THE EDGAR CHAGWA LUNGU SUPREME COURT JUDGMENT IN SOUTH AFRICA: WHAT IT SAYS, WHAT IT DOES NOT SAY, AND WHAT IT MEANS
By Wynter M. Kabimba, SC, ODS
Introduction
The death of former Zambian President Edgar Chagwa Lungu (ECL) on June 5, 2025, in South Africa, where he had traveled for medical treatment, gave rise to an unprecedented constitutional and legal dispute between his family and the Government of the Republic of Zambia. What would ordinarily have been a solemn period of mourning evolved into protracted litigation spanning more than a year before the South African courts.
The dispute was not over whether President Lungu deserved a dignified burial, but rather over who possessed the legal authority to determine the manner in which he should be buried. The Zambian government maintained that, as a former Head of State and Commander-in-Chief of the Zambia Defence Force, President Lungu was entitled to a state funeral with full military honors and burial at Embassy Park in Lusaka. The family did not reject a state funeral outright; rather, it insisted that such a funeral could proceed only if President Hakainde Hichilema, the incumbent Head of State and Commander-in-Chief, neither attended nor participated in the proceedings.
Unable to resolve the impasse through negotiations, the Zambian government instituted proceedings before the South African High Court seeking authority to repatriate President Lungu’s remains. The High Court ruled in favor of the government. The family successfully appealed that decision to the Supreme Court of Appeal.
This article examines the principal findings of both courts, identifies the legal reasoning adopted by the Supreme Court, and considers the broader constitutional implications of its judgment.
The Supreme Court’s Foundational Premise
The Supreme Court introduced its judgment with an unusually reflective discussion on grief and the significance of burial. It observed:
“The death of a loved one inevitably evokes grief for the family of the deceased. The burial of the earthly remains is an important rite… The perimeter of grief extends outwards when a deceased is a former head of state, embracing not just family and friends but also the nation.”
Although introductory in form, these remarks provide the philosophical framework upon which the remainder of the judgment rests.
The Court appears to advance two propositions.
First, it recognizes the family as the primary bearer of the legal and emotional interests arising from the death of the deceased.
Second, although acknowledging that the nation possesses a legitimate interest in mourning a former President, it characterizes that national interest as secondary and derivative, existing only as an extension of the family’s grief rather than as an independent constitutional interest deserving equal protection.
This conceptual framework significantly influenced the Court’s subsequent analysis of the competing rights asserted by the parties.
The High Court Judgment
Proceedings were instituted before the High Court on June 25, 2025. After considering the evidence presented, the Court ordered that:
1. The Government of Zambia was entitled to repatriate the remains of former President Edgar Lungu to Zambia for a state funeral and burial at Embassy Park.
2. The funeral home holding the remains was directed to surrender the body to representatives of the Zambian High Commission to facilitate repatriation.
3. Members of the Lungu family were entitled to be present during the implementation of the order.
The High Court’s decision rested principally upon its finding that the parties had already concluded a binding agreement regarding repatriation.
After analyzing the grammar, syntax, chronology, and context surrounding the tentative burial program designated “FAA7,” the Court concluded that the document constituted a legally enforceable agreement. It found no genuine dispute of fact regarding the parties’ intention to repatriate the former President’s remains to Zambia for a state funeral and burial.
The High Court further held that, although the litigation was being conducted within South African jurisdiction, the substantive law governing the dispute was Zambian law. In support of that conclusion, the Court relied upon the precedent established in the litigation concerning the burial of Zambia’s founding President, Dr. Kenneth Kaunda.
The Supreme Court Judgment
On June 23, 2026, the Supreme Court of Appeal reversed the High Court’s decision.
Central to its reasoning was the distinction between private burial disputes among family members and disputes involving the exercise of governmental authority.
The Court stated:
“Of significance in this appeal is that the burial dispute… involves the claim to a right of burial as an exercise of public power by a state against the avowed wishes of the affected family.”
Proceeding from that premise, the Court held that constitutional protections afforded to the family’s rights to dignity, privacy, and family autonomy required heightened judicial protection against governmental intrusion.
The Court further observed:
“Absent a clear and convincing legal basis for finding differently, it would not be constitutionally permissible for the Zambian government’s interests to override those of the family.”
The Supreme Court also reaffirmed the long-established common-law principle that, where the deceased leaves no binding burial instructions, decisions concerning burial ordinarily belong to the deceased’s heirs under the law of succession.
In the Court’s view, this common-law principle aligns with constitutional guarantees of dignity and privacy by recognizing burial decisions as among the most intimate expressions of family autonomy.
Accordingly, the Court concluded that governmental interference with those decisions constituted an infringement of constitutionally protected rights unless expressly authorized by law.
The Significance of the Dissent
The judgment was not unanimous.
One member of the Court delivered a dissenting opinion, agreeing substantially with the reasoning of the High Court.
The dissenting judge concluded that the documentary evidence established a binding agreement obligating both the family and the Zambian government to proceed with repatriation and a state funeral.
Importantly, the dissent rejected the proposition that enforcing such an agreement would infringe the family’s constitutional rights. Rather, it viewed enforcement as giving effect to voluntarily assumed legal obligations.
The existence of a reasoned dissent is significant. It demonstrates that the legal issues before the Court were genuinely arguable and that the Zambian government’s case was neither frivolous nor an abuse of judicial process. Instead, the litigation presented difficult constitutional questions concerning the intersection of public authority, contractual obligations, and family autonomy.
Observations on the Majority Judgment
While the majority judgment undoubtedly establishes important constitutional principles concerning dignity, privacy, and family autonomy, several aspects of its reasoning warrant closer examination.
First, although the Court acknowledged the existence of competing interests between the family and the Zambian government, it did not clearly articulate the constitutional methodology by which those competing interests should be balanced. Instead, the judgment largely assumes that the family’s constitutional rights necessarily prevail.
Second, the Court repeatedly characterized the government’s conduct as an exercise of “excessive State power” without comprehensively identifying the legal threshold by which governmental action became excessive in the circumstances.
Third, although the Court concluded that the government’s actions interfered with the family’s constitutional rights, the judgment contains comparatively limited analysis of whether such interference was legally justified in light of the government’s asserted constitutional responsibilities toward a deceased former Head of State.
Finally, the judgment leaves unresolved the broader constitutional question concerning whether a sovereign state possesses an independent public interest in the burial of its former Head of State that may, in appropriate circumstances, coexist with or even outweigh private family interests.
Conclusion
The litigation concerning President Edgar Lungu’s burial represents one of the most significant constitutional disputes to arise between South Africa and another sovereign African state.
The Supreme Court ultimately elevated the constitutional rights of the family above the governmental interests asserted by Zambia. Whether that balancing exercise was correct will remain a matter of legitimate legal debate.
It is noteworthy that, when former South African President Nelson Mandela died in December 2013, the South African state organized an elaborate ten-day state funeral attended by hundreds of international dignitaries. It is difficult to predict whether, had a comparable dispute arisen between the Mandela family and the South African government, the courts would have applied precisely the same constitutional analysis adopted in the Lungu litigation.
Given the constitutional importance of the issues involved, and the existence of a carefully reasoned dissenting judgment, it is arguable that the matter warranted further consideration by the Constitutional Court. Such an appeal could have provided greater clarity regarding the proper constitutional balance between family autonomy and the legitimate public interests of the state in the burial of a former Head of State.