Legal Editor, Barotseland Post
The First Deputy Speaker of the National Assembly, Catherine Namugala, may have just confirmed that the Zambian state is intent on destroying, in whole or in part, the entire nation of Barotseland, which amounts to the popular understanding of what constitutes genocide as prescribed by the United Nations (UN) Genocide Convention!
Article II of the Genocide Convention contains a narrow definition of the crime of genocide, which includes two main elements: A mental element and a physical element!
According to the United Nations convention, the physical element may mean any of the following five acts: killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, forcibly transferring children of the group to another group.
While the Zambian state may argue that none of the physical elements listed above has ever been done in Zambia in specific relation to the Barotse people, definitely, the Zambian State can no longer deny that it has committed the mental element of genocide which according to the United Nations classification includes the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group!”
This mental aspect of genocide is what the Zambian state has been engaged in – a systematic intent to destroy, in whole or in part, Barotseland which qualifies both as a nation and ethnic grouping.
The Supreme Court of Zambia, sitting in Ndola, has given the defence one more day to allow them time to prepare and file grounds of appeal and heads of argument for his clients out of time.
This was after the appellants' lawyer revealed that he and his clients only received all necessary case records on Saturday and hence his request to have more time to file in all his arguments.
And after appearing before Supreme Court Judge, Her Hon. Lady Justice E.C Muyovwe, as lead Judge, sitting together with two other Supreme Court judges, the Hon. Mr Justice E.M Hamaundu and the Hon. Justice J Chinyama, the Defense Counsel was grateful that the judges were very kind to have allowed him and his clients another chance to file all grounds of appeal and heads of argument, and also that the presiding judges were very eager to see that the trial proceeds on Thursday this very week.
As the sworn Barotseland Administrator General, Afumba Mombotwa, and two others appear in the Supreme Court today to begin their appeal against their high court conviction and sentencing of 10 years imprisonment with hard labour for a treason felony, they wish to argue that the lower court erred in judgment when they imposed such a verdict in March of 2016.
And their attorney, Victor Kachaka has declared that both he and his clients are ready for court today, which has been scheduled for 09:00hrs in Ndola, before a number of yet to be known Supreme Court Judges.
Speaking after meeting his clients in Ndola yesterday, Counsel Kachaka assured that he will work hard to overturn both his clients' conviction and sentencing.
“I have met with my clients today (Monday) and we are all ready, physically and mentally. We have gone through our arguments together and can say, with confidence, that we are ready for trial as it begins tomorrow, and our expectations are that the Supreme Court Justices will hear us speedily!”
SUBMISSIONS OF LAW AS TO THE LEGAL POSITION OF BAROTSELAND AGREEMENT IN THE LIGHT OF BREACHES, ABROGATION AND REPUDIATION THEREOF
1. IN INTERNATIONAL LAW
There is one matter of absolute legal clarity about the Barotseland Agreement. Given the parties, the subject matter, the circumstances in which it was made, the intention, and the detailed content, its designation in law is that of an INTERNATIONAL TREATY.
As a treaty, it was required by the dictates of international comity and custom and of international law that the parties duly perform their duties under it. They could not just, as the Zambian Government purported to do, act as if the Agreement simply did not exist. The international element and requirements take it beyond the scope of purely domestic or municipal law.
BREACHES, ABROGATION AND REPUDIATION OF THE AGREEMENT BY THE GOVERNMENT OF ZAMBIA FOLLOWING INDEPENDENCE
Sadly, it quickly became clear that the Government of Zambia had no intention of honouring its promises either to Barotseland or to the British.
From the very outset, the Government of Zambia embarked on a systematic path to defeat the agreement.
Despite a Cabinet resolution to do so, the Agreement was never ratified or reaffirmed by the Government of Zambia, whether at Independence as Dr Kaunda had promised the other parties in London it would be, or at all.
THE BAROTSELAND AGREEMENT 1964
The agreement was concluded and duly signed on 18th May 1964 at the Commonwealth Relations office in London between the British Government, the Government of Northern Rhodesia and The Litunga of Barotseland regarding the position of Barotseland within independent Northern Rhodesia.
It is the Royal Barotseland Government’s position that the undisputed legal basis for the creation of modern Zambia, formed by Barotseland and the rest of Northern Rhodesia, was the same Barotseland Agreement of 18th May, 1964, which was signed by Dr. Kenneth David Kaunda, the Prime Minister of Northern Rhodesia, on behalf of the Government of Northern Rhodesia, by Sir Mwanawina Lewanika III, the Litunga of Barotseland, on behalf of himself, his Council and the Chiefs and People of Barotseland, and by the Rt. Hon. Duncan Sandys, the Secretary of State for Commonwealth Relations and for the Colonies, on behalf of the Government of the United Kingdom.