern Rhodesia, and noting the natural consequence that it had been restored to the status of an independent nation. Barotseland is in the process of taking the necessary steps to become a fully‐recognized member of the international community, and has requested that Western Governments, especially the former colonial power, Great Britain, which is a signatory to the initial treaty that created the union between Barotseland and the rest of Northern Rhodesia, urge their Zambian counterparts to free all Barotse political prisoners and then comport themselves in respect of human rights law and international legal standards. Both States will clearly be better off if they choose the path of Czechoslovakia, smoothly transitioning into two States on the basis of negotiations, rather than becoming the next Yugoslavia or Biafra. It would indeed be a success story for the increasingly modern and prosperous Africa, and a sign of its maturity, if two States could peacefully revert to independence. Although Barotseland’s struggle does not concern economic nationalism, there are various consequences that do necessarily flow from its decision to revert to independence. Namely, Zambian concession agreements negotiated that concern Barotseland land or mineral rights are technically invalid since at least March 27, 2012, since the Zambian State lacked the legal capacity to make them. While Barotseland’s representatives have expressed a willingness to honor the commitments contracted by the former Zambian Government, those contracts must plainly be entered into with the chosenrepresentatives of Barotseland, or face the consequences of illegally operating in a State without its consent. Another consequence of the termination of the Barotseland Agreement is that Zambia’s recent arrest of the former prime minister of Barotseland may best be seen as the arrest of an ex‐diplomat of a foreign State, and sending soldiers into Barotseland may be legally qualified as a foreign occupation. These are hostile acts on the part of Zambia and, in addition to reserving the right to seek compensation for economic harm, Barotseland has put Zambian politicians, soldiers, policemen and other armed groups on notice that their prosecution will be sought for all criminal acts performed by Zambians falling within the scope of the Rome Statute of the International Criminal Court to which Zambia is bound. There is nothing sacrosanct with respect to the combination of Barotseland and Northern Rhodesia into modern Zambia, with the encouragement of British Colonialists who appear to have done so purely for the sake of their own administrative efficiency. One may hope that the Republic of Zambia recognizes its obligations under international law to cooperate with the newly‐proclaimed independent State of Barotseland, and that it has the diplomatic maturity to recognize that the two independent nations would be better off by respecting international law, and living harmoniously as they did prior to the Barotseland Agreement of 1964, which appears to have been a noble, but failed, experiment. ‐ William Kirtley, Partner at the international arbitration law firm Dugué & Kirtley AARPI, on behalf of the Barotseland National Freedom Alliance.