IN a desperate attempt to have access to the remains of President Edgar Lungu, the Attorney General on behalf of President Hakainde Hichilema filed an injunction on June 24 in the South African High Court to stop his burial scheduled to have taken place the following day.
“Akanwa ka milandu kalaibala.” This unusual court case has raised eyebrows from amongst ordinary Zambians, a good number of who had travelled to South Africa for the burial – lawyers, politicians and diplomats.
For ordinary Zambians, it is a confirmation of an action driven by Satanism ritual motives; has fortified beliefs that both Edith Nawakwi and Lungu were denied medical treatment abroad so that they could die in Zambia for Satanism rituals on their remains to be performed easily.
For lawyers, they are wondering which law our learned Attorney General studied. Opposition politicians are ululating in their hearts at the political gains accruing to them by the bizarre events surrounding the death, funeral and burial of President Lungu.
As for diplomats, they are wondering whether or not we have a government or what exists is just the state.
According to the South African law, for an injunction of that nature to succeed, three conditions must be met;
Absence of alternative remedy: the Zambian government needs to provide evidence that there is no alternative remedy available other than an injunction for her to have the burial of President Lungu take place in Zambia.
Did the Zambian government exhaust all the available means? On June 15 after the mediation of Archbishop Alick Banda and President Emmerson Mnangagwa of Zimbabwe, an agreement was reached between the Lungu family and the government, an agreement which President Hichilema breached by drawing up a new set of terms contrary to what was agreed.
As this is a civil matter, the legal maxim, “Qui venit ad judicem venire debet cum mundis manibus. (He who comes for equity must have clean hands) comes into play. This maxim focuses on good faith and fairness on the party that is seeking equitable relief.
The party that is seeking an equitable relief, the Zambian government, has dirty hands, the government breached a settled agreement but has now rushed to court so that the court can legalise the breached terms!
No court anywhere in the world can do that; doing so will amount to giving effect to illegal actions. So this ground falls off, it won’t work in favour of President Hichilema.
Clear right: The Zambian government would need to establish based on international law, diplomatic agreement or specific circumstances that she has a clear right to intervene in the private burial arrangement that the Lungu family has settled for to bury their loved one.
There is no international law, diplomatic agreement with South Africa or specific circumstances that give the Zambian government clear right to intervene in the private burial arrangement.
What comes closer is under specific circumstances where the government on June 15 reached an agreement with the Lungu family which the government breached.
This too falls off.
Urgent interest: The Zambian government needs to adduce evidence in court that if the private burial proceeds as planned, it would cause irreparable harm or prejudice to her interests.
What are the government’s interests in the remains of President Lungu? Where were the government interests when President Lungu’s benefits were withdrawn? Where were the government’s interests when President Lungu was stopped from accessing medical treatment; was pulled out of a plane en-route to South Korea?
Of what interest was for government when she breached a settled agreement with the Lungu family? This condition too is not in favour of President Hichilema because he has an interest while the Lungu family has a right in the private burial.
However, before the Pretoria High Court could hear the substantive matter, the lawyers for the Lungu family and for the Zambian government agreed in chambers to postpone the burial until the matter is determined by the court on August 4.
In the Daily Nation article of July 4, I stated that, “… South African case and statute law supports the rights of the deceased’s family to determine the burial place.”
Here is an analysis of the South African case and statute law. As recently as Saturday July 5, the South African Broadcasting Corporation (SABC) Television aired a news item to the effect that the South African government has agreed with the country’s late former Deputy President David Mabuza‘s family to respect his wish of being buried at his farm in the Barberton area.
This is because the South African Constitution principles relating to nondiscrimination and equality prevail in disputes over burial rights.
The South African Intestate Act is instructive on burial rights of the deceased and their families. In the Gauteng High Court, the same High Court which is hearing President Hichilema’s injunction, it was held in the case of Simakuhle v Simakuhle and Another that the deceased’s wife had the final say of where her husband should be buried.
The court upheld the widow’s right to determine the burial place for her husband over traditional customs. In the case of Mavele v Mabunda, the Eastern Cape Division of the High Court ruled that the family with the right to bury according to customary law should do so.
In the 1906 case of Carelse v Estate De Vries the South African High Court in interpreting the Intestate Act (dealing with those dying without a Will) highlighted the importance of respecting the wishes of the deceased and those close to them in determining where and how they should be buried.
The South African High Court established in the case of Gumede v Subjee and Another, the rights of the bereaved and dignity of the deceased.
In summary, South African courts have recognised the rights of spouses and family members in determining burial arrangements for their loved ones; recognise customary law in determining burial practices so as to uphold the South African Constitution principles of equality and nondiscrimination.
In the June 27 Daily Nation edition, I had alluded to the personality failure of President Hichilema, this failure has manifested itself in the imposing habit of the President. He imposed himself at the Kuomboka ceremony despite being told point blank that he was not welcome, he repeated this during the funeral of FDD president Edith Nawakwi.
Despite the June 15 Lungu family-Government accord clearly stating that the President was not welcome at the funeral, President Hichilema altered the agreed terms and imposed himself on the funeral, to be the first one to view the remains of President Lungu!
Even in this South African court action, President Hichilema is imposing himself and Zambian laws on a sovereign state! The court case has caused a diplomatic melt down of humiliating proportions.
It has even violated Article 29 of the 1961 Vienna Convention on Diplomatic Relations because it has added the South African Foreign Minister together with the Lungu family as a Respondent!
The Former Presidents Benefits Act (FPBA), the judicial review judgement on President Kaunda’s burial and the public interest grounds all have no jurisdiction in the South African legal system.
What will determine the outcome of President Hichilema’s court case are the South African laws as enumerated here.
In all his arguments, the learned Attorney General has not cited any of the South African laws to support his cause. He is relying only on the Zambian laws!
As espoused in the July 4 edition of the Daily Nation, apart from not being applicable in South Africa, all the three grounds are extremely weak; the state funeral claim falling under the FPBA was withdrawn together with other benefits when President Hichilema stripped President Lungu of his benefits.
The judicial review judgement on President Kaunda was procedural because the substantive matter, i.e. Kaunda’s burial could not be dealt with because Kaunda was already buried when the judgment was passed, it was a Lex fori or moot judgement hence not binding; Lungu is not buried yet.
The public interest ground lacks merit; there are numerous public interest violations where the Attorney General is either defending the perpetrators or has remained mute.
The court action in South Africa is an extraordinary display of incompetence/insensitivity. We are not amused by this because the Attorney General is partial, he is a politician, the last position that he held before his current appointment was chair of the Lands committee of the UPND national management committee.
In the unlikely event that the Gauteng High Court rules in favour of the Zambian government, it is not automatic that the judgement will be enforceable in Zambia.
The Foreign Judgements and Reciprocal Act (FJRA) will be triggered. Such a judgement will have to be registered in the Zambian High Court and evidence adduced that Zambia and South Africa have reciprocal agreements such that judgements obtained in South Africa are enforceable in Zambia and vice -versa. Such an agreement doesn’t exist.
Then High Court Judge Evans Hamaundu threw out an application by then Attorney General George Kunda to enforce a judgement Mwanawasa had procured in London to convict Chiluba of theft because it lacked a reciprocal agreement.
It is no wonder that President Hichilema is now fighting frantically for an out-of-court settlement with the Lungu family!
This late realisation that the court action was ill conceived from the very beginning is an admission of incompetence.
You cannot drag a grieving family to court, half way the trial you now want to negotiate, what is there to negotiate, after President Hichilema breached the earlier agreement and thereafter filed an eleventh hour injunction delaying the burial?
The deceit/inhumanity of President Hichilema is now in global domain; no one will ever respect him. This was confirmed by the nonattendance of foreign dignitaries at this year’s Trade Fair; the first of its kind in 59 years of its history.
Why did the President fail to attend functions to which he is entitled but busy fighting to view the remains of President Lungu?
There was absolutely no need to disrupt the burial of President Lungu, instead, President Hichilema should have just continued celebrating his imaginary “Kwenyus.”
The insistence by President Hichilema to have access to the remains of President Lungu and that whilst in South Africa, President Lungu was looked after by President Cyril Ramaphosa and Jacob Zuma are enough justifications for him to be buried in South Africa.
May God Almighty Father strengthen the grieving Lungu family against this state brutality.
