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Attorney-General, Mulilo Kabesha, has told the South African High Court , Gauteng Division in Pretoria that the wishes allegedly made by the family of the late President Edgar Lungu on how he should be buried were never stated in his will.
Among the wishes of the family was that President Hakainde Hichilema should not be near his body.
Kabesha argued that there was no legal or written instruction from the late President barring state involvement.
“The late President Lungu did not in his will specify how or where he should be buried,” Kabesha said.
He argues that any such claim remains unsubstantiated.
He submitted that Lungu, as a former Head of State, remained entitled to full state benefits including a state funeral despite having had his benefits suspended when he returned to active politics.
“His entitlement to benefits was only suspended, not terminated,” Kabesha explained. “Upon his passing, that impediment fell away, and he became entitled once again to the full provisions of the Benefits Act, which includes a state funeral at government expense.”
He said that the Zambian government had already engaged with the Lungu family, who had initially agreed to a state funeral and burial at Embassy Park in Lusaka, where all former Presidents have been laid to rest.
“The family agreed that the late President be buried in Zambia, at Embassy Park,” Kabesha stated. “The Applicant acted on that agreement, and the family cannot now be permitted, at a whim so to speak, to renege on it.”
Kabesha warned that a private burial in Johannesburg, as now proposed by the family, would deny the Zambian people the right to honour a former President in accordance with tradition.
“A private burial will be an insult to the dignity of the entire nation and to the late President,” he said. “Opposition figures have already accused government of ill-treatment of the former President, and failing to accord him a state funeral will only heighten such claims and risk civil unrest.”
He cited legal precedent and national custom, including a 2021 High Court ruling in the Kaweche Kaunda v Secretary to the Cabinet case, which held that personal funeral wishes may be overridden by public interest in the case of national figures.
Kabesha further submitted that under Zambian customary law, the authority to determine burial arrangements lies with the deceased’s tribe. “Chief Mumbi, head of the Nsenga people of Petauke, supported the decision for a state funeral and burial at Embassy Park,” he said.
He added that state funerals had consistently followed established protocol, citing the cases of Presidents Kenneth Kaunda, Levy Mwanawasa, Frederick Chiluba, Michael Sata, and Rupiah Banda — all of whom were buried at Embassy Park.
“The state funeral accorded to Dr Lungu will follow the same dignified and ceremonial pattern as those given to his predecessors,” Kabesha said.
He informed the court that necessary permits and clearances for the repatriation of the body had already been obtained and that affidavits from Foreign Affairs Minister, Mulambo Haimbe, and Cabinet Secretary, Patrick Kangwa, would be filed to support the application.
“The Applicant has demonstrated a clear legal right to repatriate the body and conduct a state funeral,” he said, adding, “There is no other remedy available to ensure that the burial proceeds lawfully and in the national interest.”
Government had sued widow Esther Lungu, the children Tasila Lungu, Daliso Lungu and Chiyeso Lungu and others contesting the decision by the family to bury the former president in South Africa.
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