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 DuguĂ© & Kirtley AARPI, on behalf of the Barotseland National Freedom Alliance.

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