Afumba and others make final written submission in their defense to Treason charges

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File: Afumba Mombotwa

File: Afumba Mombotwa

Incarcerated Barotseland Administrator General, Afumba Mombotwa and his two treason co-accused, Likando Pelekelo and Sylvester Kalima have jointly made their final written submission in their defense to the charge of treason in a matter that is before Judge Dominic Sichinga at Zambia’s Kabwe High court.

Meanwhile, the State Prosecutors’ submission is expected to be made on the 8th of January, 2016, while ruling has been reserved for some time in March 2016 during the next Criminal Court Session.

Here below is their full written submission which they made yesterday, 18th of December 2015.

IN THE HIGH COURT OF ZAMBIA HOLDEN AT KABWE

HB/191/215

DATE: 25/11/2015

THE PEOPLE

VS

AFUMBA MOMBOTWA AND OTHERS

SUBMISSION OF THE ACCUSED:

EXTRACT FROM LITUNGA ILUTE’S LETTER TO THE ZAMBIAN PRESIDENT CHILUBA, 4TH NOVEMBER 1993

“The Government should be aware of our interpretation of our right to secede, the Barotse deserve the Right to Revert to their original status if the Agreement under which they intended to achieve unity can no longer work.

The rest of Zambia cannot hold us in perpetual enslavement on account of agreement which we entered into voluntarily.

In other words, we cannot be expected to adhere to the agreement which the other party to agreement does not recognize. There is NO TREASON Mr. President.”

Signed:

ILUTE YETA,

LITUNGA.

SUBMISSION /STATEMENT

May it please Your Lordship to consider our submission with regards to accusation of secession; charge termed TREASON.

Our submission statement will be subdivided and shall deal with:-

(i) Assertion, allegations and Notions

(ii) Issue of law and Agreement and

(iii) Submission

But not in a chronological order.

1. I wish to begin with the Notion that Barotseland and Northern Rhodesia (Zambia) made one country or Nation.

The truth is that the relation that existed between Barotseland and Britain was to be exactly the same relation between Barotseland and Zambia. This is self-evident from the fact that there was an Agreement between Barotseland and Northern Rhodesia (Zambia) arrived at and concluded at commonwealth Relations Office in London. No part of Zambia entered into Agreement with Zambia.

2. In construing Agreements, it is not words written that matters but the intention. Therefore, by the Barotseland Agreement 1964, Zambia simply inherited the obligations of Her Majesty the Queen of Britain over Barotseland. Barotseland did not surrender her Sovereignty to Zambia. Obviously, the constitution of Zambia 1964 confirmed transfer of obligations by the Queen [Viz; Independence Order, section 20].

3. The Agreement was a presupposition intended to enter into force at Northern Rhodesia’s Independence. However, it was terminated by the parliament of Zambia in 1969 before entering into force; and by law, the Agreement that has not entered into force is not legally binding.

4. Our position has not been to question the validity of the Acts of parliament of Zambia. No Lozi person could do that, what we do not condone is the idea of terminating, on one hand and longing or claiming to enjoy the rights derived from the Agreement that is terminated. This is unlawful and heart-breaking to the innocent part. To entertain such attitude is not only to support injustice but to love what is evil.

Dr Kaunda’s policy of coercion and hegemonic dominance led to the abrogation of the Agreement. No question about it.

ADDENDUM SUBMISSION

Firstly, it is not appropriate to proceed with the matter of secession by relying on penal code, without REFERENCE TO THE CONSTITUTION or rather the issue of secession cannot be delinked from the constitutional matter.

Secondly, we have to find out the definition of TREASON AND SECESSION in order to know what qualifies these offences.

According to the Oxford Advanced Leaner’s Dictionary and Collins Dictionary definition;

(i) Treason; means BETRAYAL of one’s country; or sovereign (King).

(ii) Secede; means to WITHDRAW formally from a Union or Federation of Political alliance.

Moreover, treason is an Act like treachery or disloyalty to one’s country or King. Indeed our country is Barotseland, and we have not betrayed it; therefore, according to the definitions above, we cannot withdraw from alliance where there is none, in existence. The issue of secession could be referred to in the situation of Canada and Quebec. Legality; whatever is legal is permitted by law. Therefore, it follows that, there is no legality in the claim that WESTERN is part of Zambia. In this regard what is worthy noting is that, at its ESTABLISHMENT Zambia was not a unitary state, which makes the issue of secession baseless. No law can apply retrospectively.

In 1964 Barotseland was there, as for Western it was not there. In regard to our fate “All the Acts done by us and materials in court are meant to imply that we seceding from Zambia, but facts on the ground prove the contrary. For more enlightenment, reference can be made to Constitutional Review commission Report (CRC) of 2003 page 509 executive summary with highly qualified Zambian lawyers among them.

Rationally and legally we could secede if the Agreement that associated Barotseland with Zambia was in force. As the case is, we are having difficulties in understanding the meaning of Unitary state alluded to by Ngulube; whether the essence of termination of Agreement was unification or results in unity. Considering that legal axiom which states that “A THING IS MADE AND DESTROYED BY ONE AND THE SAME MEANS”, then relation made by Agreement is destroyed by abrogation of the same Agreement.

The matter simply requires interpretation of law and proper definitions by court; since relation was based on express conditions.

The Zambian Judiciary is an organ of the Zambian Government that terminated the Barotseland Agreements. In this regard, does Justice allow one to be a Judge and Jury in his or her own cause?

SUMMARY OBSERVATION

1. Listening attentively to the prosecution’s witnesses one notes that they talked (2) two things viz;

(i) Linyungandambo

(ii) Celebration

Especially Pw8 Ngulube and Pw10 Chafunga. While (6) six witnesses dealt with celebration, (2) two referred to how we were arrested at Kasaya.

During court trial

During court trial

2. ANALYSIS

The matter in the mind of Police and on record is SECEDE. Indeed the nature of our case has no precedence in Zambia or Africa, for it raises so many questions without answers such as what is secession? Is Western province a legal part of Zambia? Is Zambia a monolithic state? What is unitary? Certainly only the High Court can provide answers to these questions.

With regard to LINYUNGANDAMBO, It is a movement that believes in justice and rule of law, not arbitrary control. It never advocated for secession but that Zambia must realize and relinquish her obligations she inherited from Her Majesty the Queen; Elizabeth II of Britain, as envisaged by the ZAMBIA CONSTITUTION REVIEW COMMISSION of 2003. This is what happened when agreements with Britain ceased; and this is NOT SECESSION.

3. According to ZAMBIA INDEPENDENCE ORDER sec 20; Barotzis did not surrender their SOVEREIGNTY and TERRITORY to any new state.

POINTS TO PROVE SECESSION ARE:

i) There, must be more than (1) one territory that came together.

ii) There must be PROVISIONS of LAW or agreement that are binding.

Note, Barotseland map was drawn on 11th June, 1890 before Zambia came into dream; therefore it is illogical to claim that we are seceding from Zambia.

Barotseland cannot secede from Zambia by acknowledging termination of the agreement.

The arresting officer Chafunga concluded in cross examination by confessing that (4) four were charged with treason ON THE BASIS of their role and LITERATURE, but the truth is Ngulube obtained warrant of arrest before he came across any literature.

REF: SECESSION

SUBMISSION

ASSERTION: Between 1st March 2012 and 20th August 2013, we prepared to secede WESTERN PROVINCE from the rest of the sovereign republic of Zambia [section 60 (h) of the penal code].

RESPONSE: The police have brought the matter of their perception in court. Our understanding is that WE ARE DEALING WITH THE ISSUE OF LAW and not a hypothetical matter.

By Law of evidence [Estoppels] and by record, nobody can argue with written words. Needless to explain, we are concerned with Barotseland our country but:-

(i) The case refers to Western Province being part of Zambia.

(ii) The state talks about secession, Barotzis talk about restoration and emancipation; quite different terms.

Firstly, let one establish a fact that Western Province is a legal part of Zambia or historical part of Zambia, before the matter could be admitted for determination; otherwise we are dealing with a PHILOSOPHICAL ISSUE or POLITICAL PHENOMENON!!!

Really no one in his right mind can start talking about divorce before establishing a fact of marriage.

We are dealing with Written Law [Viz; Constitutional Law, Law of Treaties, Law of Contracts and international Law] that requires interpretation and not legal fiction.

Fortunately, the Constitution of Zambia does not contain a provision that refers to Barotseland as being part of Zambia; may be it refers to western province.

Besides, we doubt whether the Constitution of Zambia defines its territory as that which comprises the territories that signed the Barotseland Agreement 1964.

Our understanding is that Law operates on legality while politics operates on abstract principles. It follows then that Western is a result of declarations; and declarations are not laws but political phenomena.

Doubtless, the notion that Barotseland is part of Zambia is “caucus omissus” in the constitution: she only signed the Agreement that was nullified.

There has been no Federal or Union Act and therefore Barotseland, ipso FACTO DOES NOT SECEDE; if to secede means to separate.

NB: BAROTSELAND was a British PROTECTORATE, and by British standard of law, a protectorate is a territory in which sovereignty does not belong to the QUEEN OF BRITAIN but to the King and people of that protectorate.

The Zambian law referred to OBLIGATIONS. Nonetheless, INHERITING OBLIGATIONS of the QUEEN OF BRITAIN by the president was not synonymous with UNIFICATION.

Certainly, the allegation that we were seceding Barotseland was made OUT OF CONTEXT; there is NO LAW that links Barotseland to Zambia. As for western, it is NONENTITY.

We therefore submit that it is not the role of the Courts to deal with HYPOTHETICAL MATTERS.

Our CONSCIENCE and CONVICTIONS are free and clear; we have not committed any offence against Zambia.

Ngulube was trying to deal with an offence implied, not offence committed. Ngulube admitted that his role was to infringe on peoples’ Right to SELF-DETERMINATION.

Barotseland was administered by Zambia by political declaration and slogans, not by law.

To prove that we are not seceding, there is a brochure entitled “Barotseland is NOT seceding” tendered as exhibit, which contradicts the charge.

REF: TREASON FELONY CONTRARY TO SECTION 45 (b) OF THE PENAL CODE CHAPTER 87 OF THE LAWS OF ZAMBIA

OBSERVATION: The charge was prepared and framed in 2013 by Ngulube before we were arrested on 5th December, 2014.

The charge refers to unlawful means in the undertaking; according to the quoted section.

ARGUMENT: It is obvious that nothing unlawful took place or was done; Viz nothing damaged; no one threatened or intimidated or injured or insulted.

One wonders what bearing the assertions that, “My investigation led to the finding that the leader of Linyungandambo was the one who was sworn in as Administrator General of Barotseland” has to crime. Does it imply that Ngulube wanted someone else other than Mr. Mombotwa?

Nonetheless OATH is a religious act, where a person taking oath makes vow to God, that what he/she has promised shall be done, C. F Numbers 30 vs 2 and Zechariah 5 vs 3-4.

No discipline of law, civil law, criminal law, constitutional law, common or international law considers oath as criminal act. The fact that there was oath does not qualify Treason Felony.

RHETORIC QUESTION is which one is lawful means to liberty?

REALITY: The O.A.U Charter on human and people’s rights section 20 (2) stipulates that “Dominated and oppressed people have the right to free themselves from the bond of domination by resorting to any means”. Other international Charters state the same.

ASSERTION: “Whilst acting together with other unknown did prepare to have WESTERN PROVINCE secede from the rest of the sovereign Republic of Zambia”.

OUR POSITION: Barotseland and Zambia were not one, if they were one, there would be no agreement between them, and Zambia could not sign an agreement with herself. There is no Barotseland in Zambia, just as there is no Zambia in Barotseland. Barotseland was a BRITISH PROTECTORATE and BUXTOR COMMISSION OF INQUIRY REPORT OF 1922 sheds more light on the boundary of Northern Rhodesia (Zambia) and Barotseland. The COMMON DENOMINATOR of Barotseland and Zambia was the Barotseland agreement 1964.

ARGUMENT: If secession is the issue, then no body could secede Western because it only exists in the context of belief. IN FACT ALL THE EXHIBITS TENDERED IN COURT REFER TO BAROTSELAND, THE TERRITORY THAT SIGNED AN AGREEMENT.

OBSERVATION: Charge refers to Western but documents and material evidence refers to Barotseland and section 45 (b) does not refer to secession. These are not compatible.

LEGALITY: “Breach of an Agreement by one party to the Agreement entitles the other party the right to invoke breach as the basis for terminating the Agreement”. Unfortunately, this knowledge is lacking in Zambian Policy.

It is indisputable that Barotseland and Zambia are on the same page, both have agreed to the termination of the Agreement, therefore no Treason can arise from the broken Agreement. What is unlawful is to terminate the Agreement and then crave to enjoy the rights derived from the treaty that is nullified.

ASSERTION: Mombotwa did swear as Administrator General of Barotseland.

RESPONSE: We cannot answer charges pertaining to western because we do not know anything about it; moreover, self-determination, independence and liberty are not matters of crime. If these are crimes then Zambia committed the same crime when they wanted independence.

FORCED ASSIMILATION: “The laws of the Republic of Zambia shall not be inconsistent with the provisions of this agreement.” The Barotseland Agreement of 1964 reads in part.

POINT OF VIEW: We do not know if the penal code quoted does not form part of the laws of Zambia. If penal code is part of the laws of Zambia, then it is in conflict with the law of treaties which stipulates that “A party to the treaty cannot apply her internal law as justification for her failure to honour the treaty”.

IN CONCLUSION, therefore, it is the law of treaties that must take it’s course for this matter. Independence, liberty, self -determination, are under the auspices of international law and human rights.

There is no law under the Sun that permits Zambia to coerce Barotseland. The document, material and others tendered in the Zambian court do not invalidate international law in any way.

It will be unfair to persecute us for understanding and knowledge that Barotseland has the right to accept the termination of the relation by Zambia between her ( Barotseland) and Zambia, and that she (Barotseland) has an inalienable right to exist and to self-rule.

Hence, justice does not allow Zambia to claim any right over Barotseland.

Prisoners of conscience.

1. Afumba Mombotwa (signed)

2. Likando Pelekelo (signed)

3. Sylvester Kalima (signed)

Cc. State Advocate

Cc. Defence Counsel

By Legal editor, Barotseland Post

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6 Responses to Afumba and others make final written submission in their defense to Treason charges

  1. Nice one!

    Jim Zimba
    December 20, 2015 at 7:07 pm
    Reply

  2. Teach them law, the illiterates

    Child of the sky
    December 20, 2015 at 8:37 pm
    Reply

  3. The problem in Zambian high court they will not understand even pf (lawyer) presdo cannot.

    TUMELO
    December 21, 2015 at 10:26 am
    Reply

  4. Gentlemen, start by claiming part of Moxico Province in Angola,Cap rive strip in Namibia, Kasane in Botswana, Vic falls in Zimbabwe.Then part of Zambia.It will be easy in fact Zambia is even helping you develop it.It won’t be a problem start with those area fail to that it won’t work here in Zambia.Do you think Stalla can accept.

    LOZI
    December 21, 2015 at 5:31 pm
    Reply

  5. n 1 January 1960 French Cameroun gained independence from France under President Ahmadou Ahidjo. On 1 October 1961, the formerly British Southern Cameroons united with French Cameroun to form the Federal Republic of Cameroon. Ahidjo used the ongoing war with the UPC to concentrate power in the presidency, continuing with this even after the suppression of the UPC in 1971.[18]

    His political party, the Cameroon National Union (CNU), became the sole legal political party on 1 September 1966 and in 1972, the federal system of government was abolished in favour of a United Republic of Cameroon, headed from Yaoundé.[19] Ahidjo pursued an economic policy of planned liberalism, prioritising cash crops and petroleum development. The government used oil money to create a national cash reserve, pay farmers, and finance major development projects; however, many initiatives failed when Ahidjo appointed unqualified allies to direct them.[20]
    Paul Biya has ruled the country since 1982

    Ahidjo stepped down on 4 November 1982 and left power to his constitutional successor, Paul Biya. However, Ahidjo remained in control of the CNU and tried to run the country from behind the scenes until Biya and his allies pressured him into resigning. Biya began his administration by moving toward a more democratic government, but a failed coup d’état nudged him toward the leadership style of his predecessor.[21]

    An economic crisis took effect in the mid-1980s to late 1990s as a result of international economic conditions, drought, falling petroleum prices, and years of corruption, mismanagement, and cronyism. Cameroon turned to foreign aid, cut government spending, and privatised industries. With the reintroduction of multi-party politics in December 1990, the former British Southern Cameroons pressure groups called for greater autonomy, and the Southern Cameroons National Council advocated complete secession as the Republic of Ambazonia.If such things can happen here African why should Mombotwa and his idiot instigate divisions in the country the Queen refused to acknowledge.Therefore,They should hang.

    LOZI
    December 21, 2015 at 5:53 pm
    Reply

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    September 2, 2017 at 7:37 am
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