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THE BAROTSELAND AGREEMENT 1964

THE BAROTSELAND

AGREEMENT 1964

Presented to Parliament by the Secretary of State for Commonwealth Relations

by Command of Her Majesty

May 1964

LONDON

HER MAJESTY’S STATIONERY OFFICE

EIGHTPENCE NET

Cmnd. 2366

THE BAROTSELAND AGREEMENT 1964

Following talks in London between the British Government, the Government of Northern Rhodesia and the Litunga of Barotseland, an Agreement regarding the position of Barotseland within independent Northern Rhodesia was concluded at the Commonwealth Relations Office on 18^th May, 1964. It is entitled “The Barotseland Agreement 1964”. It was signed by Dr. K. D. Kaunda, Prime Minister of Northern Rhodesia, by Sir Mwanawina Lewanika III, K.B.E., Litunga of Barotseland, and by the Right Honourable Duncan Sandys, M.P., Secretary of State for Commonwealth Relations and for the Colonies, signifying the approval of Her Majesty’s Government.

The Prime Minister of Northern Rhodesia undertook, on behalf of his Government, that the Agreement would be reaffirmed by the Government of Northern Rhodesia at independence.

The text of the Agreement is attached as the Appendix to this paper.

19^th May, 1964.

APPENDIX

THE BAROTSELAND AGREEMENT 1964

This Agreement is made this eighteenth day of May, 1964 between KENNETH DAVID KAUNDA, Prime Minister of Northern Rhodesia, on behalf of the Government of Northern Rhodesia of one the one party and SIR MWANAWINA LEWANIKA THE THIRD, K.B.E., Litunga of Barotseland , acting on behalf of himself, his heirs and successors, his council and the chief and people of Barotseland of the other party and is signed by the Right Honourable DUNCAN SANDYSM.P., Her Majesty’s Principal Secretary for Commonwealth Relations and for the Colonies, to signify the approval of Her Majesty’s Government in the United Kingdom of the arrangements entered into between the parties to this Agreement and recorded therein :

Whereas it is proposed that Northern Rhodesia shall become an independence sovereign Republic to be known as the Republic of Zambia:

And whereas it is the wish of the Government of Northern Rhodesia and of the Litunga of Barotseland, his council and the chiefs and people of Barotseland that Northern Rhodesia should proceed to independence as one country and that all its people should be one nation:

And whereas, having regard to the fact that all treaties and other agreements subsisting between Her Majesty the Queen of the United Kingdom of Great Britain and Northern Ireland and the Litunga of Barotseland will terminate when Northern Rhodesia becomes independent sovereign republic and her Majesty’s Government in the United Kingdom and will thereupon cease to have any responsibility for the government of Northern Rhodesia, including Barotseland, it is the wish of the Government of Northern Rhodesia and of the Litunga of Barotseland to enter into arrangements of concerning the position of Barotseland as part of the Republic of Zambia to take the place of the treaties and other arrangements hitherto subsisting between Her Majesty the Queen and the Litunga of Barotseland :

And whereas on the sixteenth day of April, 1964 a provisional agreement was concluded in at Lusaka with this purpose and it is the desire of the Government of Northern Rhodesia and the Litunga, acting after consultation with his Council, to conclude a permanent agreement with this purpose :

NOW THIS AGREEMENT WITNESESSTH and it is herby agreed between the said Kenneth David Kaunda, the Prime Minister of Northern Rhodesia, on behalf of the Government of Northern Rhodesia, and the said Sir Mwanawina Lewanika the Third, K.B.E., Litunga of Barotseland on behalf of hiself, his heirs and successors his Council and the chiefs and people of Barotseland as follows :--

1. Citation and commencement

This Agreement may be cited as the as the Barotseland Agreement 1964 and shall come into force on the day on which Northern Rhodesia, including Barotseland becomes the independent sovereign Republic of Zambia.

2. The Constitution of Zambia

The Constitution of the Republic of Zambia shall include the provisions agreed upon for inclusion therein at the Constitution Conference held in London in May, 1964 relating to—

(a) the protection of human rights and fundamental freedoms of the individual ;

(b) the judiciary ; and

and those provisions shall have full force and effect in Barotseland.

3. Administration of justice

(1) Subject to the provision of this Agreement, the people of Barotseland shall be accorded the same rights of access to the High Court of the Republic of Zambia as are accorded to other citizens of the Republic under the laws of for the time being in force in the Republic and a judge or judges of the High Court selected from among the judges who normally sit in Lusaka shall regularly proceed on circuit in Barotseland at such intervals as the due administration of justice may require.

(2) The people of Barotseland shall be accorded the same rights of appeal from decisions of the courts of the Republic of Zambia as are accorded to other citizens of the Republic under the laws for the time being in force in the Republic.

4. The Litunga and his council

(1) The Government of the Republic of Zambia will accord recognition as such to the person who is for the time being the Litunga of Barotseland under the customary law of Barotseland.

(2) The Litunga of Barotseland, acting after consultation with his Council as constituted for the time being under the customary law of Barotseland shall be the principal authority for the government and administration of Barotseland.

(3) The Litunga of Barotseland, acting after consultation with his Council, shall be authorised and empowered to make laws for Barotseland in relation to the following matters, that is to say—

(a) the Litungaship ;

(b) the authority at present known as the Barotse Native Government (which shall hereafter be known as the Barotse Government) ;

(d) the courts at present known as Barotse Native Courts ;

(e) the status of members of the Litunga’s Council ;

(f) matters relating to local government ;

(g) lands ;

(h) forests ;

(i) traditional and matters relating to Barotseland alone ;

(j) fishing ;

(k) control of hunting ;

(l) game preservation ;

(m) control of bush fires ;

(n) the institution at present known as the Barotse Native Treasury ;

(o) the supply of beer ;

(p) reservation of trees for canoes ;

(q) Local taxation and matters relating thereto ; and

(r) Barotse local festivals.

5. Land

(1) In relation to land in Barotseland the arrangements set out in the annex hereto shall have effect.

(2) In particular, the Litunga of Barotseland and his Council shall continue to have the powers hitherto enjoyed to them in respect of land matters under customary law and practice.

(3) The courts at present known as the Barotse Native Courts shall have original jurisdiction (to the exclusion of any other court in the Republic of Zambia) in the matters concerning rights over or interests in land in Barotseland to 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 writs or orders.

(4) Save with the leave of the court at present known as the Saa-Sikalo Kuta, no appeal shall lie from any decision of the courts at present known as the Barotse Native Courts given in exercise of the jurisdiction referred to in paragraph (3) of this article to the High Court of the Republic of Zambia.

6. Civil Servants

All public officers of the Government of the Republic of Zambia who may from time to time be stationed in Barotseland shall be officers serving on permanent and pensionable terms.

7. Financial responsibility

The Government of the Republic of Zambia shall have the same general responsibility for providing financial support for the administration and economic development of Barotseland as it has for other parts of the Republic and shall ensure that, in discharge of this responsibility, Barotseland is treated fairly and equitably in relation to other parts of the Republic.

8. Implementation

The Government of the Republic of Zambia shall take such steps as may be necessary to ensure that the laws for the time being in force in the Republic are not inconsistent with the provisions of this Agreement.

9. Interpretation

Any question concerning the interpretation of this Agreement may be referred by the Government of the Republic of Zambia to the High Court of the Republic for consideration (in which case the opinion thereon of the Court shall be communicated to that Government and to the Litunga of Barotseland and his Council) and any such question shall be so referred if the Litunga, acting after consultation with his Council, so requests.

10. Revocation

The hereinbefore-recited Agreement of the sixteenth day of April, 1964is hereby revoked.

In witness whereof the parties hereto (signed)

have hereunto set their hands in the K. D. KAUNDA

presence of:- Prime Minister of Northern

(signed) E. D. HONE Rhodesia

Governor of Northern Rhodesia

(signed)

(signed) IMENDA SIBANDI MWANAWINA LEWANIKA

Ngambela of Barotseland III

Litunga of Barotseland

Signed by the Right Honourable Duncan

Sandys in the presence of :- (signed)

(Signed) RICHARD HORNBY DUNCAN SANDYS

Parliamentary Under Secretary of Her Majesty’s principal Secre-

State for Commonwealth Rela- tary of State for Commonwealth

tions and for the Colonies Relations and for the Colonies.

ANNEX TO THIS AGREEMENT

1. This Litunga and National Council of Barotselnd have always worked in close co-operation with the Central Government over land matters in the past, have agreed that the Central Government should use land required for public purposes, and have adopted the same procedures as apply to leases and rights of occupancy in the reserves and Trust Land areas, where applicable. At the same time, the administration of land rights in Barotseland under customary law and practise has been under the control of the Litunga and National Council in much the same way as customary land rights are dealt with in the Reserves and Trust Land area.

2. In these circumstances it is agreed that the Litunga should continue to have the greatest measure of responsibility for administering land matters in Barotseland. It is however necessary to examine the position of land in Barotseland against the background of the Northern Rhodesia Government’s overall responsibility for the territory.

3. The Barotse memorandum has indicated that Barotseland should become an integral part of Northern Rhodesia. In these circumstances the Northern Rhodesia Government will assume certain responsibilities and to carry these out they will have to have certain powers. So far as land is concerned, apart from confirmation of wide powers to the Litunga over customary matters, the position is as follows:--

(1) The Northern Rhodesia Government does not wish to derogate from any of the powers exercised by the Litunga and Council in respect with land matters under customary law and practice.

(2) The Northern Rhodesia Government would like to ensure that the provision of public services and the possibility of economic development in Barotseland are not hampered by special formalities.

(3) The Northern Rhodesia Government recognises and agrees that full consultation should take place with the Litunga and Council before any land in Barotseland is used for public purposes or in the general interests of economic development.

(4) The position regarding land in Barotseland in in an independent Northern Rhodesia should, therefore, be as follows:-

(a) These should be the same system for land administration for the whole of Northern Rhodesia including Barotseland, that is, the Government Lands Department should be responsible for professional advice and services with regard to land land alienation in all parts of Northern Rhodesia and that the same form of document should be used for grants of land (i) for Government purposes and (ii) for non Government and non-customary purposes. The necessary preparation of the title documents should be done by the Government Lands Department.

(b) The Litunga and National Council of Barotseland will be charged with the responsibility for administering Barotse customary land law within Barotseland.

Printed in England and published by

HER MAJESTY’S STATIONNERY OFFICE

(31725) Wt. 221---46 K16 5/64 St.S.

THE POLITICAL HISTORY OF BAROTSELAND

POLITICAL HISTORY OF BAROTSELAND

by Lubosi Muimui

LEALUI

Lealui is a Luyana word which means, “for the Luyi.” Lealui Village is the traditional administrative capital for Barotseland. It is found in the Zambezi flood plains and lie 17 kilometers southwest of the winter capital of Limulunga; and about 16 kilometers west of political headquarter of Mongu.

Lealui was first identified by King Sipopa around 1864. He camped there briefly. In 1876, King Lubosi Lewanika established Lealui as a permanent capital of the Lozi Kingdom. Formerly, each king chose his own capital; and this entailed that people had to shift to another location whenever the new king was installed.

The Lozi are the dominant tribe of some twenty-five tribes who inhabit the Barotseland. Formerly, the Lozi were known as the Luyana or Luyi up until the early 19th century when they were invaded by the Kololo. The Luyana adopted the language of the conquerors and thus the Sikololo became the lingua franca until 1863 when the Kololo regime was overthrown. The Lozi then became the modern lingua franca created out of blending the Luyana (Luyi) and the Kololo.

EARLY POLITICS

The early Lozi politics depicted an evolution of a concrete rule which branched throughout their own territory and that of the conquered tribes. The whole system stemmed from Lealui, otherwise known as Namuso. At Lealui, the Litunga (the King) had his Kuta (the Council) which was divided into several smaller institutes that consisted of the members of the royal family, the Indunas (councilors, stewards, and judges) at his hand. The second-in-command capital was established in the south of the flood plain at Nalolo, otherwise known as Lwambi. This set up accorded the system of governance that streamed on a north-south axis. The rulers at Nalolo used to be men before the Kololo interregnum. The women rulers were installed following the Kololo defeat.

The Litunga-la-Mboela (Queen of the South) had all the symbols of the King, the Litunga. Her Kuta was a replica of the one found at Lealui. Thus, she was accorded the respect and royalty which was second only to the Litunga.

The combination of the two councils of Lealui and Nalolo was the final ruling organ of the Barotseland. The arrangement was however reversed by the reforms introduced in 1947.

Ngambela (the Prime Minister or Chief Councilor), was next in secular power to the Litunga of Lealui.

The status of Ngambela was believed to be closely bound up with kingship. The Ngambela was deemed to be a representative of the commoners. Hence, he was considered to homogenize and uphold the rights and interests of the commoners against those of members of the royal family and the Litunga.

BAROTSELAND AS A BRITISH PROTECTORATE

It started on the 08th January, 1889 when François Coillard, a Paris Evangelical Missionary who was based in Luatile, a mission station located about 600 meters south-east of Lealui, wrote a letter, on behalf of and as requested by King Lubosi Lewanika, to Sir Sideney Shirppard who was the British Administrator of Bechuanaland (now Botswana). The purpose of the letter was to seek British protection.

King Lewanika needed protection against the threats of the Portuguese who were advancing from the east and west. The German annexation of the South-West Africa (now Namibia) also posed another threat.

In April, 1889, Henry Ware arrived in Lealui on the mission of obtaining some mining concessions from King Lewanika. He was sent by King and Nind Consortium from Kimberely.

Ware made great and sweet promises of Queen’s protection. He lavished Litunga Lewanika with several gifts of clothes, blankets, and guns. The Litunga was finally convinced and on the 27th June, 1889, the Ware Concession was signed.

The concession entitled Lewanika to receive the payment of £200 annually and 4% on all minerals and precious stones mined in his territory for a period of twenty years. The concession was surrendered to King and Nind on 11 October 1889 and it was later sold to Rhodes for £900 and ten thousand shares in the British South African Company (BSAC).

The Ware Concession posed some several restrictions which Rhodes saw fit to eliminate. In this respect, he sent Frank Elliot Lochner to carry out some more negotiations with Lewanika for a comprehensive agreement.

In his efforts to persuade the Litunga, Lochner proclaimed he was an ambassador sent by the Queen to offer her protection and alliance between the two nations. The Lochner Concession was finally signed on the 26th June, 1890. The concession promised Litunga Lewanika payment of £2,000 per year, the British Protection, guns, and 3% royalties on minerals.

In order to fulfill the promises, the BSAC recommended Mr. Robert Thorne Coryndon to fill the post of British Resident Commissioner with King Lewanika to the British Government. The Foreign Office for Her Majesty’s Government accepted and approved the appointment. Coryndon arrived in Lealui on 27th September, 1897. He settled and built the office on the mound called Lilondo.

The BSAC sternly instructed Coryndon to obtain a fresh concession that would give out more power to the company than the previous Lochner Concession. To successfully coerce the Litunga, he asked him to travel to the Victoria Falls to meet Captain Lawley, the BSAC Administrator of Matebeleland (Zimbabwe). Lewanika gave in and in June, 1898, the concession was entered. Unfortunate, however, this concession was not confirmed by the British Government. Another concession which repeated the provisions of Lawley Concession, but this time agreed between Lewanika and the BSAC was confirmed in October, 1900. The final concession was signed by the company and Lewanika in 1909. The concession granted the land rights to company throughout the Barotse territory except the Barotseland Proper.

Under the British rule, the Barotse political system of governance was re-organized on a territorial basis. This entailed that each of the six districts of Mongu– Lealui, Senanga-Nalolo, Kalabo-Libonda, Sesheke-Mwandi, Kaoma-Naliele, and Lukulu-Nawinda; had one Central Kuta installed as a Native Authority with the warrant equivalent to the subordinate council. At Lealui there were two councils, the Mongu-Lealui District (subordinate) council, and the Saa-Sikalo Provincial (high) council.

The whole administration of Barotseland was operated by the Katengo which was the Supreme Council made up of the Saa-Sikalo Kuta (the Provincial Council) and representatives from the six subordinate District Councils. The Katengo met once or twice a year. The Katengo was regarded as the Lower House.

BAROTSELAND

The 1889 Barotseland/North-Western Rhodesia Order-in-Council was adopted to delineate the territorial boundaries. It provided for the territory’s administration by the BSAC. The North-Eastern Rhodesia Order-in-Council was enacted in 1900 and provided for the territory’s administration by the company. The two territories were administered separately from 1900 up until 04th May, 1911 when they were amalgamated by the Northern Rhodesia Order-in Council which also repealed the former Barotseland/North-Western and North-Eastern Orders-in-Council; but became operational on 17th August, 1911 — its provisions contained in the Northern Rhodesia Proclamation No. 1 of 1911.

This Order-in-Council empowered the High Commissioner based in South Africa the power to make laws, administer peace and justice; and to

“… respect any native laws or customs by which the civil relations of any native Chiefs, tribes or populations under Her Majesty’s Protection are now regulated, except so far as the same may be incompatible with the exercise of Her Majesty’s power and jurisdiction.”

The BSAC rule was terminated on 18th April, 1924 and Her Majesty’ Government assumed responsibilities. In this vein, Northern Rhodesia became a protectorate headed by the Governor as the British representative. The Northern Rhodesia Order-in-Council of 1924 further provided that:

“it shall not be lawful for any purpose whatever to alienate from the Chief or peoples of Barotse the territory reserved from prospecting by virtue of Concessions from Lewanika to the British South Africa Company dated 17th October, 1900 and 11th day of August, 1909.”

The Colonial Secretary, Henry Hopkins visited the 1953 Katengo (the National Council) which convened in Lealui to proclaim that

“Barotse Province would become Barotseland Protectorate and the Provincial Commissioner would become the Resident Commissioner.”

This arrangement called for a Special Order-in-Council enacted in 1953 which declared Barotseland to be a British Protectorate within the Northern Rhodesia. In the same year, on 01st August, Northern Rhodesia became part of the British Central African Federation which was terminated in December, 1963.

The autonomy of Barotseland was further acknowledged in the Northern Rhodesia Order-in-Council of 1962. The self-governing Northern Rhodesia Constitution (Order-in-Council) passed in 1963 still provided for the separate administration of the Northern Rhodesia under Her Majesty whose power was exercised through the Governor (Article 68), and Barotseland under the Litunga whose authority was preserved by the earlier treaties and concessions as stipulated under Articles 58, 59 and 112 of the said constitution.

NORTHEN RHODESIA

The Northern Rhodesia proved to be one of the richest regions due to the discovery of the minerals’ especially copper. The Copper Belt gave rise to an increased European administration of the region. Although the Europeans represented only 2% of the population, the political system perched them on the topmost level.

The legislative council that existed since 1948 reserved only two seats for the African members.

Despite that the economic benefits induced by the rise of copper prices on the world market gave a promise, the political unrest equally sprung up as other British colonies in Africa attained independence with Ghana (1957) in the lead.

The pressure grew as African politicians massively won seats in the legislative councils. Their grip on power tightened. And eventually, the federation ruptured, and it was dissolved on the 31^st December, 1963.

The African National Congress (ANC) was formed in 1948 by some members of welfare societies in the mining communities and rural districts. During the period of federation, the demands of ANC which was led by a radical younger generation were quite timid in all its efforts. This prompted Kenneth Kaunda to lead a sprinter group that formed the Zambia African National Congress in 1958 (ZANC).

Kaunda mobilized ZANC to campaign for civil disobedience against the existing policy of federation. His activities landed him in jail. The United National Independence Party (UNIP) was formed while Kaunda was in prison. He was elected as president of UNIP upon his release in 1960. UNIP mobilized about 300,000 members, an initiative which compelled the British authorities to recognize it as the main political voice of the African population.

THE BAROTSELAND AGREEMENT OF 1964

The Barotseland Agreement, 1964 was a legal contract that was signed at the Commonwealth Relations Office in London on the 18th May 1964. It was a mutual agreement which was entered into as means of integrating the Barotseland with Northen Rhodesia that was later to be named Zambia. To this end, the Agreement instilled Zambianness of Barotseland within the new republic.

Without the Agreement, Barotseland would remain as a different country with different political set up; a monarch apparently. The third paragraph of the Agreement reads:

“And whereas it is the wish of the Government of Northern Rhodesia and of the Litunga of the Barotseland, his Council and the chiefs and people of Barotseland that Northern Rhodesia should proceed to independence as one country and that all its people should be one nation.

The signatories to the Agreement were Litunga Sir Mwanawina III who undertook this task on behalf of himself, his heirs, successors, the Barotse Native Government, the chiefs and people of Barotseland; Prime Minster Kenneth Kaunda; and the British Principal Secretary of State of Commonwealth Relations.

Prominent among several provisions of the Agreement are:

“2. The Constitution of Zambia

The Constitution of the Republic of Zambia shall include the provisions agreed upon for inclusion therein at the Constitutional Conference held in London in May, 1964 relating to —

(a) the protection of human rights and the fundamental freedoms of the individual ;

(b) the judiciary ; and

“4. The Litunga and his Council

(2) The Litunga of Barotseland, acting after consultation with his Council as constituted for the time being under the customary law of Barotseland shall be the principal local authority for the government and administration of Barotseland.

“5. Land

In particular, the Litunga of Barotseland and his Council shall contine to have the powers hitherto enjoyed by them in respect of land matters under customary law and practice …”

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