Why should a Foreign Government demand another sovereign country to abandon its own law and use foreign law – Lungu Family Lawyer questions

Why should a Foreign Government deman another sovereign country to abandone its own law and use foreign law – Lungu Family Lawyer questions

….as Zambian Government’s Demand in Lungu Burial Dispute Raises Alarming Questions of Law and Sovereignty…..

SOUTH AFRICA 8th September, 2025

Constitutional and human implications is unfolding in the South African High Court, where the family of Zambia’s late president, Dr. Edgar Chagwa Lungu, is resisting what they describe as an “intrusion” by the Zambian government into their most private and sacred decision: where and how their loved one should be laid to rest.

At the heart of the dispute is an unprecedented demand by the Zambian state that South African courts apply Zambian law to compel the return of Mr. Lungu’s remains to Lusaka for burial, despite his widow’s wishes to the contrary. The move, argued by the state, is grounded in benefits and entitlements tied to his former presidential office.

But to the Lungu family, represented by the respected advocate Tembeka Ngcukaitobi, the case goes far beyond burial rites. It is about sovereignty, dignity, and the fundamental question of whether a foreign government can extend its reach into another country’s courts to dictate the treatment of human remains.

In court, Ngcukaitobi made it clear: “This is the first matter we are aware of where a foreign state comes to South African courts and demands that its law be applied extraterritorially. It is a deeply unsettling precedent.”

The case has drawn sharp attention because of its uniqueness. Legal analysts say that while cross-border disputes are not new, the attempt to enforce burial rights through a foreign government is without parallel.

This is not a case of enforcing a commercial contract or resolving a trade dispute. We are talking about the bones of a human being, a former president, and a widow’s right to mourn him as she chooses. That another state believes it can impose its law in this context should alarm all of us.

The Lungu family’s case rests on a simple but powerful principle: a corpse has no rights. Rights belong to the living in this instance, to the widow, Mrs. Esther Lungu, who holds the natural authority to decide how and where her husband is buried.

Adv. Ngcukaitobi argued that any suggestion otherwise is a distortion of law and logic.

“Once life ends, rights also end. What the Zambian government is attempting to do is artificial: to reinstate rights and benefits on a corpse. But those benefits, if they exist at all, are for the widow, not for the deceased.”

This argument cuts to the core of the Kaunda precedent, which the Zambian government has leaned on. In Kaunda’s case, the former president died while still enjoying state benefits. By contrast, Edgar Lungu’s presidential benefits had been withdrawn before his death, making any attempt to reinstate them posthumously a legal impossibility. The family insists that the state’s position not only strips Mrs. Lungu of her dignity but also tramples on the constitutional rights of a widow, who cannot be compelled to accept benefits or burial arrangements against her will.

What complicates matters further is the tension between Zambian law, South African law, and universal principles of human dignity. South African courts must now grapple with whether they can, or should, enforce another country’s laws in such a sensitive matter. As Ngcukaitobi reminded the bench, the law of a foreign state is treated as a matter of fact in South African courts it must be proven through expert evidence, not simply asserted. In this case, the Zambian state has not provided affidavits from legal experts to establish what Zambian law actually is.

Even if such evidence were produced, Zambia’s own legal history is complicated, drawing from both English common law and Roman-Dutch traditions. Both traditions, however, converge on one point: the burial decision lies with the heirs, not the state. Adding to this complexity is Zambia’s Constitution, which, like South Africa’s, enshrines rights to privacy, dignity, and equality. Ngcukaitobi argued that these rights would have protected Mrs. Lungu in Zambia just as they do in South Africa.

Perhaps the most unsettling element of the case is the broader precedent it threatens to set. If South African courts allow Zambia to dictate the terms of this burial, what stops other states from making similar demands in the future?

“The uniqueness of these facts shows why it must be resolved by the Supreme Court of Appeal,” Ngcukaitobi said.

“The case is about more than the Lungu family. It is about protecting the sovereignty of our courts and the rights of families from being overridden by foreign powers.”

Behind the legal arguments lies a grieving family caught in a storm of politics, law, and diplomacy. For Mrs. Lungu, the case is not an academic debate but a deeply personal struggle to preserve her husband’s dignity and her right to mourn him on her own terms.

“What you cannot have,” Ngcukaitobi told the court, “is a government seeking to override the widow’s decision on how to bury her husband. That is not just law that is humanity.”

The family has made it clear: they are not refusing burial. They are refusing state control of what is an intimate, family decision. The High Court is now weighing whether to grant leave to appeal, potentially escalating the matter to the Supreme Court of Appeal. Should it reach that stage, the judgment will likely be scrutinised across the continent for its implications on sovereignty, family rights, and the reach of state power.

For the Lungu family, the case has already been a painful reminder of how political and legal battles can intrude into private grief. Yet they remain resolute, determined to ensure that no government foreign or domestic can dictate the burial of a loved one against the wishes of the family. As one legal observer put it:

“This case is not just about Zambia, or South Africa, or the Lungu family. It is about the line between state power and human dignity. And once that line is crossed, it is very difficult to redraw.”