WHY AND HOW CAPRIVIANS MUST BE FREE: AN ARGUMENT

 By Phil ya Nangoloh*

There has lately been increasing and visible indications that the people of the Caprivi Strip (hereinafter “Caprivi”) yearn for greater freedom in order to determine their own destiny, including total independence, from Namibia.

Mr.Phil ya Nangoloh, Founding Executive Director of NamRights (formerly Namibia’s National Society for Human Rights (NSHR)).
Mr.Phil ya Nangoloh, Founding Executive Director of NamRights (formerly Namibia’s National Society for Human Rights (NSHR)).

 Assuming this is the case, there are, after all, clear and convincing grounds for believing that Caprivi has historically never really been part of the German Protectorate of South West Africa (GSWA) (now Namibia), in the first place. If, in the unlikely event, Caprivi was ever part of GSWA, then such status has since ceased to be, either on July 9 1915, when GSWA troops were defeated by South African forces, or, at the latest, on November 11 1918, when Germany was practically stripped of all its African colonies at World War I (WWI)’s end.

In the above belief I am guided both by my own conscience as a human rights defender extraordinaire and by several authoritative international legal texts. These texts include the provisions of Chapter XI of the UN Charter, with specific reference to Article 73 (e) thereof, Article 1 common to the two International Covenants on Human Rights of 1966, UN General Assembly (UNGA) Resolutions 1514 (XV) of December 14 1960, 1541 (XV) and 1542 (XV) of December 15 1960, 742 (VIII) of November 27 1953, and certain observations contained in the 1966 Advisory Opinion by the International Court of Justice (ICJ) on South West Africa (SWA)[1] as well as the relevant usus of customary international law.

 

 Currently, Caprivi is, for all intents and purposes, an improperly or even illegally-acquired and or improperly-inherited Namibian colony and or a Non-Self-Governing Territory (NSGT). A fortiori, Caprivi must be treated as a colony or an NSGT in terms of international law, while, Namibia, which at independence, on March 21 1990, inherited Caprivi from South Africa, must be treated as an administering Power or a colonizer.

It is submitted that Namibia has inherited the international law obligation to show cause that: (1) the people of Caprivi have attained independence[2], (2) that the people of Caprivi have freely attained another separate system of self-government[3] or (3) that the people of Caprivi have, freely and on equal basis with the people of Namibia, decided to become an integral part of Namibia.[4] Otherwise, Namibia is under the obligation, as contemplated under Article 73(e) of the UN Charter and UNGA Resolution 1542 (XV) of December 15 1960, to transmit, to the UN Secretary General, information on the measures Namibia has undertaken or is undertaking with the view to advance the people of Caprivi to the status whereby they can freely determine their political and economic destiny. Moreover, in terms of the doctrine of State succession, the successor state not only inherits all the good things of the predecessor regime, but also the bad ones. Accordingly, Namibia, at Independence, has inherited all the international obligations over Caprivi, which South Africa has inherited from Britain. After all, in terms of Article 140 of the Namibian Constitution:

“Anything done [under laws which were in force immediately] prior to the date of Independence by the Government or by a Minister or other official of the Republic of South Africa shall be deemed to have been done by the Government of the Republic of Namibia or by a corresponding Minister or official of the Republic of Namibia, unless such action is subsequently repudiated by an Act of Parliament…”.[5]

In the premises, Namibia has become the new colonizer of Caprivi: obviously if you inherit the obligations of a protector or colonizer, by that very measure you have yourself become a protector or colonizer! The international community, within the meaning of UNGA Resolution 1541 (XV) of December 15 1960, has adopted a set of criteria for determining whether or not a territory can be considered an NSGT or a dependent territory or a colony. Consistent with the purposes of Chapter XI of the UN Charter, UNGA Resolution 1541 (XV) defines a colony, an NSGT or a dependent country as any territory which is not only geographically separate, but also ethno-culturally, administratively, politically, economically and or historically distinct from the country administering it.[6]

It is common cause that Caprivi has been historically, geographically, legislatively, judicially and administratively a separate and distinct territory from GSWA (now Namibia). As a matter of fact, Caprivi has so been separate and distinct from Namibia, effectively until June 24 1999, when Namibia formally annexed Caprivi territory in terms of the Application of Laws to the Eastern Caprivi Zipfel Act 1999 (Act 10 of 1999)! 

The Application of Laws to the Eastern Caprivi Zipfel Act 1999 (Act 10 of 1999) was deliberately enacted in order “to provide for the application of certain laws to the Eastern Caprivi Zipfel the operation of which was excluded by virtue of the provision of certain pre-independence laws.” These laws include Section 38(5) of the South-West Africa Constitution Act 1968 (Act 39 of 1968) which provides that “no Act of the Parliament of (the Republic of South Africa and no Ordinance of the Legislative Assembly of the then Territory of South Africa and South West Africa passed on or after November 1 1951 would apply in that part of the said Territory that was demarcated and known as the Eastern Caprivi Zipfel, unless it was expressly declared so to apply”.

 

Geographically

It is common cause that Caprivi is that land-locked and protrusive enclave sharing territorial borders with Namibia, in the west; Angola, in the northwest; Zambia, in the north and northeast; and, Botswana, in the east, southeast, south and southwest. Three perennial rivers surround the enclave: the Kavango River to the west, and Zambezi River in the north, and Linyandi or Chobe River in the south and southeast. Therefore there is prima facie evidence to demonstrate that Caprivi is not only historically and ethno-culturally distinct, but also geographically separate from Namibia.

 

Historically

During the pre-colonial era, Caprivi has been an integral part of Makololo (Bafokeng) kingdom (1821-1864), whose capital was Linyanti, and located between the Zouga River (in present-day Botswana), in the south, and the Zambezi River (including the Victoria Falls area), in the north. Led by a Bafokeng-Sotho King Sebitwane (c.1790-1851), the Makololo Empire included the Barotseland (Bulozi or Lozi) kingdom. Prior to that, Barotseland kingdom included present-day Northwestern, Central and Southern Province of Zambia as well as parts of contemporary southeastern Angola, west of the Cuando River. After the overthrow of Makololo kingdom in 1864, Barotse kings ruled Caprivi as an integral part of Barotseland kingdom. Barotseland kingdom became and remained British Protectorate of Barotzeland (BPB) between 1889 and 1964.

 

That is to say, by the time GSWA (now Namibia) became a German protectorate on April 24 1884, Caprivi, together with the Barotzeland kingdom, was an integral part of BPB. In terms of international law, “a protectorate” is an autonomous territory that is diplomatically or militarily protected by a stronger state or entity against third parties: while in terms of British law, a protectorate is an area the soil of which does not belong to the Crown but whose foreign relations are subject to the Crown’s control in terms of a treaty, grant or capitulation.

 

It is also common knowledge that Caprivi only became somehow loosely associated with GSWA (now Namibia) by accident, following the July 1 1890 Zanzibar-Heligoland Treaty, not as a Germany protectorate, but merely as “a zone of free access” from GSWA (now Namibia) to the Zambezi River.[7] Therefore the doctrine of in convetion bus contrahentium volutas potius quam verba spectari placuit—meaning “in concluding an agreement it is the intention of the parties thereto, rather than the words actually used in the said agreement, which should be considered”—has reference here.

 

From 1890 to 1908, there was no physical presence of Germany, of any kind, in Caprivi. The first ever German official to set a foot in Caprivi was Hauptmann (Captain) Kurt Streitwolf (1871-1954), who arrived there on January 25 1909, and who established an administrative police camp at Luhonono on February 7 1909. Captain Streifwolf renamed Luhonono as Schuckmannsburg. Nevertheless, the exact demarcation of the various border sections of Caprivi was a long process of negotiations which was only finalized in 1933.[8]

 

Germany’s acquisition of both GSWA (now Namibia) and Caprivi was, in any event, short-circuited following the outbreak of WWI on July 28 1914, where after both territories were occupied by the Union of South Africa on behalf of Britain on July 9 1915. Ipso facto, both Caprivi and GSWA became parallel and separate possessions of the Union of South Africa, in accordance with the doctrine of uti possidetis juris (UPJ). In terms of this doctrine, a party to a particular treaty is to retain possession of that which it had forcibly seized during a war. In any event, by 1918 Germany had already practically been stripped (i.e. by capitulation) of all its African colonies. Those colonies were either taken over by Belgium (Rwanda and Burundi), France (Togo and Cameroon) and by Britain (Tanganyika).

 

Germany was formally stripped of all its colonial possessions as provided for in the 1919 Treaty of Versailles, in terms of which both GSWA (now Namibia) and Caprivi (now Namibia) became separate and distinct possessions of Union of South Africa acting on behalf of His Britannic Majesty.As a result, after WWI, Caprivi was separately administered by the Colonial Office in London as an integral part of Botswana, which, on March 31 1885, had become British Bechuanaland Protectorate (BBP). At the time BBP was bordered by British Bechuanaland (now part of South Africa), to the south, GSWA (now Namibia) to the west, Portuguese Angola to the northwest, the Zambezi River and Northern Rhodesia (now Zambia), to the north, and Southern Rhodesia (now Zimbabwe), to the east.

 

On December 17 1920, by which time former GSWA (now Namibia) become a League of Nations Mandate territory, Caprivi remained under direct Union of South Africa rule either as a separate entity or as an integral part of BBP. However, Caprivi was later included in the class C-Mandate regarding former GSWA (now Namibia) apparently in accordance with a misguided argument that Caprivi was part of GSWA ab initio  from April 24 1884.

 

In 1972 South Africa afforded Caprivi internal autonomy with its own national anthem and emblem as well as its own Legislative Council which could make its own decisions concerning its development. Nevertheless, in terms of external relations, Caprivi remained a South African protectorate directly administered from Pretoria by the Minister of Bantu Affairs and Development. Consequently, certain laws specific to South African-occupied former GSWA (now Namibia) and subsequently independent Namibia were not applicable to Caprivi. As it has been stated above, the Application of Laws to the Eastern Caprivi Zipfel Act 1999 (Act 10 of 1999), which entered into force on July 12 1999, was only promulgated on June 24 1999 extending the laws of Namibia to Caprivi!  

 

Administratively

 

Therefore there is clear and convincing evidence that, between December 17 1920 and April 20 1946 (when the League of Nations ended), Caprivi remained controlled and administered by the Union of South Africa as a separate and distinct territory from former GSWA (now Namibia). Such control and administration were executed in accordance with three distinct phases of administration. Moreover, this separate administration and control of Caprivi was instituted with the full knowledge, consent and or acquiescence of the League of Nations, including its Permanent Mandates Commission, and subsequently the United Nations. Again, the laws which applied to SWA (now Namibia) were not applicable to Caprivi and vice versa!

 

Hence, from the very inception of said Mandate, and because Caprivi has been geographically separate and ethno-culturally distinct from SWA (now Namibia), special measures had to be instituted for the control and administration of Caprivi.

 

Firstly, between 1921 and 1929 and, in accordance with South African Proclamation 1922 (Proclamation 12 of 1922), Caprivi was been ruled by British High Commissioner for South Africa or the Governor-General thereof, who was also in charge of the British Bechuanaland Protectorate (BBP). In terms of South African Proclamation 1922 (Proclamation 23 of 1922), the said High Commissioner administered Caprivi as if it were an integral part of BBP since January 1 1921. Hence, the laws of BBP were therefore also applicable to Caprivi.

 

Again, this state of affairs was necessitated by the fact that Caprivi was geographically separate from SWA as well as the fact that there was lack of communication between the two territories (Caprivi and SWA). This scheme of things had made it practically impossible for Caprivi to be administered from the Mandate territory of SWA as an integral part thereof. Hence, during its 3rd session in 1923, the aforementioned Commission, Sir Frederick Lugard pointed out that Caprivi had been detached from the administration of SWA and, hence, no annual reports could be submitted to the said Commission by the administrator of SWA in respect of Caprivi. Accordingly, the said Mandates Commission, in its special observations regarding administrative organization in SWA:

 

“… took cognizance of the fact that that part of the mandated territory which was known as Caprivi Zipfel had, for geographical reasons, been detached from the general administration of the territory and was administered under the direct control of the Governor-General for South Africa”.[9]

 

Furthermore, in a memorandum dated November 20 1925, it was explained that:

 

“[T]here were two administrators for South West Africa, each exercising the authority delegated to him by the Mandatory: firstly the Administrator of [South West Africa] with the exclusion of [Caprivi], and secondly, the Administrator of [Caprivi]. In both cases the supreme authority was in the hands of the Mandatory, on whose instructions the two Administrators acted”.[10]

 

Secondly, between 1929 and 1939, and following some complaints from certain individual members of said Commission regarding “the propriety” of administering [Caprivi] through BBP and subject to the laws applicable to BBP, the administration of Caprivi was transferred from BBP to the SWA Administration. This was accomplished in terms of South African Proclamation 1929 (Proclamation 196 of 1929) and, hence, the Administrator of SWA was also appointed as Administrator of Caprivi. Therefore the laws of SWA (now Namibia) were also applied to Caprivi in terms of South African Proclamation 1929 (Proclamation 26 of 1929).[11]

 

However, during the same period (being 1929 and 1939), constant difficulties have been encountered in the administration of Caprivi from Windhoek due to Caprivi’s geographic inaccessibility from SWA (now Namibia). As a result, the SWA Administration had to request the Union of South Africa to be relieved of all its administration of Caprivi.

 

Hence, between 1939 and 1966 and following the aforementioned request by the SWA Administration, the administration of Caprivi was transferred back to the Union of South Africa under the Minister of Native Affairs. This had been instituted in terms of South African Proclamation 1939 (Proclamation 147 of 1939), whose preamble, inter alia, read as follows:

 

“Experience has shown that the geographical position of that portion of the Caprivi Zipfel […] referred to as the Eastern Caprivi Zipfel, makes it expedient that it should be administered by the Minister of Native Affairs of the Union or by another Minister of the State of the Union acting on his behalf”.[12]

 

The aforementioned Commission was satisfied that administering Caprivi from SWA was impracticable and, hence, the said Commission had no objection to the separation of the administration of Caprivi from that of SWA provided that such separation was intended to operate for the benefit of the inhabitants of Caprivi, and this includes political advancement leading to self-determination.[13]

 

Thirdly, since April 1 1955, Caprivi was administered as a Native Reserve by the South African Minister of Bantu Affairs, who has also exercised control, on behalf of the Republic of South Africa (no longer under British control since 1948 already), over Native Affairs in SWA. However, where all administrative matters in Caprivi remained under the control of the South African Minister of Bantu Affairs, in SWA, the local administrator controlled only certain aspects of government, such as education, public health services, which concern all inhabitants, including non-Natives.[14]

 

The League of Nations was duly informed it consented to the transfer of the administration of Caprivi from SWA directly to South Africa.Hence, in its 1966 advisory opinion on SWA, theInternational Court of Justice (ICJ) noted that:

 

“From the very inception of the [League of Nation’s Mandate for South West Africa], difficulty was experienced in effectively controlling that portion of the territory east of a line between 23 [degrees] and 24 [degrees] longitude, known as the Eastern Caprivi Zipfel (but often referred to as the Caprivi Zipfel, or simply as the Caprivi), because of its geographical situation and the lack of communications with the rest of South West Africa. These circumstances gave rise to special provisions for the administration of the area”.[15]

 

Hence, in its report the League of Nations expressed the hope that the Union of South Africa government would comply with their mandate to devote more time to the welfare of the native people of Caprivi with the view to prepare them for self-determination. This explains why ICJ has also noted in its 1966 Advisory Opinion on SWA that:

 

“It must furthermore be borne in mind that the Eastern Caprivi is mainly inhabited by two tribes which have never had connections with other Native groups in South West Africa, and that the territory inhabited by them, being geographically almost completely isolated from the rest of South West Africa, has problems peculiarly its own. The rest of the area have not yet advanced to a stage of political maturity, but in the meantime they are, in the same manner as other Native groups in the Territory, being gradually educated to play an ever-increasing part in the control and management of their own affairs. Since 1955, as has been shown above, there has been less administrative separation than there was over the period 1939 to 1955. Such administration differences as do exist at present can in no way interfere with the political and general advancement of the Caprivi people towards possible self-determination, and do not frustrate opportunities for progress in that direction.”[16]

 

In light of all the above, I have come to the conclusion that the people of Caprivi are entitled to be afforded the opportunity to freely determine whether or not to exercise their inalienable right to self-determination, including total independence, from Namibia. Again, in coming to this conclusion I am guided by my conscience and by inter alia UNGA Resolution 1514 (XV) of December 14 1960 in terms of which the necessity which a speedy and unconditional end colonialism in all its forms and manifestations is solemnly proclaimed and in terms of which the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the UN Charter and is an impediment to the promotion of world peace and co-operation as well as in terms of which the inalienable right of all peoples to self-determination, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development, is recognized.[17]

 

Consistent with the principles of international law as embodied in the Universal Declaration of Human Rights, the provisions of Chapter XI of the UN Charter and UNGA Resolutions 1514 (XV) of December 14 1960 and 1541 (XV) of December 15 1960 as well as the 1966 ICJ Advisory Opinion SWA, I strongly urge Namibia to immediately cease its real or perceived repressive measures of any kind directed against the people of Caprivi and thereby allow them to peacefully and freely determine whether or not they want complete independence, internal self-determination or they want to remain an integral part of Namibia.

 

In order to create conditions conductive to the exercise of all the freedoms enunciated under Article 21 of the Namibian Constitution and thereby determine their own destiny, all Caprivi political prisoners, whomsoever they may be, must be released, all Caprivi refugees and other exiles must be allowed to freely and unconditionally return to their motherland and the banning of the United Democratic Party (UDP) must be lifted.

 

*Phil ya Nangoloh is founder and executive director of NamRights (formerly Namibia’s National Society for Human Rights (NSHR)). However, this argument is made in his own personal capacity and all the views expressed herein are exclusively his own. This argument is dated September 9 2013

 

 

[1]“Administrative Separation of the Eastern Caprivi Zipfel”, South West Africa Cases Volume IV 1966, p.106-118

[2]First Part, Factors Indicative of the Attainment of Independence, UNGA Resolution 742(VIII) of November 27 1953

[3]Second Part, Factors Indicative of the Attainment of Other Separate Systems of Self-Government, UNGA Resolution 742(VIII) of November 27 1953

[4]Third Part, Factors Indicative of the Free Association of a Territory on Equal Basis with the Metropolitan or Other Country as an Integral Part of that Country or in any Other From, UNGA Resolution 742(VIII) of November 27 1953

[5]Article 140(3) of the Namibian Constitution

[6]see Principles IV and V of Principles which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for in Article 73e of the Charter of the United Nations, annexed to UNGA Resolution 1541 (XV)

[7]“Administrative Separation of the Eastern Caprivi Zipfel”, South West Africa Cases Volume IV 1966, p.106

[8]“The Caprivi Strip – Result of a Diplomatic Blunder”, http://www.gondwana-collection.com/blog/index.php/tag/german-south-west-africa/

[9]paragraph 6, “Administrative Separation of the Eastern Caprivi Zipfel”, South West Africa Cases Volume IV 1966 p.107

[10]paragraph 9, “Administrative Separation of the Eastern Caprivi Zipfel”, South West Africa Cases Volume IV 1966 p.107-108

[11]paragraph 12, “Administrative Separation of the Eastern Caprivi Zipfel”, South West Africa Cases Volume IV 1966, p.109

[12]paragraph 16, “Administrative Separation of the Eastern Caprivi Zipfel”, South West Africa Cases Volume IV 1966, p.110

[13]paragraph 19(c), “Administrative Separation of the Eastern Caprivi Zipfel”, South West Africa Cases Volume IV 1966, p.111

[14]paragraph 21, “Administrative Separation of the Eastern Caprivi Zipfel”, South West Africa Cases Volume IV 1966, p.112

[15]paragraph 5, “Administrative Separation of the Eastern Caprivi Zipfel”, South West Africa Cases Volume IV 1966, p.106

[16]paragraph 36, “Administrative Separation of the Eastern Caprivi Zipfel”, South West Africa Cases Volume IV 1966, p.118

[17]paragraphs 1 and 2, UNGA Resolution 1514 (XV) of December 14 1960

 


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