June 16, 2015

Ref: ACHPR/COMM/429/12/ZAM731/15

Secretary to the Commission
African Commission on Human and People’s Rights
31 Bilijo Annex Layout, Kombo North District
Western Region,
Po Box 673
Banjul, The Gambia

  By email and DHL

  Dear Dr. Maboreke,

 

Communication ACHPR/COMM/429/12/ZAM—The Ngambela of Barotseland and Others v. Zambia

Additional comments and observations on admissibility

  I wish to acknowledge receipt of your even reference communication dated May 14, 2015 and the accompanying copy of submission by the Respondent State on admissibility of our Communication. We received your communication on Tuesday June 2, 2015 as per attached transcript of shipment.  

We have decided to exercise the option of commenting on the Respondent State’s submission in accordance with Rule 105(3) of the Rules of Procedure and forward herewith our comments and observations.  

Yours sincerely,

Signed

Tawila Akapelwa Silumbu

Office of the Ngambela

ACHPR/COMM/429/12/ZAM731/15

COMM/429/12/ZAM-The Ngambela of Barotseland and Others v. Zambia

ADDITIONAL INFORMATION AND OBSERVATIONS

ON ARGUMENTS BY THE RESPONDENT STATE ON ADMISSIBILTY

  We hold the Respondent State’s assertion that our Communication is inadmissible as misguided because it is founded on misapplication of relevant statutes and precedents as well as misrepresentation of facts. In demonstrating this position, we present the following observations and comments on the Respondent State’s submission:
   
1. Violations of Human Rights

  The Respondent State’s contention as stated on page 2 of its arguments, in particular to the effect that “There are no allegations of specific breaches of human rights guaranteed under the African Charter to the point that the territorial integrity of the Republic of Zambia can be called to question” as provided by Article 20(1) of the African Charter, exhibits its failure to correctly interpret the term ‘human rights’. It is our submission that the people of Barotseland had chosen to exercise self-determination within the framework of a unitary state of Zambia as an autonomous region under the terms of the Barotseland Agreement 1964, which is marked BoD11(a) in our Communication. Specifically, Clause 4 of the said Agreement is illustrative of this point. Article 20(1) of the African Charter guarantees the people of Barotseland continued subsistence under those terms. The unilateral termination of the Barotseland Agreement 1964 by the Respondent State took away the right of autonomy from the people of Barotseland and, therefore, it is a material violation of the African Charter by the Respondent State.  

Further to the foregoing, we have tabulated other legislative measures undertaken by the Respondent State in continued violation of the rights of the people of Barotseland such as those marked BoD4(a), BoD4(b) and BoD7 in our arguments on admissibility.  

We consider that the Respondent State’s failure to perceive these actions as violations of human rights is a deliberate action to circumvent the principles of governance at the continental level of the African Union in the same manner it has done internally in respect of Barotseland. We, therefore, submit that our Communication has all the ingredients for admissibility before the Commission.        

2. Cited Precedents

  In respect of Communication 162/97, Mouvement des Refugies Mauritaniens au Senegal, Eleventh Activity Report 1997-1998, Annex II, page 3, paragraph 1, our observation is that the Respondent State is using the precedent out of context. In the case cited, the Commission did not establish a prima facie case on account of failure by the complainants to pinpoint specific violations of human rights. In our case, the Commission has, rightly, established a prima facie case from the facts contained in the Communication which pinpoint specific violations of human rights. As stated above, the Respondent State’s failure to see its wrong doing stems from being engrossed in an abyss of pretense and self denial, a syndrome which it hopes to export into the echelons of the African Union.  

In relation to Communication 1/88, Frederick Korvah v Liberia, African Commission on Human and People’s Rights, Seventh Activity Report 1993-1994, Annex IX, as raised at page 3, paragraph 2 of the Respondent State’s argument, our foregoing comments apply.  

On the matter of Communication 75/92, Katangese People’s Congress v. Zaire (2000) AHRLR 72 (ACHPR 1995), cited by the Respondent State at page 3, paragraph 4, our observation is that it does not apply to our Communication. The Katanga region had no prior autonomous status whether before or after independence in Zaire which had evolved as a monolithic state. In the case of Barotseland, it had a separate existence as an African Kingdom for nearly five centuries and had long been recognized as a nation which was a subject of international law and was a self-governing British protectorate during the colonial period. The existence of Barotseland as a nation is signified by standard insignia of statehood namely: National Anthem, Flag, Coat of Arms and Church of Barotseland.  

Barotseland is still cited in James Crawford´s international textbooks as a classic example of an indigenous Nation that was a subject of international law. Barotseland was recognized by international law to the extent that it entered into treaties that protected its identity and autonomy, as far back as 1900. These treaties persisted until independence in 1964. Had the people of Barotseland wished, Barotseland could have become a sovereign nation in 1964. Had the people of Barotseland known the treachery and serious human rights abuses that would be inflicted upon them for the subsequent five decades, they would not have entered into a union agreement with the Northern Rhodesia government to form Zambia.  

Barotseland joined the British protectorate of Northern Rhodesia in 1911 for administrative convenience via a treaty which legally recognized its autonomy as a protectorate that happened to be within a larger protectorate. When independence from the British was due, Barotseland chose to be an integral part of Zambia via a successor treaty cited as the Barotseland Agreement 1964. On the basis of this Agreement, the unitary state of Zambia was set up as per Section 1 of the Zambia Independence Act marked BoD12 in our Communication. It is our contention that a unitary state is divisible when the terms under which it was formed are repudiated by any of the parties. Further, it is our contention that whilst the Charter of the Organization of African Unity mandates it to uphold the sovereignty of member states, it is not intended to condone illegality relating to violations of the principles upon which their sovereignty and territorial integrity are founded. In this regard, it is the Respondent State that is in violation of the Charter of the Organization of African Unity and its successor continental authority, the African Union.  

The Respondent State’s repetitive arguments on Page 4, paragraph 2, have been covered by the foregoing comments.  

3. Participation of the Barotse in Government Positions

  With regard to the Respondent State’s position in respect of participation in government as stated at page 3, paragraph 3 of its submission, our comment is that it is out of context and irrelevant. Our contention centers on the termination of the Barotseland Agreement 1964. The route taken by the Respondent State was unconventional because the Agreement was a treaty between Barotseland and the Northern Rhodesia government which found its way into the Respondent State’s Constitution as reflected at BoD13 of our Communication for purposes of implementation. The Constitution of the Respondent State did not create the Agreement. The territorial integrity of the Respondent State is a derivative of the Agreement. Termination or alteration of an agreement is only legally tenable if all the parties consent to the action, which was not the case. A party to an agreement cannot unilaterally legislate against its obligations under the agreement, to the detriment of the other party, without suffering specific consequences. These consequences include withdrawal of the injured party from its obligations under the agreement. Accordingly, the actions of the Respondent State freed Barotseland and its people from the obligations to submit to and uphold the sovereignty of the Respondent State as established at independence. In holding this position, we are fortified by the provisions of Articles 60 and 70 of the Vienna Convention on the Law of Treaties.  

It is also our contention that the Barotseland Agreement 1964 did not preclude the participation of the Barotse in the national government of the Respondent State, as the idea of a unitary state is that the central government draws personnel from all constituent parts of the nation notwithstanding the powers reserved for the constituent parts in the running of their regional affairs. This was the case with Barotseland vis-à-vis the Respondent State. Therefore, the fact that a few people from Barotseland get appointed to seats in the government of the Respondent State does not, even in the remotest sense, compensate for our loss of regional autonomy.  

4. Evidence on Killings of Barotse Youth

  On page 4, paragraph 3, relating to evidence of unprovoked arrests and killings of Barotse youth by state agents, the Respondent State has not at any time challenged the media reports. We note that in appreciating the gravity of the matter, the Respondent State had appointed a Commission of Inquiry led by prominent lawyer, Dr. Roger Chongwe SC, to probe these ghastly occurrences. However, the Respondent State has kept the report of that Commission under lock and key for fear of the consequences of its contents. Nonetheless, the Respondent State had let the cat out of the bag when the late President Michael Sata, during the ceremonial handover of the report to him aired on national television, reacted to its contents with a rhetorical question addressed to the Chairman of the Commission of Inquiry as to whether the public officers named in the report as having been responsible for the killings of the youth should be prosecuted. The President, further, indicated that he was not going to accept the recommendation for the restoration of the Barotseland Agreement 1964. Later, in a paid for television interview, the then Secretary General for the ruling Patriotic Front party, Mr. Wynter Kabimba, castigated the Commission of Inquiry for recommending the restoration of the Barotseland Agreement. We suggest that the Commission subpoenas the Report of the Chongwe Commission of Inquiry into the Mongu Riots of January 14, 2011. In this respect, we stand by the assertions in our Communication.  

5. Exhaustion of Local Remedies

  On the matter of exhausting local remedies raised at page 4, paragraph 4, we submit that Clause 9 of the Agreement, which provided for any of the parties to go to court was only applicable when the Agreement was in force. Upon the unilateral termination of the Agreement by the Respondent State, through the constitutional amendment marked BoD5 in our Communication, the judiciary route was closed because courts as creatures of the constitution cannot overrule its provisions.  

The only open avenue was the political route which has been exercised in futility over the 43 years from 1969 as exhibited by BoD6(a) to a period prior to our acceptance of the repudiation of the Barotseland Agreement 1964 through the Barotse National Council of March 27, 2012, marked Annex 16 of our Communication. It is on record that the people of Barotseland have taken every opportunity to make spirited and passionate submissions in favor of the reinstatement of the Barotseland Agreement 1964 whenever the Constitution of Zambia was reviewed. These efforts, and the subsequent reactions of the Respondent State, are summarized below:  

Summary of Constitutional review Commissions of inquiry and their outcomes
Year Name of Commission of Inquiry Submission by the people of Barotseland Recommendation of the Commission Government reaction through white paper
1972 Chona Expressed concern over the abrogation of the Agreement All British independence instruments should cease to apply Agreed by promulgating CAP27 of 1973
1991 Mvunga 126 petitioners demanded for the restoration of the Agreement Parties to the Agreement to resolve the matter through negotiations Rejected
1995 Mwanakatwe Reinstatement of the Agreement The Barotseland Agreement 1964 is a matter of national priority which would require the government and the representatives of the Barotse Royal Establishment to begin negotiations in an effort to reach an agreement This is not acceptable because this Agreement was Abrogated by the Constitution (Amendment) (No. 5) Act of 1969
2005 Mung’omba Barotseland Agreement should be restored and incorporated in the Constitution The issue of the Barotseland Agreement be settled by negotiations between the Government of the Republic of Zambia and the Barotse Royal Establishment Referred to National Constitutional Conference
2007 National Constitutional Conference Restoration of the Agreement The Agreement should not be part of the Constitution of Zambia Accepted
 

In addition to the foregoing, the following political and administrative initiatives were undertaken:

 

i. During the Kaunda tenure from 1964 to 1991 there were several overtures and talks most of which were ignored save for the three rounds of talks between 1990 and 1991 when Kaunda, under pressure of a looming electoral defeat, wrote the letter marked Annex 17 of our Communication.  

ii. During the Chiluba tenure from 1991 to 2001, there were three rounds of talks which culminated in the letter from the Minister Without Portfolio, Brigadier-General Godfrey Miyanda, marked BoD8 in our Communication.  

iii. Annexes 7-13 of our Communication exhibit efforts made by Barotse civil society organizations which have been disregarded by the Respondent State.  

The action suggested by the Kaunda regime in his letter referenced in (i) above was discarded by his successor who, after three rounds of discussions with the Barotse delegation led by the Ngambela (Prime Minister), declined to consider implementation of the Agreement which was declared statute stale. Therefore, it is the Respondent State that declared its territorial integrity statute stale. Accordingly, the Respondent State cannot turn round to seek territorial integrity which it has thrown away.   The foregoing demonstrates that we have attempted all available local remedies. Therefore, it is misleading for the Respondent State to claim that we have not exhausted local remedies or that we have abandoned them prematurely. In this regard, 18 overtures were made to persuade the Respondent State to remedy its violations.  

We cannot be expected to continue seeking internal remedies in futility. It is our position that more than enough has been done internally to seek resolution of our matter and it is time to move on to the next level. In taking this position, we are fortified by Article 56(5) of the African Charter as read with rule 93(2)(i) of the Rules of Procedure of the Commission. Accordingly, our Communication is admissible on account of the provisions of the African Charter as cited herein.  

6. Plea for Time to Remedy Violations

  In respect to page 5, paragraph 1, where the Respondent State pleads for more time to “remedy its violations, if at all any, against our rights”, our comment is that the Respondent State cannot be entrusted with the task of remedying violations which it fails to recognize as violations. It is abundantly clear, from its own submissions, that the Respondent State remains unrepentant over the matters raised in our Communication and will not be a willing party to the resolution of the issues as long as it has control of the state apparatus. Therefore, the Respondent State’s plea for an opportunity to remedy its violations should not hold because time for this has passed, as clearly demonstrated by the missed opportunities illustrated in Section 5 above. We see this as nothing but a demonstration of its desire to persist in inconsistencies displayed throughout its submission.  

7. Application of the African Charter to the Barotseland Agreement 1964

  In respect to page 5, paragraph 2, where the Respondents State argues that the Barotseland Agreement 1964 came into force before the period of the application of the African Charter thereby rendering our Communication inadmissible, we submit that the African Charter is a product of the Organization of African Unity (OAU) which came into force in May 1963. The OAU was succeeded by the African Union in 2001. The mandate to uphold and promote observance of human rights in Africa falls within the Charter of the OAU as provided by Article 2 which was established before the Barotseland Agreement 1964. Moreover, the sanctity of the African Charter is also drawn from the Charter of the United Nation of 1945 and the Universal Declaration of Human Rights of 1948 as stated at paragraph 4 of the preamble of the African Charter, which all predate the Barotseland Agreement of 1964. The adoption of the African Charter on Human and Peoples’ Rights on June 27, 1981 and its coming into force on October 21, 1986 was an action by the OAU to enhance its work on observance of human rights in Africa. Enforcement of human rights lies with the OAU and its successor, the African Union (AU). Therefore, it is our position that enforcement of human rights in Africa did not start in 1986 when the Commission came into being as a specialized organ for carrying out this important mandate of the OAU and its successor continental authority, the AU.  

Further to the foregoing, it is our submission that Article 56 of the African Charter defines the nature of cases which the Commission can be seized with under Sub-Article 7, and violations occurring before the coming into force of the Charter are not excluded. In the light of the foregoing, our Communication is admissible. Therefore, the Respondent State’s reliance on Article 28 of the Vienna Convention on the Law of Treaties is out of context in view of the mandate of the Commission being drawn from the Charter of the OAU.  

The Respondent State’s repetitive arguments on page 6, paragraphs 1, 2 and 3 deserve no further comments as they have already been taken care of by the foregoing comments and observations. In particular, Article 56 of the African Charter does not preclude violations that occurred before its coming into force.    

8. Conclusion

  We respectfully submit that our communication meets the criteria established by the African Charter and its Rules of Procedure and, therefore, it is admissible. We reiterate our prayer as stated in our Communication.    

Dated at Mongu-Lealui on this ………16………… day of ……June………………….2015

       

Signed

Tawila Akapelwa Silumbu

Barotse Royal Establishment

Office of the Ngambela