WHAT DOES THE SOUTH AFRICAN SUPREME COURT DECISION MEAN FOR HOW ZAMBIA BURIES ITS PRESIDENTS GOING FORWARD?
Today, the South African Supreme Court of Appeal, in a case involving the Lungu family and the Government of the Republic of Zambia, delivered a judgment halting the repatriation of the remains of former President Edgar Chagwa Lungu, setting aside an earlier High Court decision that had allowed the Zambian government to bring the body back home.
Personally, I feel this judgment has more to do with protecting the reputation of the attorney representing the Lungu family than with the interests of justice. In my view, the decision appears to have been made in South Africa’s interest, as it would have been embarrassing for their newly appointed Deputy Chief Justice to lose a case after a long record of courtroom success.
Otherwise, as highlighted in the dissenting judgment, the grounds relied upon were insufficient and, in that view, not adequately supported by law. The court completely ignored the laws and traditions of the country of origin for the departed and instead imposed the laws of South Africa to determine a Zambian case. Again, this is just an opinion.
But what does this decision mean for Zambia?
In practical terms, the judgment changes nothing regarding how Zambia buries its presidents. It remains both a legal requirement and a national tradition that former and sitting presidents are accorded state burials.
Another question many people are asking is whether this judgment now means that the Lungu family can choose to bury the former President either in South Africa or in Zambia.
The answer is yes.The family may choose to bury him in South Africa, and if they do so, it will be a private burial conducted in accordance with their wishes and the laws of that country.
However, if they decide to bring the body to Zambia, the situation changes. Once the remains are repatriated, the Zambian state assumes responsibility, and Zambian law and and our national traditions become applicable. In that case, the wishes of the family regarding where and how the former President should be buried within Zambia may not take precedence over the legal provisions governing state funerals and presidential burials.
Therefore, this judgment does not alter Zambia’s laws, the tradition, or national practices concerning the burial of former or sitting presidents.
The only precedent that appears to have been established is that when a former or sitting Zambian President dies outside the country, the family may challenge the state’s position under the laws of the host country if there is a dispute regarding repatriation or burial arrangements.
What should we do as a country? We need to urgently amend our Constitution and introduce clear legal provisions that will govern the burial of Presidents and other national leaders.
We cannot continue relying solely on the precedent set in the Kaunda Family vs. the Government of Zambia case, as judicial precedents can be challenged or interpreted differently under varying circumstances and jurisdictions.
A well defined consitirutional and legal framework will provide certainty and prevent unnecessary disputes whenever such matters arise.