By Malama Katulwende
The “Barotseland Freedom Movement” (BFM) last month engaged the Zambia Police Service in skirmishes which subsequently transformed the serene, provincial capital of Western province, Mongu, into a field of battle.
Exasperated by the Zambian authorities’ refusal to allow the group to hold a meeting over the status of the “Barotseland Agreement 1964” at the Blue Gum, the “freedom fighters” ran wild and destroyed property worth millions of kwacha.
Press reports indicate that the combatants and the police officers alike sustained serious injuries – with at least two deaths. Although several arrests have since been made, the Zambian government has not yet laid formal charges against perpetrators of the violence. It is likely, however, that they will be charged with “riotous conduct likely to cause the breach of peace” rather than treason.
In today’s column, we take a critical look at the Mongu riots. To perceive better the landscape of the problem we are about to explore, let us ask some questions.
How can we explain the causes of this debacle and the desire of a group of Lozi people to threaten the Zambian government with hoisting the “Barotseland flag” over Western province should the authorities refuse them the “right” to resolve the impasse over the “Barotseland Agreement 1964”?
Does the Agreement refer to the “right to secede” in case of a breach, or what are the most relatable arguments around the “reinstatement” of it in the Zambian Draft Constitution?
What potential threats and opportunities exist for the “recognition” of the “Barotseland Agreement 1964”?
In their submissions to the National Constitutional Conference (NCC) in Lusaka, the Barotse Royal Establishment (BRE) demanded the acknowledgment of some provisions in the “Barotseland Agreement 1964” in the new Draft Constitution.
The BRE noted that the Draft Constitution 2010 did not consider the provisions of the “Barotseland Agreement of 1964” and proposed that Articles of the Constitution which define Zambia as a unitary state should acknowledge the “Barotseland Agreement 1964” to be the instrument by which the unitary state was constituted.
In particular the BRE said Part II of the Draft Constitution 2010 was not inclusive and proposed that Articles 4 (2), (3) and (5) be recast. They argued that the text of Article 4 (2), which establishes Zambia as a unitary, multi-ethnic and multi-cultural democratic state, had to be changed to reflect the origins of the unitary state. They submitted that in order that for clause three of Article 4 to make sense, it had to be supported by the acknowledgment of the “Barotseland Agreement 1964,” which enforces the unitary and indivisibility of the state.
Further, the BRE argued that Clause three of Article four which reads, ‘the Republic of Zambia shall not be ceded, in whole or in part, to another country’ was unnecessary because it underlined the overprotection of the indivisibility of the unitary state.
They also said Article 4(5), was targeted at the Barotseland which, according to the BRE, was the only region of Zambia that had a clear right to establish a regional government.
Clause 5 of this article says: ‘The establishment of a new state within the territory of the Republic of Zambia is prohibited’. They contended, however, that the right of forming a regional government preceded the birth of the Republic of Zambia and was, therefore, not bestowed on Barotseland by Zambia.
The BRE also submitted that Article 213 (1) of Part XII of the Draft Constitution was inadequate as far as legislation for provincial, districts and local authorities’ administration was concerned. They proposed that that aspect of government administration had be placed under the Litunga (King of the Lozi people) and the Council as per Barotseland Agreement of 1964.
“Accordingly, for Western province (Barotseland), the power given by the Constitution to Parliament to legislate for administration of provinces, districts and local authorities should be made subject to the provisions of the Barotseland Agreement 1964 as enshrined under Clause 8 of the Barotseland Agreement 1964.”
Clause 8 of the Barotseland Agreement of 1964 states that: “The Government of the Republic of Zambia shall take steps as may be necessary to ensure the laws for the time being in force in the Republic are not inconsistent with the provisions of this Agreement”.
Furthermore, the BRE also condemned Article 290 (2) of Part XIX of the Draft Constitution, saying it had failed to include land vested in the Litunga within the definition of customary land. They therefore proposed that Clause II of Article 290, which defines customary land, should be amended by inserting land vested in the Litunga as part of the customary land.
“Under Article 293 (1), the powers of the President over minerals and petroleum should not be so sweeping as to override the existing powers of the Litunga over land in Barotseland,” read the submissions.
The BRE further suggested that this article should therefore be re-aligned with the provisions relating to the control of land in Barotseland.
We have cited the submissions of the BRE to demonstrate the context for a dispute between the government of the Republic of Zambia, on the one hand, and those that seek the “reinstatement of the “Barotseland Agreement 1964” on the other hand.
There is no doubt, though, that a clash has been in existence since 1964.
In order to provide the reader with an opportunity to grasp the import of these submissions, let us cast everything in the framework of the provisions of the “Barotseland Agreement 1964”- though in summary format.
What did it say?
Why was the Agreement made?
The “Barotseland Agreement 1964” of 18th May, was concluded on the understanding that the Government of Northern Rhodesia (later Zambia), the Paramount Chief, Lewanika of the Lozi people, and Honourable Duncan Sandys of the British Colonial Office desired that Northern Rhodesia should proceed to independence as one nation. Although the Agreement was not included in the new Republican Constitution, some provisions of the Republican Constitution were included in “The Barotseland Agreement 1964”. These related to the protection of human rights and fundamental freedoms of the individual, judiciary and public service.
The Paramount Chief was authorised and empowered to make laws for Barotseland in relation to the Barotse Native Government; the Barotse Native Authorities; the Barotse Native Courts; the status of members of the Litunga’s Council; local government; land, forests, traditional and customary matters, fishing, control of hunting, game preservation, control of bush fires, supply of beer, local taxation, reservation of trees for canoes, Barotse Native treasury and festivals.
According to the BRE, BFM and other supporters of the Agreement, the Republic of Zambia has breached the “Barotseland Agreement 1964” in several respects.
Let us now analyse the most important aspects of these breaches.
(1) The Local Government Act of 1965 empowered the Central Government to create local government administration structures. Part XI of the Act made special provision with respect to Barotseland. The Local Authorities which were thus created were directly under the control of Central Government, through the Ministry of Local Government. District Councils in Bulozi such as Mongu, Senanga, Kalabo, Sesheke, and so on, were set also up. Funds held in the Barotseland Native Treasury were transferred to the Barotse Local Government Fund.
On November 1, 1965 the new Government abolished the Barotse Native Council, which had resisted new changes. The impact was the reduction in the powers of the Litunga and his administrative structures. The Barotse Native Courts, for example, were incorporated into the central government’s Ministry of Justice, making Lozi personnel answerable to the Minister and not the Litunga.
In the same year the Government announced that capital projects in Bulozi would be done through its offices and not the Barotse Native Government. And with regard to the Civil Service and Public sector, the Central Government also held the responsibility to appoint and control civil servants and public officers who worked freely in Bulozi on conditions similar to what obtained elsewhere in the country.
(2) The Chiefs Act of October 1965 empowered the Republican President to recognise or withdraw recognition from any chief in Zambia in the interest of peace, order and good governance. The Litunga was explicitly mentioned. The Government would determine the subsidies to be paid to any chief and family and household. This made all chiefs in the country dependent on the government.
(3) The Matero Economic Reforms of 11th August 1969 compelled all mining companies operating in Zambia to offer the state the right to buy 51% of their shares, while all rights of ownership or partial ownership of minerals in Zambia reverted to the state. All mining concessions obtained through traditional chiefs and other institutions before independence were cancelled.
By implication, therefore, the Litunga lost all the rights to determine the conditions for prospecting licences, mining and also the right to claim royalties on minerals. It was determined that the rights that applied to the Litunga should not be different from any that obtained anywhere in the Republic.
(4) The Constitutional Amendment Act of October 1969 terminated “The Barotseland Agreement 1964”.
The above analysis, and what follows later, has been based on work by Gerald L. Caplan, L.H Gann, Richard Hall, A.D Jalla, Mutumba Mainga, David C. Mulford,Robert Rotberg, Malama Katulwende, The Bledisloe Report of 1939, the “Barotseland Agreement 1964”, The Constitution of Zambia, and the Draft Constitution of the Republic of Zambia, respectively.
Having said this, however, let us now try to develop some arguments which pose very serious challenges to the “reinstatement” of the “Barotseland Agreement 1964” in its current form.
In the first place, the Agreement refers to “the Litunga of Barotseland and his Council [having] the powers hitherto enjoyed by them in respect of land matters under customary law and practice [and] the courts at present known as the Barotse Native Courts [having] the original jurisdiction (to the exclusion of any other court in the republic of Zambia) in respect of matters concerning rights over or interests in land in Barotseland to the extent that those matters are governed by the customary law of Barotseland: Provided that nothing in this paragraph shall be construed as limiting the jurisdiction and powers of the High Court of the Republic of Zambia in relation to writs or orders of the kind at present known as prerogative of writs or orders.”
The two clauses imply that the Litunga shall enjoy the ownership of land and mineral rights in Barotseland.
Yet according to records of the British South Africa (BSA) Company, claims of mineral and land rights as granted them by Chief Lewanika extended all the way to the Copperbelt province. In 1964 the Northern Rhodesian nationalist government (of Dr. Kenneth Kaunda) successfully disputed the BSA’s claims to mineral royalties in Northern Rhodesia.
The Government demonstrated that Lewanika’s territory in 1890 and after did not include the Copperbelt area, and therefore the Company could not lay claims to mineral royalties in that area on the basis of the Lochner Concession of 1890 and later agreements with the Lozi Paramount Chief, Lewanika, who had lost sovereignty as King to the Queen and Her Majesty’s Government, by virtue of the 1899 Order in Council.
The boundaries of the Barotse kingdom as, for example, reported in Francois Coillard’s work, The Frontiers of the Barotse Kingdom, ‘On the south, the Zambezi and the Chobe Rivers, on the west the 20th degree longitude east, on the north, the watershed of the Congo and the Zambezi rivers, on the east the Kafue river’ including, later on, claims to areas as far as Lake Nyasa and the Tanganyika plateau, were criticised for their distortion and exaggeration of the extent and influence of the Lozi kingdom. Some of the tribes listed as subjects of the Litunga such as the Lunda and Luvale respectively have since disputed such claims as farfetched.
To give a further example, the Administrator of North-Eastern Rhodesia, Cadrington, seems to agree in an answer to Wilson Fox, Secretary of the British South Africa Chartered Company in March 1904, that such claims of land and territorial rights by Lewanika were ridiculous. We should also recall that the concessions signed in the name of Her Majesty the Queen and Her Government with African Chiefs were often deceptive and later repudiated.
For instance King Lobengula said of the Rudd Concession that ‘[it] contained neither my words nor the words of those who got it.’ And the missionary, Coillard writes of the Ratifying Treaty with Lewanika in 1900 that: ‘the poor natives [Lozis] do not understand the situation…It makes me tremble…’
An address to the Northern Rhodesian Parliament by Roy Welensky of March 22, 1948, echoes the same sentiments. The authenticity and authority of treaties between African chiefs and mineral hunters and companies are vulnerable to doubt.
The question is: what are the correct geographical boundaries of “Barotseland”? Would the Litunga have control over the mineral rights in parts of the Copperbelt, Eastern and Northwestern Zambia?
Secondly, in disputing Article 4(5) of the Draft Constitution which reads, “The establishment of a new State within the territory of the Republic of Zambia is prohibited” the BRE submitted that Barotseland was the only region of Zambia that had a clear right to establish a regional government. They argued that the right of forming a regional government preceded the birth of the Republic of Zambia and was, therefore, not bestowed on Barotseland by Zambia.
Supposing that this argument is valid, the question may be asked as to how this right to establish a regional government in Barotseland was bestowed upon the Litunga? Who granted him the rights over land, minerals and other resources in a territory known as Barotseland?
In his work “Bitterness” (New York: 2005), Malama Katulwende argues that the “constitutional status” of Barotseland as an autonomous territory is shrouded in controversy.
We quote: “How far in history must you go to fix your [land] claims? The Lozi suppose Barotseland to be theirs by right but too quickly forget that what they call ‘ours’ has not always been theirs historically, nor can they justify the rational basis of this claim to the territorial ownership of Barotseland on agreements with the British South Africa Company, or the British Government. [The] question is, if the Lozi were called foreigners, [Luyi or Luyana by locals who they invaded] why should they claim that land?
On the other hand, assuming that ownership through the use of force legitimises Lozi claims, then why shouldn’t the Republic of Zambia use force or whatever means to legitimise its claim over Western province? What should be the standard criteria of land ownership and why?
We say this because it is a fact of history that a Bantu people known as the Luyi migrated from the Congo Basin or the Luba-Lunda of Mwata Yamvo. They moved south down the Kabombo River in the 18th Century, and found other Bantu such as the Sotho, Shona and Nguni already living in the land we now call Western province (or Barotseland). The new inhabitants conquered the locals. The Twa or Kwengo were driven south.
By the 1800 AD the migrants had founded the Barotse nation with their greatest chief known as Mulambwa, who ruled from 1812 – 1830. However, the conquered tribes of early Bantu had settled in the Zambezi plains by 1300AD, and these existing inhabitants called the Lozi, Luyana or Luyi – which means, foreigners. Barotseland was formerly known as Ngulu.
Now if the Litunga and his people – just as Mwata Kazembe of the Luapula Lunda, Chief Chitimukulu of the Bemba and Mpezeni of the Ngoni – originated from elsewhere and settled into Zambia through conquest of other people who had lived there for centuries, how can their rights over the territory they later occupied be justified?
Thirdly, although the Northern Rhodesian Law recognised some obligations to the “Barotse nation” under the 1936 Barotse Native Ordinance, the Barotse Native Authority Ordinance and the Barotse Native Government, this policy of deference did not mean (in absolute terms at least) that Barotseland was an autonomous state.
At no time in history has the region been a separate, independent entity from British control during the colonial period. As a matter of fact, the British Government utterly rejected several demands for “secession” between 1960 and 1964 by members of the BRE who feared the future of the Litungaship in a Black Nationalist government of Zambia.
As an alternative, the British Government facilitated the transfer of the rights, responsibilities and obligations which they had on Barotseland to the new government. Hence in 1963 – the year before the independence of Zambia – the Barotse ‘government’ presented a memorandum which proposed a new question of reinstatement other than secession from Northern Rhodesia. This was what would be known as the “Barotseland Agreement 1964”.
As we have pointed out before, under this Agreement all responsibilities and obligations between the British Government and Barotseland were duly terminated.
The Agreement, nevertheless, should not be taken to be an instrument from which to derive the right to the secession of Barotseland from the rest of the republic as members of the “Barotseland Freedom Movement” had been advocating. The Agreement was an instrument which provided a platform for the co-existence between two polities – the Litunga and the Central Government of Zambia.
Fourthly, the facts of history demonstrate that all traditional chiefs in Zambia did not welcome colonialism with open arms: they resisted it through wars and other forms of passive resistance. Although the chiefs did not sign agreements to become part of Northern Rhodesia (Zambia,) they might also argue convincingly that their kingdoms existed before colonialism. Therefore, their right to organise their own governments preceded the creation of the sate of Zambia.
“Zambia” as a state is a legacy of colonialism. Now there is a serious danger that the full “recognition” of the “Barotseland Agreement 1964” and implementation could lead to the disintegration of the country and possibly a civil war as other chiefs would also want to “secede”.
Or if not actually secede, they might also ask for autonomy. What would prevent Mwata Kazembe from claiming that his ancestors had no desire to be part of Northern Rhodesia (Zambia)?
The impact of this might spread to other nations such as Botswana, Angola and Namibia, respectively, whose small, minority populations may perhaps want to annex their traditional territories to Barotseland. Ultimately, this would lead to the redefinition of boundaries.
Fifthly, it may be argued that demands for the “restoration” of the “Barotseland Agreement 1964” are not supported by the majority of ordinary Lozi but by the Barotse Royal Establishment (BRE) and some power hungry “radical” groups such as the BFM who have failed to influence events at the national level.
On the contrary, just like their ancestors were used by the Barotse Royal Establishment (BRE) to provide slaves and tribute labour for an extensive agricultural system and other public works in Barotseland (read Max Gluckman), so would ordinary Lozi stand to lose from the reinstatement of the “Barotseland Agreement 1964.”
It promises them an illusion of “freedom”. However, the Barotse citizens would have a lot to fear from the absolute powers of the Paramount Chief. Barotseland would be like a closed polity such as Mswati’s Swaziland where the citizens live in fear of the King who does not respect human rights, abuses the treasury and is not answerable to anyone. We know from historical accounts that the Litunga’s rule cannot be contested.
Sixth point, the restoration of the “Barotseland Agreement 1964” could have serious repercussions in the administration of local government in Barotseland. As things stand now, Zambia is not a federal state in which the provinces exercise powers of local administration. The policy framework and implementation strategies come from the top to the bottom.
In other words, the Central Government makes decisions and pass on everything to line-ministries for implementation and monitoring in the provinces. Given that scenario, then, how would the Central Government’s development policies and strategies be aligned to that of the Litunga?
Would the Paramount Chief allow auditors to scrutinise the books of accounts for the prudent management of public funds?
Suppose that some funds were either misappropriated or misapplied, would the Litunga be subject to the “abuse of office” clause and stand trial?
Would the provisions of the Financial Regulations Act which applied in Zambia be suspended in Barotseland? What would be the relationship between the policy framework of the Central Government and the BRE?
We know, for instance, that one of the reasons why the UNIP government introduced the necessary legislation to curtail the powers of the Litunga and other chiefs in Zambia was to make the implementation of government programs faster and more efficient by reducing areas of conflict. In Bulozi, for example, there was a case of funds which were not accounted for although the Central Government had remitted the money for capital projects.
Lastly, the constitutional differences which exist between the Central Government and the Paramount Chief Lewanika of Barotseland would make the relationship between the two parties very difficult to manage. The Litunga rules by decree, or so we understand, whereas the government of the Republic of Zambia is a democracy whose leaders renewed their mandate to govern after elections. Their tenure is subject to their performance in office. Suppose the Litunga made a law which stood in conflict with the Republican Constitution and the culture of democracy in general, would the Central Government repudiate that law?
Would the laws crafted by the Litunga and his Council be always subject to the Laws of Zambia and the Jurisdiction of the Courts of Zambia, or would the monarch be allowed to frame whichever laws he liked?
We have presented the issue of the “Barotseland Agreement 1964” in its historical and legal forms.
It is true that the Zambian Government has breached parts of the Agreement since the document’s signing 46 years ago.
For instance, the powers of the Litunga (like all other chiefs in Zambia) have been reduced considerably in the management of land, forests and other resources. The Agreement has also not been reflected in the Constitution. In its current format, however, the “Barotseland Agreement 1964” does not grant any disgruntled party the right to secede, nor the right to riot. It refers all matters of dispute to the High Court of Zambia for arbitration.
Our considered view, therefore, is that the “Barotseland Agreement 1964” is not tenable in its current form. It poses more challenges than benefits to the unitary state of the Republic. It is our hope that the parties concerned shall dialogue over this complex matter.