ATTORNEY General Mulilo Kabesha has challenged the Lungu family and their lawyer, Makebi Zulu, to produce a will and prove that the former president had issued instructions of how and where he should be buried as his last wish.
In his submission before the South African Court Kabesha said, failure to prove the dying wish of the late Lungu, President Hakainde Hichilema has the final say on how and where Lungu’s final resting place will be.
Kabesha said Lungu’s tribesmen are aligned with the State’s position to have him buried in his country of origin at the presidential burial site.
In this case the Zambian government has sued Lungu’s widow Esther, his sister Bertha, together with his children Tasila, Chiyeso and Dalitso, and his cousin Charles Phiri, demanding that Lungu be buried in Zambia and accorded all protocols for a former head of state.
Other defendants to the suit are lawyer Nakebi Zulu, Two Mountains Burial Services, the Miniter of International Relations and Cooperations.
Kabesha has filed a supplementary founding affidavit seeking a final prohibitory relief against the Lungus, Zulu and Two Mountains Burial Services from inhuming the former president.
He argues that the Benefits of Former Presidents Act, 1993 Chapter 15 provides for pension and other retirement benefits of former presidents of the Republic of Zambia.
Kabesha said in Section 4(1)(b) the Act provides the payment of a former President’s funeral expenses.
He stated that when Lungu was voted out of power, he became entitled to the benefits stipulated in the Benefits Act and he received the benefits payable stipulated in the Act.
“Section 5 of the Act sets out the circumstances when benefits in terms of the Act would not be paid to a former president; (1) The pension and other benefits conferred by this Act shall not be paid, assigned or provided to a former president who is in receipt of a salary from the Government; or (b) engaged in active politics,”Kabesha submitted.
“(2) A former president shall be disqualified from the pension and other benefits conferred by this Act if the former President ceases to hold office on the ground of wilful violation of the Constitution or of misconduct; or (b) if the former president is convicted of an offence and sentenced to imprisonment for a term exceeding six months, and the National Assembly, on a motion supported by not less than two-
thirds of the members of the Assembly, resolves that the former president shall not receive the whole or such part of the pension and other benefits as it may determine.”
Kabesha said Lungu had indicated his intention to return to active politics and to hold an elective or appointed office.
“According Section 5(1)(b) of the Benefits Act, because he became engaged in active politics, the late former president Lungu was no longer entitled to the payment of benefits in terms of the Act,” the Attorney General stated.
He said as a result, on October 30, 2023, the Acting Secretary to the Cabinet confirmed that the payment of benefits to the late former president Lungu would cease with immediate effect.
Kabesha said the Benefits Act distinguishes between the suspension and the termination of benefits to a former president.
In terms of Section 5(1) the benefits would be suspended under circumstances set out in Section 5(1)(a) and (b) and in terms of the Act, the payment of the benefits would resume when the impediment in these subsections falls away.
The Attorney General said the High Court, also accords with Zambian customary law which
determines that the right (and duty) to bury a deceased vest in the deceased’s siblings; or the Tribal head will have the final say as far as the burial place of the deceased is concerned.
“The late President Lungu is a member of the Nsenga tribe of Petauke District in
Eastern Province. The Head of the Tribe is Chief Mumbi and he was present during the meeting on June 10, 2025 at City Lodge, Waterfalls and the Southern Sun between the family and Government,”he said.
“Chief Mumbi supported the Government representatives’ views that the late President Lungu should be accorded a state funeral with a burial thereafter at Embassy Park.”
Kabesha said Section 92(1) of the Constitution of Zambia, clothes the President the executive authority, and because the burial of a former president has consistently been treated as a public state event which is integral to Zambian national identity and constitutional heritage, therefore President Hakainde Hichilema will have the final say as far as the burial place of a deceased former president is concerned.
He cited Kaweche Kaunda’s case in which Kaweche accepted the decision of the Court to have the founding father of the nation, Dr Kenneth Kaunda to be burried at embassy park the designated Presidential burial site and not his farm, to be correct and did not appeal against it.
Kabesha stated that the late Lungu did not specify in his will how or where he should be buried, and the family must come to terms that as beneficiary in line with the Benefits Act, he wished for his burial to be a state funeral in accordance with Zambian customs and traditions by conforming to the Benefits Act.
“To the extent that the Honourable Court may find that, in the absence of a direction by the late President Lungu, the Benefit Act serves to determine the intention of the late President Lungu as far as his burial is concerned, I respectfully point out that the family (who I verily believe comprises his testate heirs) has agreed that the late
President be buried in Zambia, Embassy Park,” Kabesha submitted.
“The Applicant acted on that agreement, and the Family cannot now be permitted, at a whim, so to speak, to renege on that agreement. The State will implement the terms of the Agreement to the extent that it will be lawful to do so, and the Applicant expects no less from the Family.”
Kabesha further argued that Government
has the right to repatriate the remains of the late former president Lungu and bury him at Embassy Park following the state funeral as agreed with the Family.
He said Government has an experienced and a tested practice of burying former Heads of State such as His Excellency President Patrick Levy Mwanawasa, Titus Jacob Chiluba, Michael Chilufa Sata, David Kenneth Kaunda and Rupiah Bwezani Banda.
He said a private burial in Johannesburg will deprive the Zambian nation of its rights, as it will be an insult to the dignity of the entire nation and to the late president.
He added that opposition political party leaders have accused the UPND government of having maltreated Lungu, alleging that it sought to take revenge on him.
Kabesha said failure by Government to ensure that Lungu is accorded a state funeral, will further stir controversy and may even lead to civil unrest in Zambia.
“Without court intervention, there are no other processes which the Applicant is able to make use of which will ensure that Mr Lungu’s body is repatriated back to Zambia,” said Kabesha.
“The necessary permits and consents required to repatriate the body of the late former president Lungu to Zambia has already been obtained.”
The matter will be heard on August 4, by the South African Court.
By Sharon Zulu
Kalemba July 4, 2025.
