GRACE CHAILE
ATTORNEY General Mulilo Kabesha has argued that President Hakainde Hichilema as head of State holds the ultimate authority to determine the funeral and burial place of a deceased former President, citing constitutional provisions.
In his submissions before the South African High Court in Pretoria, Mr Kabesha stated that under Section 92(1) of the Constitution of Zambia, executive authority is vested in the President and therefore President Hichilema holds the authority to determine how a funeral and burial of a deceased President should be conducted.
Mr Kabesha SC has argued that the burial of a former head of State, when conducted as a state event, falls under the President’s discretion.
“In terms of Section 92(1) of the Constitution of Zambia, the executive authority vests in the President 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, it would follow that the President of Zambia, would have the final say as far as the burial place of a deceased former President is concerned
Mr Kabesha also submitted that the position taken by the court in the Kaweche Kaunda ruling aligns with Zambian customary law, which holds that the right and duty to bury a deceased person vests in the deceased’s siblings, while the tribal head has the final say regarding the burial place.
Mr Kabesha cited the 2021 High Court ruling in The People v The Secretary to the Cabinet: Ex parte Kaweche Kaunda (2021/HP/0768), which found that state funerals are public ceremonies that follow strict official protocols. He noted that even if a deceased President expressed a personal wish not to be accorded a state funeral, that wish may be overridden by the government.
The Attorney General made these arguments in a case in which the State has sued the family of the Mr Lungu, including his widow, Esther Lungu, his children, the South African government, and Two Mountains Mortuary opposing plans to bury him in South Africa and seeking to have his body repatriated to Zambia for a state funeral and burial.
“The family has no right to dictate how a state funeral should be conducted,” Mr Kabesha stated.
He also referenced the involvement of traditional leaders in discussions about the burial of Mr Lungu, noting that Chief Mumbi of the Nsenga tribe was present during a meeting on June 10, 2025, and supported the government’s position that Mr Lungu should be buried at Embassy Park in Lusaka.
Mr Kabesha cited the case of the late President Kenneth Kaunda, noting that his son, Kaweche Kaunda, accepted the court’s decision regarding his father’s burial and did not appeal against it.
“I respectfully submit that, on the application of Zambian law, the applicant (the State) has demonstrated the existence of a clear right,” he said.
