By Deeleslie Mondoka
A FUNERAL, A FAMILY, AND A NOSY GOVERNMENT MISTAKING PROTOCOL FOR LAW
Picture this:
A former President of Zambia dies while in South Africa.
The nation mourns. Government officials dust off the state-funeral playbook, polish the ceremonial shoes, and begin preparing the speeches. Meanwhile, the family folds its arms and says:
“Hold on. Before he was a former President, he was our husband, father, brother, and relative.”
And just like that, a legal fight was born.
The matter landed before a South African court, which had to answer a surprisingly simple question:
Who gets the final say over President Lungu’s remains: the family or the State?
The Court’s answer was short, sharp, and powerful:
The family.
Why?
Because the dispute was being decided under South African law, and South African common law has long treated burial as a family matter. The judges essentially said that when a person dies, Government does not suddenly acquire ownership rights over the body like a neighbor claiming your bicycle simply because he admired it for years.
Unless there is a law saying otherwise, or a valid agreement saying otherwise, burial decisions belong to the family.
The Zambian Government argued that President Lungu was no ordinary citizen. He was a former Head of State. National interests, protocol, and ubuntu, it said, justified a state-led burial.
The Court’s response was simple:
“Fine sentiments. But where is the law?”
And that was precisely the problem.
No convincing evidence was produced showing that Zambian law, custom, or protocol automatically gives Government the right to take control of a former President’s burial. The Court reminded everyone that foreign law must be proved by evidence, not by assumptions, emotions, or patriotic enthusiasm.
Government then tried another route.
It argued that the family had already agreed to bring the body back to Zambia and allow a state funeral.
But the Court found that the parties had merely been negotiating.
And every lawyer knows the difference.
Talking about a deal is not the same thing as making one.
Looking at the menu does not mean you have ordered the nshima.
The family’s position from the beginning was that President Hichilema should not participate in the funeral. The Court found no convincing evidence that they had ever changed their minds.
But hidden beneath the courtroom drama was a much bigger lesson.
Governments are supposed to be creatures of law. Their powers should come from statutes and legal rules, not from wishful thinking dressed up in ceremonial attire.
Yet this case exposed a troubling gap.
Government pressed forward without pointing to a clear law explaining what happens when a former President dies. Instead, reliance appeared to be placed on protocol, custom, and judicial remarks that were, at best, obiter dicta: “observations made in passing rather than the actual legal foundation of a previous decision.”
That is a bit like trying to build a house using the architect’s jokes instead of his blueprint.
The jokes may be funny.
They may even contain wisdom.
But they will not stop the roof from collapsing.
And that is the real significance of this case.
It reveals the urgent need for Parliament to enact a clear law governing the funerals, honours, and burial arrangements of former Presidents and other senior public officials.
Questions of such importance should not be left to guesswork, negotiations, political pressure, or courtroom battles after emotions have already boiled over.
A country cannot comfortably navigate matters of national importance on the shaky scaffolding of implication and assumption.
Sooner or later, somebody falls through the floor.
So, the family won.
WHAT DOES THIS MEAN FOR ORDINARY CITIZENS?
Strictly speaking, this judgment does not determine the rights of Zambians under the Zambian Constitution. It is a South African judgment applying South African law.
But it does illustrate a principle recognized in most constitutional democracies:
If Government claims a special power, it must point to a law that gives it that power.
“Because we have always done it this way” is a tradition.
It is not a statute.
More importantly, the case serves as a warning for Zambia. It exposes the uncertainty that arises when a country lacks a clear legal framework governing the death, funeral, and burial arrangements of former Presidents.
Without such legislation, future disputes risk becoming contests of politics, protocol, and public sentiment rather than questions answered by law.
And for the Lungu family, the judgment meant that the Court recognised their right, under the law it was applying, to honour President Lungu’s wishes and remain in control of his final journey.
MORAL OF THE STORY?
The State may organise ceremonies, but it cannot rewrite rights simply because the deceased once occupied the highest office in the land.
And where the law has left a vacuum, the answer is not improvisation by government officials but legislation by Parliament.
Because in a nation governed by law, even the grandest funeral procession must march behind the law, not ahead of it.
Disclaimer:
My commentary on this decision is no more a legal critique than a campfire tale is a treatise on thermodynamics. It is, rather, a dramatized retelling, a lively reenactment if you will, of the judicial clash, unburdened by the solemn drudgery of analysis and delivered with the unapologetic zest of a storyteller who knows a good duel when he sees one.
Laws are made by man to serve man. In traditional Zambia, there was no coded Law, but customs, precedents sensibleness and wisdom were Laws unto themselves. Sometimes we tend to follow Laws made by other people blindly without understanding why such laws were crafted that way and whose interests such Laws were to serve. Yaba!!