The Barotseland Agreement of 18th May 1964

In an effort to bring the King of Barotseland to the table and facilitate the fusion of the Protectorate of Northern Rhodesia with the protectorate of Barotseland to form Zambia the colonial power through the colonial secretary Sir Duncan Sandys crafted an agreement which was sold to the Prime Minister of Northern Rhodesia and Sir Mwanawina Lewanika of Barotseland. This was during the last stages of the constitutional conference at Malborough House in London. It would appear few of the delegates at this conference claim to be aware of this side meeting, which was taking place simultaneously with the main conference.

The representatives of the Barotseland Protectorate argued with the colonial power regarding their own treaty with the British Government that led to the creation of the Protectorate of Barotseland. The nationalists wanted Barotseland to join Northern Rhodesia in its independence as the two protectorates were to all intents and purposes part of one country. People who were prominent in the independence struggle came from Barotseland as well as Northern Rhodesia. However the King of Barotseland did not want to sleep on the rights of his people.

Subsequently Sir Mwanawina Lewanika agreed that Barotseland Protectorate should join with the Protectorate of Northern Rhodesia to form the nation of Zambia on condition that the Barotseland protectorate retained its local autonomous status enjoyed during her status as a protectorate. Barotseland was to surrender those powers that hitherto had been exercised by the imperial power of Britain over Barotseland to the new State of Zambia.

The details of the powers to be retained by the Barotseland Royal Establishment were spelt out in the agreement.

Sir Duncan Sandys on behalf of Her Majesty’s Government, Sir Mwanawina Lewanika on behalf of the Barotseland Royal Establishment and Dr. Kenneth Kaunda Prime Minister of Northern Rhodesia, signed the Agreement for fusion on the 18th May 1964.

This agreement paved the way for the creation of the State of Zambia on the 24^th October 1964.

In 1969 there were constitutional amendments to the 1964 Constitution and part of those amendments were aimed at bringing local government in Barotseland in line with other provinces. Barotseland was renamed Western Province. The King of Barotseland now only called the Litunga of Barotseland lost some of his powers including his treasury and this was in line with what took place elsewhere in the country. The agreement of 1964 was repealed by legislative fiat without any discussion or consensus from the parties.

The above then is the genesis of our constitutional problems emanating from the Western Province. They are problems that have been left to fester for a very long time. Each successive government has skirted around the problem. No real effort has been made by any of our previous governments to sit down with the traditional leaders of the Western Province to settle the issues once and for all. These issues will not go away unless there is a will by all of us in Zambia to seriously address them through our constitution. After all, at the core of the demands is decentralization. Which politician in Zambian would not agree of the need for decentralization and therefore devolution of more power from Lusaka to the provinces?

In regard to Zambians who come from the other provinces, who do not wish to understand that the Western Province has a legitimate claim to be part of Zambia on a different basis to the rest of us. We cannot in good conscience try to gloss over and arrogantly dismiss this fact, as has been the practice in the past. We as the rest of Zambia made a deal with the Barotse Kingdom. We must now in all good faith acknowledge that we did not keep the agreement. Our partners in the broken agreement have clearly not been happy with our behavior for a long while. Let’s come together and put it right in our time. We can take advantage of the constitutional debate now in place in the country and try to settle once and for all this very important national issue for the good of our country.

Visit To Zambia of Champions of an HIV-Free Generation

Zambia was particularly honoured this week by the visit to the country of a group of eminent persons calling themselves “Champions of an HIV-Free Generation” led by, His Excellency Mr. Festus Mogae, former President of Botswana. They brought a message to us. This is that there is no need to enact laws that criminalise homosexuality and sex workers. The group met our own President at State House. They were accompanied to State House by their Zambian member, His Excellency, Dr. Kenneth Kaunda, our first President. Following their deliberations with our current President, I am writing to congratulate President Banda for responding without hysterics to the comments made by the leader of the group regarding the rights of homosexuals in our communities in this part of the world.

President Banda owned up to having difficulties with the idea of people being homosexuals in our country. There is little wrong in admitting you have such a problem, as many others would do so.

The issue here however has nothing to do with the donors and the fact that they have money. If the donors cannot hypnotize you into being gay with the money you think they have (if that is what they are up to) why do you think that other heterosexuals will be so influenced?

We were young once Mr. President. Could we have been made gay by money?

I don’t really think so.

Our failure here is to understand that there is a division between what some of our more vocal religious leaders consider sin and what we need to make criminal in our society. Just as we do not criminalize the consensual sexual activity outside of marriage by adults, so there is no need to use different standards for those people who engage in consensual acts with same sex partners, even if we are told it is all sin.

The nature of this debate to which I would like to direct the attention of the President is this; the fact is that although it is good that he has responded rather calmly to President Mogae on this matter, we have in the past found ourselves victims of veiled threats when as citizens we have taken a view and stated it against criminalisation of homosexuality. In this as elders we have attempted to assist the community see that there is a minority of people who are in all probability biologically destined to be gay who should not have their human rights undermined by those of us who are not.

The last time I did this was on a rare occasion when I was invited to ZNBC to discuss human rights on a television program. I stated that it is my view that Gay individuals together form a section of our community, which is a minority with human rights in need of the protection of the State. Fairly soon after that one of our leaders was up on his feet in Parliament condemning all those of us including lawyers etc who are gay and he knows who they are and reminding us that we have an atrocious twenty five year sentence to inflict on gays in our country.

Mr. President we in Zambia who have different views to yours would like to have the same opportunity to freely bring up intelligent debate on issues as your foreign leader friends but we have found over the years that the party you have recently come to represent as our President is not a party which encourages intellectual discourse or the opening up of scientific investigation.

I would like to let the President know that as long ago as 12^th October 1998 President Kaunda stated and was reported in the Post that and I quote the article “ homosexuality was here to stay and that Zambians should calm down and think about the issue.” Dr. Kenneth Kaunda was responding to another venerable elder in our society, Mr. Simon Zukas, the then chair of the minority rights subcommittee of the Human Rights Commission of Zambia who caused a stir according to the article when he defended the formation of the Lesbian Gays and Transgender Persons Association “LEGATRA.”

Unlike President Kaunda in the article referred to I don’t see anything to be sad about in the fact of homosexuality in Zambia. Neither from my observation had it just arrived in Zambia. If that is how people are born that is how they are born and they do not need my permission to get on with being what they are. They will always, like heterosexuals, have to be subject to the prohibitions against engaging minors or unwilling people in their sexual activities. The heterosexual community and its members are not entirely defined by their sexuality but by the sum total of their personalities and there seems little reason to deny this humanity to homosexuals.

I think I could do no better than to make the point as expressed by Justice Albie Sachs, then Judge of the Constitutional Court of South Africa when he said in case of the National Coalition for Gay and Lesbian Equality that-

“A State that recognizes difference does not mean a State without morality or one without a point of view. It does not banish concepts of right and wrong, nor envisage a world without good or evil. It is impartial in its dealings with people and groups, but it is neutral in its value system…”

Writing on the issue of “International Human Rights Norms and Their Domestic Application: Judicial Methods and Mechanisms” for the 12th Commonwealth Law Conference held in Malaysia in September 1999 I stated that:

“What is emerging in South Africa must be a reminder to a good number of lawyers and judges in the Commonwealth that even where neighbours discriminate, it is possible for a nation to acknowledge and accept differences in its own people. It is even possible to legislate for the security and protection of those who are different, so that their rights, like those of everyone else are respected.”

It is apparent from the utterances of the “Champions of an HIV-Free Generation” that the above statements though made almost eleven years ago are very much valid today.

In my view the human rights of homosexual people do not inhere to them because it is convenient as part of our struggle against Aids, important as it may be or because of wants of donors. The human rights of gay people inhere to them just as they do to heterosexual people, because we are all human and born with these rights.