BRE shocked by latest ConCourt ruling to discard Chiefs Act, Privy Council to reconvene on 9th December

02 December 2019
The Constitutional Court of Zambia


A few days after concluding to engage the Zambian government through dialogue for the restoration of the defunct Barotseland Agreement 1964, the Privy Council is set to reconvene to possibly reconsider its earlier resolutions, a Limulunga source has reported.

The decision to reconvene the Privy Council came barely a day after the extended Privy Council had concluded its sitting with the conditional resolution to engage the Zambian government over the defunct 1964 agreement on Friday, 29th November.

“Yes! The Privy Council had concluded that the Zambian Government be engaged in a dialogue to restore the agreement on the condition that the current Zambian Bill 10 immediately includes a clause for the restoration of the defunct 1964 agreement, however, the Council may now have to reconvene, possibly on the 9th of December, to consider new matters that have arisen since the Council resolution,” the source revealed.

Reportedly, there was panic shortly after the resolutions of the Privy Council when information filtered through to them that the Constitutional Court (ConCourt) of Zambia had made a ruling in favour of embattled Webby Mulubisha contesting the Mwene Mutondo chieftaincy against the long-held cultural procedures of the Kingdom of Barotseland.

Mulubisha, a well-known rebel against the Litunga of Barotseland, using the recent 2016 amended Zambian Constitution, had petitioned the Attorney General of Zambia at the ConCourt asking whether he needed the recognition of the Zambian President to be a Chief.

This was in the matter of Article 1 and 165 of the constitution of Zambia and another related matter of the constitutionality of sections 3, 4, 5, 6, and 7 of the Chiefs Act, Cap.287 of the Laws of Zambia.

However, in passing judgment on 27th November 2019, the ConCourt ruled and declared Sections 3, 4, 5, 6, and 7 of the named Chiefs Act to be inconsistent with the named Article 165 of the Zambian Constitution as amended in 2016, and are, therefore, unconstitutional and void.

The ConCourt further ordered that the sections in question be expunged from the statute book.

This ConCourt ruling has emboldened Mulubisha and all others who are part of his rebellion, taking this ruling as a victory against the Litunga of Barotseland and not just the Attorney General because the ruling categorically orders the expunging of the Chiefs ACT from the statute book.

The Chief Act remains the only piece of Law in Zambia that recognizes the power of the Litunga over all the chiefs in the Western province of Zambia. As such, with this ruling, the Litunga, King of Barotseland, is seen to have been stripped of these powers over his Kingdom of Barotseland which was unilaterally renamed Western province in 1969 by then-President Kenneth Kaunda.

From 1965, and with every Zambian constitutional review processes, the Zambian State has created and passed several and various controversial laws and constitutional provisions which have systematically stripped the Litunga of various specific powers and also obliterating the very existence of Barotseland leading to the unanimous March 2012 Barotse National Council (BNC) declaration of Barotseland independence from Zambia.

However, instead of the latest Privy Council resolving to facilitate the implementation of the 2012 BNC unanimous Barotseland independence resolutions, the BRE, through the Ngambela’s Kuta had mooted the restoration of the defunct 1964 agreement, a proposition that was not initially supported by other Kuta creating a stalemate.

After extended much deliberations, however, the Privy Council decided that they would support the restoration dialogue only on the condition that the ongoing proposed Constitutional Amendment Bill of 2019 immediately includes a clause for the restoration of the defunct 1964 agreement.

The controversial ConCourt ruling to expunge, from the laws of Zambia, the Chief’s Act which was the only law empowering both the Zambian President and the King of Barotseland to recognize chiefs in Zambia and Western Province respectively, has however, unsettled the BRE allegedly prompting for a reconvening of the Privy Council again on the 9th of December 2019.

And in immediate response to the constitutional ruling, the BRE issued a Press statement on 30th November 2019 expressing their shock and dismay at how the Constitutional Court has misdirected itself by purporting to annul the Litunga’s customary role in the process of installation and administration of chieftaincy in Barotseland.

“I wish to state from the outset, that the Office of the Litunga and its functions are not a creation of statutory law when legislating on matters affecting Litungaship.” Mukela Manyando reacted categorically in a written press statement while expressing the Barotse Royal Establishment’s shock and dismay.

“What is clear from the record is that the Chiefs Act was created to accord the Government through the presidency a way of administering the Office of the chief in Barotseland. Our position, therefore, is that if the President is stripped of powers vested in him by the said law, the action does not extend to the functions of the traditional Authority whose existence preceded that law. Therefore, as far as the people of Barotseland are concerned the powers and authority of the Litunga remain intact notwithstanding this judgment.

“Article 165 of the constitution of Zambia as currently amended provides that chiefs will be installed in accordance with the customary practice of the people to whom it implies. In Barotseland, the practice is that the installation of Chiefs within the domain of the Litunga concludes with the appearance of the chief-elect before the Litunga. The Litunga is gazetted under the Laws of Zambia as the Litunga of Western province (Barotseland) implying that he is the custodian of the customary law and traditions of the entire area. This is so because Barotseland is a kingdom and as such, no chief is independent of the king.

“The learned Judges of the Constitutional Court should have exercised their minds to these matters and endeavoured to ensure clarity of the action taken to annul the Chiefs Act as that of stripping the President of his role of recognizing chiefs without disturbing the customary practice of installing chiefs in Barotseland. In any case, the Litunga was not a party to these proceedings and the judgment should have stayed off implying that his role in the installation and recognition of Chiefs in Barotseland was also under question.

“In this connection, it will be necessary for the Constitutional Court to review its judgment to bring forth clarity of these issues.

“I’m alive to the fact that this judgment will heighten tension with the consequences of anarchy in Barotseland, as the people are angered by the misrepresentation of the facts and infringement of their cultural heritage.

“This is the consequence of mishandling issues by institutions charged with administration of peace, law and order. It must be understood that when injustice is legalized, disobedience becomes a duty.

“I wish to end by advising the people of Barotseland to remain focused in preserving their heritage,” concluded Mukela Manyando.

It, however, remains to be seen whether the BRE will do anything beyond this press statement.

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