August 05, 2025
On August 4, 2025, the nation watched live proceedings in a South African court as the unfolding legal battle over where President Lungu should be buried was played out.The circumstances leading to the legal battle are commonplace and do not need to be repeated. What remains to be seen is if the body of the late President will be repatriated to Zambia for burial and not South Africa, as was planned by the family.
How will it all pan out? Here are my thoughts. First, who owns a dead body?
Comparative jurisprudence suggests that there is no property in a dead person. So, technically, no one has ownership of the body of President Lungu. In James Apeli & Enoka Olasi vs. Priscilla Buluku Civil Appeal No. 12 of 1979 [1985] KLR 777, for example, the Kenyan Court of Appeal held that:
“There can be no property in a dead body. A person cannot dispose of his body by will. After death, the custody and possession of the body belong to the executors until it is buried… Suppose the deceased had left directions as to the disposal of his body, though these are not legally binding on his personal representative. In that case, effect should be given to his wishes as far as that is possible.”
So, neither the family of President Lungu nor the Zambian government can claim ‘ownership’ of the body.
How then should the decision of the burial be arrived at?
Where the deceased left a Will or some other recognisable instructions about the disposal of their body, courts usually give effect to such a wish, unless there are reasons such as impracticality of wishes, the wishes conflicting with some law or some public policy. Even if instructions by the deceased may not amount to a Will, courts have often accepted them as dispositive of the matter. The South African case of Sekeleni v Sekeleni and Another, 1986 (2) SA 176 (TK SC) dealt with the situation where the deceased had written a note to a woman he was cohabiting with after his divorce, nominating her to determine the programme for his funeral. The deceased’s children from the previous marriage, however, contested her role. The Court gave effect to the deceased’s wishes, regardless of whether the appointment was contained in a Will, other document or even verbally. Similarly, in the Kenyan case of Virginia Edith Wamboi Otieno v Joash Ochieng Ougo and Omolo Siranga Civil Case No 4873 of 1986, dealing with where to bury a prominent Kenyan lawyer, gave effect to the deceased’s known wishes. His wife wished to bury him in Nairobi, while the relatives of the deceased wished him to be buried in his home village. Apart from considering customary law, the court determined the case on the fact that the deceased had left oral instructions that he wished to be buried in his home village. The Court noted:
“I am, however, satisfied on a balance of probabilities that the deceased did express a wish to Albert Ong’ang’o that he desired to be buried next to his father’s grave at Nyamila Village, Nyalgunga Sub location, Siaya District.”
In the present case, it seems both parties agree that President Lungu had left oral instructions that his body should be transported to Zambia for burial and even instructed how the body should be transported. Disagreements seem to revolve around issues other than this. There is no way of knowing in advance what decision the Court will make. However, if the South African Court accepts that President Lungu left such instructions for the repatriation of his body, there is a strong possibility that the Court may decide in favour of the repatriation of his body to Zambia, as that was the deceased’s wish.
