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Dalitso Remmy Phiri
INTRODUCTION
A lacuna has been discovered in Zambia’s
national laws and this has attracted with national consequences. The prolonged
burial of the late former president Edgar Lungu has exposed a critical
legislative gap in Zambia’s legal framework. Despite the political and personal
interests which have captured international attention the main issue is that
there an absence of a statutory provision that state funerals and presidential
burials. The Lungu case demonstrates how legal uncertainity can escalate into
disputes when domestic laws are inadequate. This article seeks to examine the
lacuna in Zambia’s legal framework, analyze various approaches using our laws
and traditions in Zambia, propose other legal reforms fit for Zambia’s legal
system.
HISTORY OF EMBASSY PARK
The tradition of burying presidents at the
park began when the late former president Levy Mwanawasa died in 2008. However,
this was not wholly accepted by the family as they wanted to bury him at a
named farm. But since he was the first of the presidents to die the government
saw it fit to overlook the family’s interest but rather consider public
interests. The subsquent presidents including Rupiah Banda, Michael Sata and Dr
Kenneth Kaunda of which an issue also arose when he died which will be further discussed.
From the Mwanawasa death it has been adopted as what some may call custom which
has not been generally accepted but practiced.
THE ZAMBIAN CONTEXT: TRADITION WITHOUT
LEGAL FRAMEWORK
It
is important to acknowledge the fact that there is no specific Zambian law
governing presidential burials. The speculation of there being a ‘Presidential
Burial Site Act’ by the public and social media is false and no legal framework
exists. The designated presidential burial site at Embassy park seemed to have
been an executive decision rather than an act of parliament, leaving it without
solid legal foundation.
However, this has not stopped courts in
Zambia from enforcing a law that does not exist and this law specifically is
that of presidential burials. As can be seen in the case of People v Secretary to the Cabinet Ex Parte
Kaweche Kaunda,[1]
and the
brief facts are that the appellant was seeking judicial review against the
decision of the cabinet to bury the remains of Dr Kaunda at Embassy park but
the family and himself while he was alive brought it to the attention of the
government that it was his wish to be buried next to his farm at a named farm.
The court upheld the decision of the cabinet and the wishes of the family null
and void. Stating no clear law but rather was upheld for public interest. But
if there was absence of a clear and no clear will but a wish, why can’t a law
be made to accommodate both interests?
As Zambia
we have recognized customary law as a source of law under Article 7(b),[2]
and this will apply if it not repungnate to natural justice, Artice 8
highlights National values and principle and Article
9(1)(c) highlights application of National values in the development and
implementation of State policy.
But then if we have seen that our written law has a
lacuna and we have traditions that gather certain processions such as funerals,
why can’t we refer to customary law then? In Zambia it can be noted that when
customary law fails then written law will suffice but we do not have a
mechanism that should revert us to our customs and traditions when written law
fails and reenforces Article 9(1)(c) .
BENEFITS OR
NOT
It is being
argued in the case of Lungu that the former president was not entitled to his
benefits by the family when he returned to active politics but the state argues
that these benefits were reinstated when he died. I just want to clarify that
they is no law or even a section in the Benefits of former presidents Act that
stipulates the burial procedure of a late president.
PROPOSED LAW REFORMS
The government and the family through a third party these
being church leaders and traditional leaders and any other neutral party in the
absence and formulation of any law dealt with by customary law should set fair
and clear laws and dispute resolutions. These laws should give the family the
right to proceeds as they please but allow the state to accord its duties in
respect to public interests. The family may choose place of burial and how
proceedings should be but not denying the public and the state to pay their
last respects.
Because as much as this person was the head of state, he/she was a spouse, father/mother before taking office and as much as he/she will be presumed to have been father/mother of the national our tradition allows us to also mourn with dignity and respect. In situations where political and family interests arise it is important to acknowledge that the dignity of all parties involved are respected especially the corpse because if it is so stated that this highly respected figure is being treated with conflicts instead of peace after death then there is no respect at all.
CONCLUSION: TRANSFORMING CRISIS INTO OPPORTUNITY FOR
LEGAL REFORM
It is quite unfortunate that we as a country through the
death of the late Lungu had to realize such a lacuna at an international stage
with us having failure and disputes in what was supposed to be paying our last
respect to back-and-forth court sessions. The law cannot cover everything, but
this is an opportunity to act and fill our legislative gaps not only in such
incidents.
As Zambia we should come up with laws that are not
dependant on what our colonizers left but laws that reflect and show our
principles and values. With the Constitution being the supreme law of land let
us interprete it in as prescribed under Article 267 (1) (a),(b) and (c)
to give effect to the development of the law.
Dalitso Remmy Phiri is a second-year law student at the University of Zambia. He writes this in his personal capacity.