A CALL FOR AN AUTHENTIC EXTERNALLY MEDIATED DIALOGUE PROCESS BETWEEN THE PEOPLE OF BAROTSELAND AND THE GOVERNMENT OF THE REPUBLIC OF ZAMBIA[1]
Dialogue before the Dialogue
BNFA COMMUNIQUÉby Clement Wainyae Sinyinda, Sitwala Namwinji Imenda and Mr. Katukula Mwiya
Table of Contents
The Barotse National Freedom Alliance (BNFA), under the Chairmanship of the Right Honourable Clement Wainyae Sinyinda—the former Ngambela of Barotseland, was established to assist in the implementation of the 27th March 2012 Barotse National Council (BNC) Resolutions. Accordingly, the BNFA assumed interest in any matters that affects the future of Barotseland and her people. In supporting the BNC Resolutions of 2012, the BNFA prides itself as a true and authentic representative of the views of the people of Barotseland because these Resolutions evolved from the submissions of the representatives of the people of all the Regions in Barotseland. Anyone who stands by these Resolutions stands by the people of Barotseland – and anyone who disowns them stands against the wishes, desires and aspirations of the people of Barotseland.
The people of Barotseland will recall that in 2012, the BNC resolved to accept GRZ’s termination of the Barotseland Agreement 1964 (BA’64) and return Barotseland to its former glory as a free and sovereign state. In the meantime, word has reached the BNFA to the effect that some secret meetings are currently underway ostensibly to prepare for a Dialogue between the Barotse Royal Establishment (BRE) and the Government of the Republic of Zambia (GRZ) concerning the future of Barotseland. It is for this reason that the BNFA feels duty-bound to make this communiqué in order to inform the Barotse nation of the stand that the BNFA has taken, concerning the mooted Dialogue Process, which is but an attempt by GRZ to circumvent with the aid of BRE the upcoming UNHCHR process. More specifically, the purpose of this Open communiqué gives the rationale and reasons why the BNFA has arrived at the decision not to participate in the proposed Dialogue process between the BRE and GRZ. The reasons are as follows:
It is for these reasons, amongst others, that the BNFA submits that any dialogue between legitimate representatives of Barotseland and GRZ, outside the mediation of a credible and neutral outside body, is bound to be fruitless. Since 1964, we have never come closer to reclaiming our sovereignty as we have come this time around. We should, therefore, not give this opportunity away by short-changing ourselves to settling for a meaningless dialogue which simply helps GRZ to circumvent the upcoming UNHCHR process and no prospect of delivering to the people that which they want—namely total freedom and self-determination for Barotseland. The BNFA has, therefore, taken the decision that Barotseland statehood can only be reclaimed and actualized through the intervention of the United Nations, as the world umbrella body whose mandate is to protect vulnerable nations such as Barotseland. In taking this decision, the BNFA is not being original. In fact, this was Resolution 7 of the 2012 BNC, which called for a third party to oversee the disengagement process of Barotseland from the territory presently known as the Republic of Zambia. Clearly, left at the mercy of GRZ, Barotseland is doomed. The GRZ must understand that it is by virtue of its actions that Barotseland now finds herself free to pursue her own destiny. At this point, it is not GRZ’s call to decide on the political future of Barotseland. Such a call must be, and has already been, made by the people of Barotseland.
The birth of the BNFA was a direct result of BRE’s change of heart by turning against the Barotse National Council (BNC) Resolutions of the 27th March 2012 (Annex I). This was confirmed by Honourable Mr. Clement Wainyae Sinyinda’s resignation as the Ngambela of Barotseland, and the attendant realisation that his resignation threatened the implementation of the BNC Resolutions (attached hereto as Annexure 1[2]). So, sensing the need for unity of purpose, following the Ngambela’s resignation, an ad hoc committee of representatives of the Barotse Freedom Movement (BFM), Linyungandambo, the Movement for the Restoration of Barotseland (MOREBA), and the Barotse National Youth League (BNYL) met on 3 February 2013 under the aegis of the Groups Liaison Committee to address urgent matters affecting Barotseland, and come up with possible resolutions on the way-forward. Out of this gathering a declaration was made that this be a foundation for a bigger all-encompassing, umbrella civil-society to spearhead the civic and political initiatives aimed at galvanizing both domestic and international support in the implementation of the BNC resolutions. Thus, the BNFA was formed in March 2013, to continue to give impetus to the implementation of the BNC resolutions. Indeed, in the intervening period following Mr. Sinyinda’s resignation, the BNFA became aware that the BRE had been brought under extreme pressure by the Zambian government in an attempt to dissuade them from pursuing the people’s resolve in respect of the March 2012 BNC Resolutions.
The fore-named civic society organisations had worked feverishly and tirelessly to ensure the successful convening and execution of the BNC and therefore, had a stake in seeing to it that the resolutions of the BNC were implemented within the spirit and letter of the Council. The civil society organisations that started working with the Ngambela in organising the BNC Conference had continued working with him in the implementation of the Resolutions that had emerged out of the Conference. Indeed, in the few months following the BNC – and working together with the same civic organisations, the erstwhile Ngambela had initiated several projects related to the implementation of the Resolutions.
At its inception, the BNFA’s Executive Committee comprised representatives of all the above-named civic organisations which were active in Barotseland before and immediately after the BNC Conference. The expectation was that, once established, this new umbrella organisation would serve as a rallying point for the hitherto discrete organisations in supporting Namuso to plan and execute the transition towards the total liberation of Barotseland, in line with the BNC Resolutions 5, 6, 8 and 9. This is the duty and responsibility which the BNFA carries and is committed in discharging without fail. On 8th July 2016, BNFA transformed itself into a mass organization.
This Communiqué starts with the Executive Summary in which the BNFA advances its stand concerning the Dialogue which is understood to being planned at the moment by representatives of both the BRE and GRZ. Next, the Submission comments on the legitimacy of the BNFA as a bona fide representative of the wishes, desires and aspirations of the people of Barotseland, before going on to briefly recap some of the achievements and milestones arrived at on the bumpy and treacherous road that the people of Barotseland have travelled since the signing of the Barotseland Agreement 1964 (BA’64) to-date. More specifically, the Submission focuses on some critical events and happenings since the 26th-27th March 2012 and the establishment of the BNFA. This is then followed by a brief on GRZ’s perpetual denials of the Lozi people’s enjoyment of their inalienable fundamental freedoms of assembly and association, and motivation for neutral mediation in the matter between Barotseland and GRZ. As the submission draws towards closure, we comment on two issues – firstly, Zambia’s challenge related to socio-political cohesion, demonstrated in the voting patterns along the Barotseland North-Western Rhodesia versus North-Eastern Rhodesia, and then Zambia’s debt trap. The Submission ends with a Conclusion on the conditions that would satisfy an authentic and meaningful Dialogue.
The BNFA’s legitimacy derives from the reason for its formation, namely to assist and stand by the 27th March 2012 BNC Resolutions, which represented the wishes, desires and aspirations of the people of Barotseland from all corners of the Barotse nation. The BNC was meticulously organised with representatives coming from all the levels of the Barotse administrative structures – village level all the way to Namuso. Furthermore, the BNC was also graced by representatives of the Zambian governments, High Commissioners and Ambassadors, as well as traditional leaders and other representatives from other parts of Zambia. It was a very democratically convened conference. Accordingly, for as long as the BNFA does not deviate from these resolutions, its stand and resolve are those of the people of Barotseland. Conversely, the BNFA believes that any organisation or body that frowns upon these resolutions and fails to embrace them cannot legitimately claim to represent the people of Barotseland.
Soon after its inception, the BNFA prioritised a number of projects, some of which were already on-going, but required follow-up activities, while others still had to be initiated and implemented. The first one was the letter of dispute sent to the Zambian government. In particular, BNFA noted that the letter had demanded certain activities to be initiated jointly by the Barotse and Zambian governments towards the final disengagement of the two territories. The second project was the application for membership of the Unrepresented Nations and Peoples Organisation (UNPO), and the third was the African Commission for Human and People’s Rights (ACHPR) petition – popularly referred to as the Banjul petition. The fourth issue, which had a much longer trajectory, but with possible shorter-term sub-projects within it, was to advance the on-going effort to engage legal experts to challenge the legitimacy of the Zambian government’s claim to continue to be the governor and chief administrator of Barotseland, in the absence of any legal instrument that unites Barotseland to the rest of the territory called Zambia. The fifth project related to widening lobbying efforts by targeting embassies, high commissions, the Commonwealth and the United Nations – as a whole, as well as targeting strategic subsidiary bodies of these highly bureaucratic organisations. The achievements made, and milestones reached, in respect of these five priorities since the 2012 BNC conference is briefly sketched below.
One very critical and overarching point of departure coming out of the BNC Resolutions as a whole was the realisation that since the ejection of the Barotseland Agreement 1964 out of the Zambian constitution there was, in fact, no legal basis for the Zambian government to masquerade as a legitimate ruler of Barotseland; that, in fact Barotseland was legally free of the Zambian government influence, except for the fact that the affairs between the two political entities had not been formerly concluded at the termination of the unitary state in 1969. Thus, one of the mandates of the BRE was to transform itself into the Barotse government and acting on behalf of the people of Barotseland, was to formerly conclude the breakdown of the aborted unitary state, leading to the re-establishment of a free and sovereign State of Barotseland. This position was contained in Resolutions 5, 6, 8 and 9 of the BNC Conference. Accordingly, the erstwhile Ngambela of Barotseland sent a letter of dispute to the Zambian government on 14th May 2012, formerly declaring a dispute between the nation of Barotseland and the Zambian government. In the letter, the Ngambela drew the Zambian government’s attention to its numerous breaches of the BA’64, as well as numerous accounts of atrocities and other violations of the fundamental rights of the people of Barotseland – political, social, cultural, economic, and others. In this regard, the Zambian government was beseeched to enter into formal termination talks with legitimate representatives of the Barotse nation on how to share the assets, as well as tackle any other attendant issues needed to conclude the failed agreement. This letter was copied to the United Nations (UN) representative and to all foreign Missions accredited to Zambia. GRZ has chosen to ignore this letter, which shows the contempt that it has always had towards the wishes, desires and aspirations of the people of Barotseland.
As head of the Barotseland administration the erstwhile Ngambela of Barotseland, the Right Honourable Mr. Clement Wainyae Sinyinda, found himself as the principal implementer of many of the BNC Resolutions. Thus, on 10 April 2012 he submitted an application for membership to the Unrepresented Nations and Peoples Organization (UNPO) on behalf of Barotseland, with a view to benefitting from UNPO’s advocacy acumen within the European Union and the United Nations in advancing Barotseland’s cause for statehood. In his letter, the Ngambela introduced the Barotse nation and the circumstances that led to the application for UNPO membership. In July 2013 the UNPO Presidency invited Barotseland to send a delegation to Brussels to provide information in support of the application for membership.
To this end, a delegation of five people travelled to Brussels, Belgium, to defend and justify the Ngambela’s application for membership to UNPO on behalf of Barotseland. Subsequently, the BNFA presented a paper motivating Barotseland’s admission at the 16th Session of the UNPO Presidency which convened in Cape Town, South Africa, on 22nd November 2013. The decision to admit Barotseland was made at that meeting, which was subsequently ratified by the UNPO General Assembly held at the European Parliament in Brussels, Belgium, from 2nd to 4th July 2015. The BNFA signed the UNPO covenant and received the UNPO flag, at this meeting, which symbolized membership and a commitment by Barotseland to prosecute its struggle for sovereign statehood within the UNPO doctrine of nonviolence, rule of law, democracy and respect for human rights.
This petition arose out of an initiative hatched by Malozi in the diaspora, and was then fully embraced by the various civic organisations which had participated in the arrangements for holding the BNC. In addition, Namuso and all district Kutas also embraced the idea whole-heartedly. Subsequently, it fell on the shoulders of the Ngambela, the Right Honourable Mr. Clement Wainyae Sinyinda, to lodge the petition on behalf of Barotseland. This, he did, on 3rd December 2012. Subsequently, BNFA played a very important role in researching, identifying and collating evidence to support the petition. Overall, this was a very big project which involved the hands of many people who combined forces, resulting in a very impressive submission. Indeed, it was one of those examples where we demonstrated that working together, much, much more could be achieved – living the adage: kopano ki maata.
The petition was subsequently tabled at the Commission’s meeting which took place from 18th to 25th February 2013, where it was determined that the matters raised were very serious and fell in line with the Commission’s Rules of Procedure. Accordingly, the Secretary of the Commission, Dr. Mary Maboreke, informed the Ngambela that the Commission had been seized with the matter for further investigation. The petition was officially registered as Communication 429/12: The Ngambela of Barotseland and Others v. Zambia. In this regard, the Ngambela was requested by the Commission to provide evidence and arguments on each of the seven complaints raised in the petition, in terms of Rule 105(1) of the Rules of Procedure of the Commission.
On the timeline, it should be noted that by the time of the Commission’s response (1 March 2013) Mr. Clement Wainyae Sinyinda had tendered his resignation from the position of Ngambela. So, for a brief while, the absence of a substantive Ngambela caused some delays in receiving some of the communications from Banjul, but finally, through the work of the BNFA, Barotseland complied with the Commission’s request and made its submission containing all the required evidence on 13th December 2013. The Commission then asked the Government of Zambia to respond to the petition by submitting a defence on the seven complaints against it. The Government submitted its defence on 17th April 2015, which was more than fifteen months from the date on which Barotseland had made her submission. As per their protocol, the ACHPR asked the Ngambela to comment on the Zambian Government submission. The BNFA yet again rose to the occasion and assisted the Office of the Ngambela to submit the required comments on the government’s defence on 16th June 2015.
Subsequently, the Commission arrived at a decision on the admissibility of the Barotseland petition at its meeting held from 29th July to 7th August 2015. In a letter addressed to Mr. Clement Wainyae Sinyinda, in his capacity as Chairman-General of the BNFA, the Secretary of the Commission advised that details of the decision of the Commission, alongside other recommendations, would be communicated to the petitioners after the report of the Commission has been submitted to the Summit of the Heads of State and Governments of the African Union. This Summit was subsequently held from 27th to 29th January 2016 in Addis Ababa, Ethiopia – and the ACHPR decisions were tabled for ratification. In this regard, the ACHPR’s decision on admissibility was that it did not have jurisdiction to hear the case on three main grounds, namely (a) lack of jurisdiction (ratione temporis) which means that some of the acts of human rights violations that we complained about pre-dated the African Charter, (b) the inability of the ACHPR to challenge the territorial integrity of a member State, and (c) the point as to whether or not we had exhausted all available local remedies, which was caused by the withdrawal of BRE from the process. This effectively placed GRZ and BRE on the same side against BNFA and the people of Barotseland. As a result, Banjul started communicating directly with the BNFA.
Basically, the fact of the matter was that by failing to go past the admissibility stage, our case was not heard. On our prayer to have Barotseland declared a sovereign state, the ACHPR decision was based on the African Union’s principle of respecting “the borders existing on achievement of national independence, as enshrined in the Charter of the Organization of African Unity (OAU), Resolution AHG/Res.16(I) on Border Disputes between African States adopted in Cairo in July 1964, and the Constitutive Act of the African Union.” The only provision that exists for territorial and border disputes is between member states, and most of them feel that it is their duty and obligation to keep these borders intact. Insurgents and other freedom seeking movements, which may be suffocating within these sacrosanct borders are not provided for in the Charter of the Union Therefore, they must find other ways to achieve their freedom and restore their fundamental liberties. How can GRZ and BRE on the same side agree to dialogue over a matter their opponent (the BNFA and the people of Barotseland) has taken them to court without that opponent? Therefore, we have exhausted all possible remedies, not only locally, but continentally. That is why the BNFA has determined that any dialogue pursuant to the BNC Resolutions 5, 6, 8 and 9 can only be achieved through Resolution 7 – which calls upon a third party to mediate such a dialogue.
As it were, the GRZ submission and promises to the ACHPR and African Heads of states was but a deception. GRZ never acted on them.
The fourth priority issue for the BNFA was to institute a legal challenge to the Zambian government to prove their legitimate claim of their continued governance over Barotseland after it freely abrogated the only legal basis that held Zambia as a unitary state. The diaspora chapter of the BNFA was, again, instrumental in procuring the services of a legal team which subsequently advised and worked closely with the BNFA in various ways in trying to bring about an amicable resolution to the Zambia-Barotseland impasse. In this regard, BNFA procured the services of Dugué & Kirtley AARPI, with the principal legal representatives being Mr. William Kirtley (admitted to practice in Washington, D.C., USA), Mr. Christophe Dugué (admitted to practice in Paris, France) and Ms. Sylvana Q. Sinha (admitted to practice in New York, USA)[3]. Thus, on the advice of this legal firm, the BNFA agreed to challenge the Zambian government to the arbitration process of the Permanent Court of Arbitration (PCA) at The Hague, The Netherlands, and ask the Court to arbitrate in the long-standing dispute between the Zambian government and Barotseland. Accordingly, legal papers were prepared and the BNFA procured eighty-five pages of signatures (amounting to over ten thousand signatures) and challenged the Zambian government in a letter written to the erstwhile Zambian President, Mr. Michael Chilufya Sata on 28th March 2014, to append his signature and agree to the matter that Zambia’s claim to have jurisdiction over Barotseland be reviewed and arbitrated by the PCA. Unfortunately, the Zambian Government declined to accede to this process. On 8th April 2014 the erstwhile Minister of Justice, Mr Wynter M. Kabimba ODS, SC, wrote back to our lawyers explaining that the Zambian government was “unable to give a response to the issues in your letter in the absence of any particulars identifying your clients, whether or not these constitute natural persons or corporate entity in view of Zambia being a unitary state under the current constitution.” BNFA’s reading of this reply was that it was incoherent and reflected poorly on its author as he demonstrated the ostrich syndrome.
Following Mr. Sata’s demise, the same challenge was put to President Edgar Chagwa Lungu on 12th May 2015 – and he, too, declined to go with this process to end the on-going Zambia-Barotseland impasse. This left the BNFA wondering, “If at all the Zambian government has nothing to fear or is not hiding anything, why does it not allow a neutral body to arbitrate in this matter which, clearly, it has no competence to resolve?” Another way of asking the same question would be, “Why does the Zambian government insist on being a player and judge in a matter in which it is a perpetrator, and therefore lacks the integrity, independence and impartiality to preside over?” The PCA arbitration process was meant to give Zambia the opportunity to set forth its legal basis for arguing that Barotseland forms a part of the unitary State of Zambia, and to argue its position that the municipal law of Zambia validly abrogated the BA’64. Accordingly, Zambia’s participation in the PCA process would have given it a rare chance to be vindicated if its legal position were correct. Thus, the PCA was a highly appropriate forum to determine the legal status of Barotseland under public international law, peacefully. So, it was unfortunate that Zambia chose to squander that opportunity.
The BNFA made a Submission to the United Nations High Commissioner for Human Rights on 10th October 2016. This submission is awaiting action by the UNHCHR. UNHCHR takes long with a turn round of two years, which is just about time. Having snubbed both the ACHPRs and African Heads of states, GRZ sat back and thought it was business as usual until they learnt about this upcoming case. Herein is what motives this dialogue process. It is another case of deception in an attempt to circumvent the international court process in the same manner the Kaunda regime did in 1991 under similar circumstances. Kaunda, under the pressure from the United Nations’ Human Rights Commission Case No. 465/1991 on the “Case of Barotse recovery of land rights ‘abolished’ illegally by Zambia”, deceived the people of Barotseland.
The case was submitted by Kabika M. Sibeta (Barrister at Law) in February 1991 (Annex III). The Commission informed the Zambian government in August 1991 to reply within two Months. Instead of replying to the UNHRC Kaunda turned to the Litunga of Barotseland in a letter dated 22nd October 1991 where he lied to the effect that (Annex IV),
“It is my desire and decision that we look together at any and all the anxieties over the Barotse Agreement in detail, piece by piece and step by step until we shall have covered the whole area to the complete satisfaction of all sides. We shall do this as a family. Indeed, we must do this as a happy family which is committed to the great welfare and well-being of all its members.”
By agreeing to Kaunda’s deception, the Litunga and his Ngambela inadvertently helped GRZ to circumvent the UNHRC process. Unlike in the Kabika M Sibeta submission and the ACHPR petition where GRZ was aided by BRE, in the current case both GRZ and BRE have now been petitioned together as respondents. This explains GRZ’s frantic efforts to get BNFA to be part of their proposed dialogue process in an effort to again circumvent the international legal process. We have exhausted both domestic and African continental remedies.
What Lungu is doing now is exactly what Kaunda did in 1991. We ask the people of Barotseland not to be hoodwinked by the GRZ manoeuvres and refrain from doing anything that would jeopardize the UNHCHR process such as participating in the proposed sham GRZ/BRE dialogue.
In kick-starting the implementation of this resolution, the erstwhile Ngambela briefed the UN representative at Limulunga on 19th June 2012 about the BNC resolutions, generally, and this request in particular. This was a very important briefing in the sense that the Ngambela made it very clear to the UN Representative that the BNC resolutions represented the views of the broad spectrum of the people of Barotseland – at the village, branch, ward, district and national levels. He emphasized that the unanimous decision of the people was that Barotseland be left alone to pursue her own self-determination and destiny. As such, the Ngambela called upon the UN to oversee the transitional process leading to Barotseland’s full attainment of her independence from Zambia. In further outlining the position of the BRE on the way forward, the Ngambela pointed out that the people of Barotseland were no longer interested in discussing the merits or demerits of restoring the Barotseland Agreement 1964; that the unanimous position was that Barotseland revert back to the status that obtained prior to the BA’64, given the fact that the Agreement ceased to be in force as far back as November 1969.
So, as things stand today, it is clear that the people of Barotseland have spoken. Therefore, any dialogue with the Zambian government can only be about Zambia’s disengagement from Barotseland. Accordingly, this is the central matter that should form the basis for the proposed dialogue between legitimate representatives of the people of Barotseland and the Zambian government. In particular, the proposed dialogue should not be about re-debating what the people of Barotseland want. That is now a moot point. The people of Barotseland have long resolved that point. The main purpose of the dialogue should be to pave the way for Barotseland’s complete self-rule.
A number of efforts have been made by way of lobbying widely on the various issues pertaining to the plight of Barotseland. Perhaps a realistic view must be that the ‘lobby approach’ makes a gradual and incremental impact. As such, one has to look at the fruits of lobbying being realised over relatively longer periods of time. Suffice it to report, therefore, that in some cases, this has simply taken the form of letter writing, and in other cases some face-to-face consultations have been undertaken. Some of the actions undertaken so far included the following:
A report was submitted to the Commonwealth Secretariat in 2014 regarding the plight of the people of Barotseland, including human rights violations and the illegal occupation of Barotseland by Zambia, in the face of the breakdown of the Barotseland Agreement 1964. No response was received;
A letter was written to the British Crown on 2nd February 2015 by BNFA’s legal representatives, Dugué & Kirtley AARPI. A response was received on 20th March 2015;
The Southern African Development Community (SADC) heads of State have been approached to intervene in the matter of Barotseland. The same comprehensive evidence that was submitted to the ACHPR was also delivered, in person, to SADC;
BNFA participated and presented a statement on the occasion of the Universal Periodic Review (UPR) of the Republic of Zambia at the 28th Pre - Session Stakeholder Submission to the Office of the High Commissioner for Human Rights. Activities during the UPR Pre -Sessions included research, writing, lobbying, meetings with BNFA lawyer William Kirtley, checking on progress of UNHRC submission and securing support of NGO’s, permanent representatives and recommending states on 7th-13th October 2017
BNFA participated in the International Human Rights Day, which took place on 11th December 2017 at the Southern Sun Hotel in Lusaka at the invitation of the European Union (EU) Delegation headed by HE Alessandro Mariani, Ambassador of the EU to the Republic of Zambia. The occasion was also graced by several member states of the EU represented by their High Commissioners.
Submission to the Commonwealth in March 2018 on inclusion of the Barotseland issue on the political dialogue in Zambia, which dialogue was frustrated by GRZ; and
A letter to the Africa Union Commission on 9th July 2018 explaining the BNFA non-participation in the proposed dialogue between GRZ and BRE.
Thus, it is evident that a lot of energy has been expended on the lobbying front, and a number of organisations, nations and all African states have become aware of the plight of the people of Barotseland. These initiatives are bearing pressure on GRZ. The BNFA is quite hopeful that, before long, there will be sufficient pressure brought to bear on GRZ for meaningful dialogue to commence, focusing specifically on the emancipation and freedom of the people of Barotseland.
On the matter concerning the negotiations that needed to be undertaken in order to conclude the return of Barotseland to its original state as a sovereign nation, the BNC noted that GRZ has been the main headache all along. For the purpose of this submission, and to provide the basis for the position which the BNFA has adopted, there are five major violations of the BA’64 which the BNFA needs to place on record to illustrate GRZ’s intransigence and disrespect for Barotseland. Over the years, GRZ has demonstrated its intransigence through its abuse of state authority and power, manifested in many violations of human rights perpetrated against the people of Barotseland since 1965. In presenting these cases, the BNFA comes to the conclusion that GRZ cannot be trusted to hold a meaningful dialogue over the future of Barotseland, with genuine representatives of the people of Barotseland, in the absence of a neutral, capable and credible mediator. These efforts are nothing but an attempt by GRZ with the help of BRE to circumvent an upcoming international court case at the United Nations High Commission for Human Rights in Geneva in the same way that Kaunda did in 1991 with faced with a similar situation.
By virtue of the promulgation of the Local Government Act No. 69 of 1965 GRZ usurped the powers of the Litunga insofar as the day-to-day administration of Barotseland was concerned. This was in violation of the provisions of (a) section 8 of the BA’64, which precluded the enactment of legislation that was inconsistent with the provisions of the BA’64 (b) section 8 of the Zambia Independence Act 1964, and (c) section 20 of the Zambia Independence Order 1964, The Government of the Republic of Zambia’s subsequent imposition of its local government structures, as a result of this Act, literally stripped the Barotse Government (BG) of its governance and administrative powers over Barotseland, thereby dispossessing the people of Barotseland of their right of autonomy secured through negotiations which culminated in the signing of the BA’64. This saw the demise of the elected Katengo Legislative Council and other attendant governance and administrative structures which had, hitherto, defined and characterised the acclaimed efficacy of the Barotse Kingdom. The situation has remained so, to the present day, and GRZ has not shown any remorse for this violation.
In violation of Zambia’s Founding Instrument, the BA’64, GRZ in 1969 promulgated the Constitution (Amendment) Act No. 5 of 1969. The BA’64 was a treaty between two parties, of which GRZ was one while the Litunga of Barotseland, acting in a representative capacity for himself, his Heirs, and Successors, the Council, the Chiefs and people of Barotseland, was the other with the approval of Her Majesty’s Government of Great Britain. This is a really cardinal point to illustrate that, in signing the BA’64, the Litunga did not do so just for himself. All the people of Barotseland had equal stake in the Litunga’s signature. Accordingly, any changes to the Agreement, or indeed its termination, could only be effected by a process to which both parties had acquiesced. The procedure adopted for amending the Zambian Constitution through Act 33 of 1969 was irregular and unconstitutional insofar as it was based on a misguided referendum in which a large part of the participating electorate had no locus standi on the issue of the BA’ 64. The BA’64 was about the wishes, desires and aspirations of the people of Barotseland – and, hence its name. As things unfolded, the Zambian government proceeded with the amendment despite a petition lodged by the erstwhile Ngambela beseeching GRZ not to do because the people of Barotseland had not given their concurrence to the amendments.
So, this was a clear case of GRZ having conducted itself in a manner that was detrimental to the rights of the other party to the Agreement (i.e. Barotseland). By law, in such cases, the injured party reserves the right to either insist on performance of the attendant contractual obligations by the defaulting party or release itself of its own obligations under the same contract, with due consideration for consequent reparations. In this regard, it is a matter of public record that representatives of Barotseland used every opportunity between 1969 and 2012 to persuade the Zambian government to put the Agreement back into the country’s constitution so as to regularise and legitimise the constitutional identity of the Barotse people as Zambians. These efforts were made through, inter alia, the Chona (1972), Mvunga (1991), Mwanakatwe (1995), Mung’omba (2005), the National Constitutional Conference (2007), and Chongwe (2011) Commissions.
There were other efforts as well. In a letter dated 22nd October 1991, President Kenneth Kaunda invited the Litunga for discussions leading to the resolution of the BA’64 matter. This is the usual gimmick used by presidential candidates in months leading to Zambian elections, and nothing usually comes of them after the elections have been concluded. On 18th August 1993, GRZ wrote a letter to the Barotse authorities informing them that GRZ’s position was that it could not reopen negotiations on BA’64 because the Agreement had become ‘statute stale’ by passage of time following its termination in 1969. For his part, Mr. Michael Sata, while campaigning for Republican Presidency at Mongu’s Blue Gums Grounds in 2011 conferred on himself the membership of Linyungandambo, one of the civic society organisations working for the independence of Barotseland from Zambia, and undertook to honour the Barotseland Agreement 1964. He praised Linyungandambo for being a non-violent movement, and urged all Barotseland nationals to join it, after declaring himself a member. At the same campaign rally he acknowledged the Agreement as a legal and binding document. However, once in power, the arbitrary arrests continued and the militarisation of Barotseland intensified, thereby prompting some members of the Zambian Parliament to issues a Press Release, dated 9th November 2013, decrying the militarisation of Barotseland and called for a secession of State Terrorism festered against the people of Barotseland. It is important to actually quote them verbatim, in this regard:
“The approach by the government of President Michael Sata to turn Barotseland into a military zone and have the people therein used for target practice by trigger-happy police and military personnel is of no use in as far as the issue of Barotseland autonomy goes. To this end President Sata is advised to immediately withdraw his forces from Barotseland, cease arbitrary arrests of defenceless citizens and engage in Statesman-like dialogue with the people of Barotseland who are prosecuting their legitimate cause by peaceful means.” (pp.4-5).
It is clear, therefore, that the suppression of the people of Barotseland, through military action, is not a concocted story to sensationalise the plight of the Barotse people. Coming from Zambia’s lawmakers, the above excerpt was a very important testimony of the unwarranted brutality of the state, while acknowledging both the legitimacy of the Barotse cause and the peaceful way in which the Barotse activists had been pursuing this just cause.
It should also be remembered that at page 7 of the MPs’ Press Release, they acknowledged the use of torture against the Barotse detainees, as well as other underhand and unlawful actions:
“We particularly wish to sound a timely warning to one Police Senior Superintendent Leon Mweemba Ngulube, Service No. 1803 who has assigned himself the role of torturer of the detainees ever since their arrest. His actions of physical molestation of the detainees, both in prison and court grounds, are on record and he should be aware that he is a sure candidate for prosecution for violation of human rights, even at the Hague. Let him know that the time of reckoning is surely coming when none of his current superiors will be able to do anything to save him from the consequences of his criminal conduct. He should also not forget that the society within which he resides includes people who hold those he is molesting dear.”
The Prosecuting Authority’s flagrant violation of the detainees’ human rights did not escape the MPs also:
“The Prosecution and Prison authorities should pay attention to the fact that relocation of detainees from the areas of arrest where they are naturally domiciled denies them basic services to which they are entitled. A notable feature of this fact is that they are short of body clothing material as most of them are stuck with attire that they were wearing at the time of arrest, as a result of the long distance of their point of detention from their homes. Meanwhile, those who were recently discharged by the court via ‘nolle prosequi’ had no means of returning to their districts but they were just thrown onto the streets of Lusaka … The actions of government highlighted in the foregoing paragraphs point to gross abuse of human rights and are aimed at breaking the spirit of the Barotse people in order to prevent them from pursuing their legitimate claim. As a matter of fact the government, in a desperate attempt to shut off moral and spiritual support for the detainees from society, has denied some people visitation access to the detainees.”
From the fore-going, it is clear that GRZ has been extremely callous and cruel in its handling of the Barotseland issue. So, given all these violations, how can the people of Barotseland expect that, just overnight, GRZ has had a change of heart to be trusted to hold a meaningful dialogue concerning the freedom of the Barotse people? Even a heart transplant would not have made GRZ somersault to the land of the people with integrity and credibility.
The BNFA believes that it would be both myopic and ludicrous for anyone to believe such a change of heart, given the protracted abuses and violations chronicled above. The only way to a meaningful and authentic dialogue is through an externally mediated process. So far, GRZ has had nothing but contempt for the people of Barotseland.
The above analysis justifies the position adopted by the people of Barotseland at the 26th-27th March 2012 BNC Conference which stated that by abrogating the BA’64, GRZ had stripped itself of its authority over Barotseland and that, since 21 November 1969 when the Agreement ceased to have effect, GRZ has exercised power over Barotseland illegally. To the extent that GRZ has continued its uninvited and illegal occupation of Barotseland to the present day, this has made the people of Barotseland come to the logical conclusion that GRZ will never, on its own volition, cease to disrespect their wishes, desires and aspirations.
By virtue of the Western Province Lands and Miscellaneous Provisions Act No. 47 of 1970, GRZ illegally forced the transfer of power over natural resources from the Litunga to the President of Zambia. In promulgating this Act, the Zambian Parliament was merely following up on the illegitimate authority conferred on GRZ by the 1969 Constitutional amendment which, in effect, terminated the BA’64 and made GRZ’s occupation of Barotseland illegal. Accordingly, this 1970 Act was also illegitimate and constituted an assault on the sovereignty of the Litunga and the people of Barotseland.
The unprovoked killings and arrests of Barotse citizens which occurred in November 2010 and on 14th January 2011 were preceded by notification to the police in Mongu by the organisers of the meetings at which the issue of Barotseland was to be discussed. These meetings were to be held in the midst of the process to amend the Zambian Constitution under the auspices of the National Constitution Conference (NCC), created by the National Constitutional Conference Act No. 19 of 2007, which had circulated a draft Constitution for public discussion and comment. The Barotse political activists’ intention was merely to hold public meetings to discuss the draft Constitution, make an informed analysis of it and provide feedback into the Constitution revision process. At the time, it had been noted that the draft Constitution had, once again, left out the provisions of the BA’64, which the people of Barotseland had submitted for re-instatement in the country’s Constitution to regularise their citizenship. However, by the time the dust settled down, following the incidents of November 2010 and January 2011, the following registers were recorded:
Register of death as a result of Police brutality on 14th January 2011 and subsequent detentions:
List of Barotse nationals secretly arrested and charged with possession of seditious materials:
Thus, it is important to emphasise that given the brutality and untrustworthiness of GRZ as demonstrated over the years concerning the BA’64, it is not possible for the people of Barotseland to reverse their decision to accept GRZ’s unilateral abrogation of the BA’64, and the implied consequent disengagement from the yoke of slavery which they have shouldered for so many years. Should GRZ not accept that its actions of terminating the BA’64 in 1969, followed by the BNC decision to accept the abrogation, amounted to the breaking up of the unitary state which was consummated between the Litunga of Barotseland and the Prime Minister of Northern Rhodesia in 1964, this matter must be determined in a neutral international court. GRZ are its state machinsery, including Zambian courts are interested parties, and therefore, do not qualify to adjudicate the matter. Zambian courts would only have adjudicated the matter when and if the Agreement were still in force. After the termination of the BA’64, the matter has become out of reach for GRZ and Zambian courts. Certainly, if the Zambian government were to insist on having full control over the proposed Dialogue, this would be in complete violation of a key principle of natural justice: nemo iudex in propria causa, which opines that nobody is fit to act as a judge in his own case. In simple terms, nemo iudex in propria causa is a rule against bias originating from possible direct or indirect personal or monetary interest, or prejudice, from a decision-maker. It is common cause that the Zambian government has a very big vested interest in this matter – judging by the nature of GRZ’s knee-jerk reactions every time someone says something about Barotseland.
Following the 14th January 2011 Mongu Police riots, a total of 134 persons were arrested and detained. Out of these, one (1) was released and died soon after from the consequences of detention; seven (7) were acquitted, forty-one (41) were pardoned for being wrongfully and maliciously detained, and a nolle prosequi was entered against the remaining eighty-five (85) detainees because the Director of Public Prosecutions (DPP) could not find any reason for their detention. Clearly, there cannot be any higher level of abuse of power than this. It either means that the Police have no clue when people have committed an offence, or these arrests were politically motivated – whereby the Police were used as a tool to fight political battles on behalf of those in power. The short way of expressing this state of affairs is that Barotseland is under a Police state, which is a far cry from the notion which is portrayed by GRZ that the people of Barotseland are enjoying democracy, under Zambian occupation.
The second wave of mass detentions of Barotse political activists took place in 2013 and involved 84 people, including the leader of the BNFA Hon. Clement Wainyae Sinyinda. Needless to say, that they too, were released on a nolle prosequi after the DPP found no grounds for their arrests. Against this callous abuse of power and cruelty, one can only imagine the damage and trauma these atrocities have done to the families of the people concerned.
On 29th October 2015 five members of the BNFA Youth League, the Barotse Imilemas, were arrested in Mungu by the ever-zealous Zambia Police and charged for engaging in “seditious practices.” The actual ‘crime’ for which they were arrested was for peacefully carrying the UNPO flag and fundraising to enable six of their colleagues then on trial in another matter travel to Kaoma--over two hundred kilometres away—for the purpose of attending their court hearings. The Zambian authorities had vindictively moved their court hearings from Mungu, their place of normal residence, to Kaoma – knowing full well that it would be difficult for them to commute between the two towns without financial assistance. The arrested individuals were Sinonge Lutangu, Saviour Mombela, Siyunyi Mendai, Jeff Mwinga, and Muyapekwa Kutoma. After many months of repeated court appearances, these innocent people were finally acquitted of this politically motivated charge on 29th June 2016.
Indeed, these arrests were just typical of the cynical and spiteful way in which the Police have been treating the people of Barotseland – arresting innocent people willy-nilly, torturing some and maiming others; the rest they kill or they simply make them disappear without a trace. UNPO is an international, nonviolent and democratic membership organization. Its members are indigenous peoples, minorities, and unrecognized or occupied territories who have joined together to protect and promote their human and cultural rights, to preserve their environments, and to find nonviolent solutions to conflicts which affect them. Barotseland, a member since November 2013, accordingly bears the UNPO flag and must be free to display it at any time or place – and this includes carrying and publicly displaying it. As custodians of the law, the police and prosecuting authorities should have known that it was not criminal or seditious to carry the flag. After all, it is Barotseland, as a nation state, that is a member of UNPO, not five youths. If there is someone to arrest and charge with an offence that must, therefore, be Barotseland, not individuals.
The positive angle to this matter was that this saga got the UNPO General Secretary, Mr. Marino Busdachin, involved by writing a letter to the Zambian President, Mr. Edgar Chagwa Lungu, beseeching him to “(a) release the five Barotse youths who were unlawfully detained on 29th October 2015, (b) return the UNPO flag to these men, its owners, and (c) respect the rights of Barotse people to freedom of assembly and expression.” Given that in Zambia, there is no separation of powers between the judiciary and the executive, it is possible that this appeal may have helped to secure the release of the arrested youths. To this end, we can say that the benefits of Barotseland’s UNPO membership have started to manifest, particularly in publicising the Barotse people’s sufferings at the hands of the Zambian government and state agents. Unfortunately, the UNPO flag is still confiscated by the Zambia Police.
Zambia Police on 19th March 2018 directed Sinonge Lutangu to stop the Barotse Imilema (BIs) from wearing their regalia failure to which they would be arrested. This is a clear infringement of their freedom of conscious and association.
Zambia police detained five BNFA activists at Livingstone Central Police on 10th May 2018. The five activists are Bonny Silumina, Kebby Sishekanu and Phelim Kaingu, Ms. Mukebesa Mubita and Mrs. Yubai Mutukwa. They have been detained following a press briefing called by BNFA leadership in Livingtone to react to the BRE/GRZ dialogue message. The BRE/GRZ dialogue message was delivered by one of their agent on 5th May 2018 to drum up support for the BRE/GRZ dialogue. However, the message was rejected by the people. The activists met at the same venue to inform the press the reasons for rejecting the dialogue. The five have been charged with unlawful assembly.
More BNFA activists were arrested in Livingstone by Zambia police. The latest victims were Col. Lubasi, Ndopu Sanjola, Pastor Elliot Mbulana and George Akufuna. George Akufuna is the BNFA Regional Chairperson. The arrests bring the total number to nine and the case is still on-going, despite BRE promise that no Barotse shall ever be arrested over matters pertaining to Barotseland. The Zambia regime continue to demonstrate their true colors by arresting more Barotse while propagating dialogue. As we have stated before, this dialogue is but continued GRZ machination.
By a deliberate misapplication of Zambia’s Public Order (Amendment Act No. 1 of 1996), the people of Barotseland have, for many, many years fallen under an administration akin to a vicious, merciless Police State, which has ensured that the basic freedoms of assembly and association are suspended (perhaps permanently terminated like the BA’64). For many years the Zambia Police in Barotseland has ensured that the Barotse people do not, under any circumstances, hold any political meetings—either private or public (Annex II). Effectively, it has been impossible for the people of Barotseland to exercise the two basic human rights of Assembly and Association.
Since 1964, the Zambian Government has demonstrated no respect towards the people of Barotseland – nor has it demonstrated any level of competence, desire or willingness to resolve the constitutional quagmire posed by its unilateral termination of the Barotseland Agreement in 1969. The very act of unilaterally terminating the BA’64 which was a mutually negotiated and duly signed Agreement, itself, shows that GRZ lacks integrity and cannot be trusted. A government that unilaterally changes its Constitution with the sole purpose of targeting a specific group of people within the country so as to disinherit them of their inalienable right to internal self-determination, as enshrined in a Union Instrument entered into freely by both sides, is cruel.
When this denial of basic human rights is concurrently punctuated by incessant acts of state terrorism against such a group of people – meted out mercilessly and ceaselessly over a period exceeding half a century, such a government is not only cruel and contemptible but also immoral. Indeed, GRZ has shown its disrespect, brutality, cruelty and flagrant disregard for Malozi’s (Barotse) basic human rights in the manner they have consistently illtreated any Mulozi who has dared point out the many faults that it has committed over the years.
The BNFA has provided forensic evidence that illustrates the brutality and cruelty of successive Zambian governments towards Malozi – and from these many actions surmise that a dialogue between the people of Barotseland and any Zambian government, without neutral mediation, will be a waste of time and resources. Overall, it was against GRZ’s flagrant disregard for, and violations of, BA’64 – leading to its termination, its poor human rights record and arrogance that the BNC resolved to request the United Nations to oversee the transitional process leading to Barotseland’s full political independence and self-rule.
No one will disagree that Zambia has failed to cohere, socio-politically. Anyone doubting this should just look at voting patterns between the two entities which the British South Africa Company brought together in 1911 – that is, Barotseland-North Western Rhodesia versus North Eastern Rhodesia, starting from the 1969 referendum up to the latest Zambia national elections. It is quite clear that the intentions, aspirations and interests of these two political entities are so different from each other that one could even be justified to say that they are actually at variance with one another.
These challenges of social cohesion are exacerbated further by tribalism and regionalism from the country’s political leaders. When jobs and job opportunities are reserved only for people coming from the areas where those who rule the country come from, what are we still waiting for? Why do we continue to feel and believe that we belong? Could it be due to an identity crisis resulting from being our forced national identity, associated with a weakened and poor sense of belonging? It is quite strange that, given the intensity of discrimination and exclusion that the Barotse have experienced over the years (and continue to experience), there are still some people and structures of Lozi extraction, that believe that the people of Barotseland must continue to pursue the same political aspirations and destiny as the people who resent them so deeply. Strange. Very strange indeed.
The writing in on the wall, this communiqué cannot end without sounding warning bells concerning the reported over-borrowing attributed to GRZ and GRZ is in denial to the whole world. Zambia is effectively a bankrupted state again, yet BRE still wants to cling to it. The red flag has been raised, and held high, for all to see for some time now. It is common cause that China is deliberately giving countries large loans which they know the countries will not be able to repay – and many countries have fallen into this trap, and Zambia may not be an exception. In the final analysis it is all about taking control of the poor country’s natural resources. Just think about it, what is the logic in giving a poor country a large loan? As things stand presently, the future of Zambia looks extremely bleak. Visionary and astute leadership will see that this is the time to jump ship and make a fresh start before we get swallowed up by this gigantic tsunami which is about to gobble Zambia. It is reported that the debt to China is in the neighbourhood of 8 billion USD, and that China is not the only country Zambia has borrowed heavily from. None of the borrowed money has been spent on Barotseland. Let’s not forget the USD 78.5m that Zambia stole from the Barotse treasury in 1965using armed Zambia Police and GRZ is denying it. The United Kingdom government has cut its aid to Zambia and GRZ is denying it. Barotseland, is this not the right time to jump ship?
The separation of Barotseland from Zambia is the only feasible and viable solution to the Barotseland issue moving forward. There is no other choice. In fact, Zambia’s current attempt to force Barotseland to remain trapped in the Republic of Zambia is unlawful under pubic international law. Hence its reluctance to have the matter settled through the PCA process. Further, Zambia is intent on circumventing the UNHCHR process. The international community must also not tolerate this illegality. Following the 2012 BNC Resolutions 5, 6, 8 and 9 no-one should stand in the way of Barotseland’s right to self-determination because this is the democratic will of the people of Barotseland. These resolutions are extremely important in two main respects: firstly, they place Barotseland firmly on a trajectory to separate statehood from the rest of Zambia, and secondly they are binding on all institutions and leaders of Barotseland. To this end, the main task that lies ahead for all Barotseland-based groups and institutions is to engender the spirit and essence of political activism among the people of Barotseland, en masse, so that they are sufficiently galvanized to exercise their right to self-determination as already sanctioned by the BNC. Their fight to free Barotseland is a just cause. Therefore, the people of Barotseland must not agree to any process that falls short of their expressed wish to finally taste political, economic, social and cultural freedom. We should all call for genuine and legitimate talks to end our present servitude, and refuse to be taken for a jolly ride.
[1]An Open communiqué by the Barotse National Freedom Alliance, without prejudice, in anticipation of the establishment of a legitimate Pre-Dialogue Process leading to an authentic and meaningful Dialogue between the people of Barotseland and the Government of the Republic of Zambia, on the issue of Barotseland’s transition to full self-rule, in line with the 27th March 2012 Barotse National Council Resolutions.
[2] As can be seen from the signatories to these Resolutions, they were jointly owned and embraced by representatives of both the BRE and Civic Society Organisations, on behalf of the people of Barotseland.
[3] We acknowledge the great work done by the diaspora chapter operating outside Zambia in procuring the services of these world-class legal representatives and persuading them to take up interest in the liberation struggle of Barotseland. We can only hope that, in time, some lawyers born of Barotseland will display similar zeal and interest by joining the struggle.