Legal Standing of the Family in Burial Decisions of Former President Edgar Chagwa Lungu- Hon. Sunday Chilufya Chanda
LEGAL OPINION BRIEF
Legal Standing of the Family in Burial Decisions of Former President Edgar Chagwa Lungu
1. Background and Context
Following the death of former President Edgar Chagwa Lungu on 5th June 2025 in South Africa, a dispute has arisen between the Zambian State and the Lungu family regarding the location and nature of his burial. The family opted to bury him in South Africa following a fallout with the Government after an initial agreement was reached.
Subsequently, the Zambian Government approached the Pretoria High Court seeking the repatriation of the body. The State argues that Mr. Lungu did not expressly indicate his burial preference and, as a beneficiary under the Former Presidents’ Benefits Act, he ought to be accorded a state funeral in accordance with Zambian customs and traditions.
2. Legal Issue
Can the State lawfully override the burial wishes or custodial role of the family in the absence of a clear directive in the will of a former President?
What legal and cultural framework governs the reconciliation of public interest with private/family rights in such matters?
3. Legal Framework
A. Zambian Law
(i) Constitution of Zambia (Amendment) Act No. 2 of 2016
(ii) Article 11 and Article 23 protect human dignity and the right to family life.
(iii) Article 8 promotes respect for human rights and the rule of law.
(iv) Former Presidents’ Benefits Act, Cap. 15, Section 5(2):
– Suspends benefits upon return to active politics but does not extinguish them.
– Death ends political re-engagement, arguably restoring entitlement to a State funeral.
However, the Act is silent on burial procedures, thus not overriding family rights explicitly.
B. Customary and Common Law Principles
Under Zambian customary law, the family, especially the surviving spouse and children, holds the primary authority over funeral and burial rites, unless explicitly stated otherwise in a will.
The absence of a burial directive does not automatically vest full authority in the State. Custom requires consultation and consent from the family and extended kin.
4. Comparative and Case Law Analysis
A. Zambia: The Kaunda Precedent (2021)
In the case of President Kenneth Kaunda, the family wished to bury him next to his wife on private property. The State insisted on a national burial at Embassy Park. The High Court upheld the government’s position, citing his role as a founding President as overriding. However:
(i) The judgment recognized that such a decision must be lawful, proportionate, and consultative.
(ii) Family involvement in funeral rites was not excluded.
B. Kenya: Wambui Otieno v. Ochieng & Clan (1987)
The Kenyan High Court gave customary law primacy in burial decisions, emphasizing that the absence of a will meant the widow could not unilaterally determine burial without the extended family’s input.
It upheld clan-based decision-making, showing strong deference to family in burial disputes.
C. European Court of Human Rights (Article 8 – Right to Family Life)
The Court has held that interference with burial decisions must be:
– Justified by a pressing public interest; Proportionate; and Respectful of dignity and family rights. (See: NS v. UK, ECHR, 2024)
5. Risks of Overriding Family Wishes
(i) Cultural Insensitivity: Overriding family preferences may be seen as a cultural affront in Zambia where burial is a sacred familial rite.
(ii) Legal Backlash: Sets a dangerous precedent in personal liberty and family autonomy.
(iii) Political Fallout: May lead to further polarization and weaken posthumous reconciliation with the legacy of President Lungu.
(International Reputation: The State risks being viewed as coercive, particularly in matters involving human dignity and family rights.
6. Recommended Strategic Approach
A. Mediation First
Engage the Council of Churches, House of Chiefs, or respected neutral statesmen to mediate a compromise.
B. Joint Communiqué
Facilitate a joint statement between the State and the Lungu family agreeing on:
– Burial site ( with a family-sanctioned memorial area);
– Funeral rites (religious vs. state ceremonial balance);
– Public and private mourning protocols.
C. Legislative Clarification (Long-term)
Zambia must consider amending the Former Presidents’ Benefits Act to include clear burial protocols with safeguards for family participation.
7. Conclusion
While the State has a role in honouring a former Head of State, that role must not be exercised in a vacuum. In the absence of a burial directive in the will, the Lungu family remains the primary moral, cultural, and legal stakeholder in deciding where and how he is buried.
Courts in Zambia, Kenya, and beyond affirm that family autonomy, custom, and dignity are essential elements in burial decisions. The path forward lies not in legal confrontation, but in dialogue and reconciliation, reflecting the unity that President Lungu once called for in his own political life.
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Prepared By:
Hon. Sunday Chilufya Chanda, MP
Vice Chairperson – Committee on Legal Affairs, Governance and Human Rights
National Assembly of Zambia
Member of Parliament – Kanchibiya Constituency – Legal Researcher (Candidate, LL.M)
Date: 4th July 2025
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Note:
This is a legal opinion brief written in my individual capacity in exercise of my intellectual freedom aimed at contributing to the raging debate in the nation. It is therefore not a political statement.
