LEGAL OPINION: In the Matter of Zambia's Application for the Repatriation of Edgar Lungu's remains from South Africa - The Zambian Observer
LEGAL OPINION
In the Matter of the Government of the Republic of Zambia’s Application for the Repatriation of the Remains of Former President Edgar Chagwa Lungu from the Republic of South Africa
Prepared for: Interested Legal and Diplomatic Stakeholders
By: Mulisa jones
1. Introduction
This legal opinion addresses the implications of the Government of the Republic of Zambia’s attempt to initiate legal proceedings in the Republic of South Africa for the repatriation of the remains of former President Edgar Chagwa Lungu. Specifically, Zambia has named the South African Minister of International Relations and Cooperation as a respondent in the matter, raising grave legal and diplomatic concerns. This opinion analyzes the matter through the lens of international law, South African constitutional and common law, and applicable treaty provisions, with particular focus on the rights of the deceased, the family, diplomatic immunity, and the jurisdictional limitations of foreign states.
2. Diplomatic Immunity and the Vienna Convention on Diplomatic Relations
The decision to list the Minister of International Relations and Cooperation of South Africa as a respondent constitutes a direct breach of the Vienna Convention on Diplomatic Relations, 1961, to which both Zambia and South Africa are State Parties. Article 29 of the Convention unequivocally states:
> “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”
By naming a sitting foreign minister in litigation arising from her official acts, Zambia has engaged in an act that violates one of the most sacrosanct norms of international law: the principle of diplomatic immunity, which is both treaty-based and customary in nature.
This principle was reaffirmed in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 ICJ 3, where the International Court of Justice held that foreign ministers enjoy absolute immunity from both civil and criminal jurisdiction in foreign states, even for alleged crimes under international law. If Belgium could not prosecute Congo’s foreign minister for alleged war crimes, Zambia certainly lacks standing to sue South Africa’s for diplomatic and administrative decisions related to the remains of a foreign national.
Additionally, the UK Supreme Court in Reyes v Al-Malki [2017] UKSC 61 reaffirmed that diplomatic immunity applies to both public and private acts undertaken during the course of diplomatic duties. In the present case, decisions made by the Department of International Relations and Cooperation (DIRCO) fall squarely within the scope of such protected conduct.
3. Jurisdiction and South African Law on Burial Rights
Under South African law, the right to bury the deceased lies primarily with the family, unless the deceased has left express instructions to the contrary. The courts have consistently upheld the supremacy of familial rights in burial disputes:
In Carelse v Estate De Vries (1906 TS 525), the court recognized the right of the surviving next of kin to make burial arrangements, regardless of the estate’s financial interests.
In Gumede v Subjee and Another [2009] ZAGPJHC 1, the Johannesburg High Court affirmed that burial decisions must reflect the dignity of the deceased and the cultural and religious rights of the bereaved family under Section 15 and Section 31 of the Constitution.
In Tshabalala v Tshabalala 1980 (1) SA 134 (W), the court prioritized the personal wishes of the deceased and their surviving spouse, emphasizing that the burial site is not a state matter but a private, culturally sensitive decision.
Moreover, in Makate v Makate 2016 (4) SA 121 (CC), the Constitutional Court recognized the importance of respecting family autonomy and dignity in the resolution of personal matters, particularly those involving legacy and status.
These cases echo the constitutional imperative under Section 10 of the Constitution of the Republic of South Africa, 1996, which provides:
> “Everyone has inherent dignity and the right to have their dignity respected and protected.”
Thus, any attempt by a foreign government to override the wishes of the deceased’s immediate family regarding burial would be unconstitutional unless supported by valid, express consent from the deceased or a binding judicial order issued within lawful bounds.
4. Statutory Interpretation: Zambia’s Former Presidents’ Benefits Act
The Zambian government has relied on the Benefits of the Former Presidents Act as justification for its claim to preside over President Lungu’s burial. This reliance is, however, legally untenable.
Section 6 of the Act provides:
> “Where a former President who is entitled to the pension and other benefits conferred by this Act dies while in or after having left office, his spouse and any children of the family who have attained the age of twenty-one years shall be entitled jointly to [enumerated benefits]…”
While this section outlines continued financial benefits to the surviving family, it does not confer custodial rights over the deceased’s remains to the state. Among the benefits listed are access to an office, medical insurance, and funeral expenses. These are supportive provisions, not controlling instruments.
More critically, Section 5 of the Act provides for the withdrawal of such benefits under specific circumstances, and the Act is silent on any mechanism for reinstatement once those benefits have been rescinded. Therefore, even if the initial withdrawal of benefits was arguably unlawful, the state cannot retroactively assert rights that no longer exist under statute.
Schedule 12 of the Act, the only portion referencing death-related obligations, merely authorizes reimbursement of funeral expenses and does not extend to the authority over the conduct, location, or symbolism of the funeral itself.
Accordingly, any reliance on this statute to claim extraterritorial control over the deceased’s burial is devoid of legal foundation. Domestic law does not have force in another sovereign jurisdiction, and it certainly cannot override that state’s constitutional and customary legal protections for the family and deceased.
5. International Human Rights Law and the Rights of the Deceased
Under international human rights law, the dignity of the deceased and the rights of families to bury their loved ones according to their cultural and religious customs are widely recognized:
Article 17 of the International Covenant on Civil and Political Rights (ICCPR) protects the right to privacy and family life, including burial practices.
The African Charter on Human and Peoples’ Rights, in Article 18(1), protects the family as the natural unit of society and entitles it to protection by the state.
In Pretty v United Kingdom (2002) 35 EHRR 1, the European Court of Human Rights acknowledged that decisions concerning death and bodily autonomy fall within the ambit of the right to private and family life under Article 8 of the ECHR, a principle now widely accepted in international jurisprudence.
6. Legal and Diplomatic Implications
Zambia’s attempt to compel South African authorities through legal process to surrender the body of President Lungu, particularly through litigation involving a foreign minister, undermines both international law and regional diplomatic stability. It sets a dangerous precedent whereby:
Diplomatic actors may be judicially harassed across borders;
Family rights may be subordinated to opportunistic state narratives;
Funeral rites and burial decisions become tools of political rehabilitation rather than dignified closure.
In the broader regional context, this may provoke reciprocal violations of sovereignty, destabilize intergovernmental trust, and erode the doctrine of sovereign equality protected by Article 2(1) of the United Nations Charter.
7. Conclusion
The Republic of Zambia’s legal action before South African courts—particularly its decision to sue the Minister of International Relations and Cooperation—is not only diplomatically reckless but legally impermissible. It violates international conventions, South African constitutional values, established case law, and the moral principles underlying the law of dignity and burial.
Furthermore, its reliance on the Benefits of Former Presidents Act is misplaced and legally irrelevant in the current context. That Act neither confers extraterritorial burial rights to the state nor revives authority once forfeited through formal legal processes.
In sum, the matter should be resolved not in courts of law, but through respectful diplomacy guided by international norms, constitutional law, and above all, the wishes and dignity of the deceased and his family.
Prepared By:
Mulisa jones
