Legal Clash Over Former President Lungu’s Burial and Benefits: Constitution, Family Rights and State Authority at Loggerheads 

-Zambia’s Constitutional framework underscores that posthumous presidential benefits do not automatically apply and that burial and funeral decisions remain largely within the domain of the deceased’s family, not the State.

By Burnett Munthali

The death of former Zambian President Edgar Chagwa Lungu in June 2025 has triggered a complex legal and constitutional debate as his family and the State dispute entitlement to benefits, the nature of his funeral, and where he should be laid to rest.

Before his passing, Lungu had lost certain presidential retirement privileges following his return to active politics, thereby invoking statutory provisions that suspend benefits for former heads of state engaged in political competition.

The core legal issue is whether the entitlements provided under the Benefits of Former Presidents Act (Zambia) may be reinstated for a deceased former president’s estate — and whether a family or the State holds the ultimate decision‑making authority over funeral arrangements.

Under the Act, a former president is eligible for certain benefits upon leaving office. However, these are premised on the individual being alive, and defined exceptions apply. Section 6 of the Act allows for limited survivor benefits to a spouse and children under 21 following the former president’s death, but these are explicitly capped and do not extend to full reinstatement of the full suite of benefits previously enjoyed.

Moreover, Section 5 of the Act sets circumstances under which benefits cease entirely — including engaging in active politics, receipt of a salary from the State, misconduct, or disqualification. When Lungu returned to politics and had his retirement benefits withdrawn, he triggered these disqualification mechanisms.

The Zambian Constitution (Act No. 2 of 2016) provides the foundational legal framework. Article 1 confirms that the Constitution is the supreme law of the Republic and binds all persons and State organs. Article 42 emphasises that “every person has rights and privileges as provided for by the law” — meaning that entitlements must be grounded in legislation.

Crucially, the dispute over Lungu’s funeral highlights the tension between the State’s claim to national interest and the family’s rights to determine how and where a former president is buried. Traditionally, Zambia’s former presidents have been buried at the Embassy Park Presidential Burial Site in Lusaka, suggesting a precedent for state‑protocol funerals.

However, legal commentators note that Zambia lacks a dedicated “State Funerals Act” for former presidents. While the Transitional Period and Inauguration of President Act defines “State Funeral” for a deceased president in office, it does not comprehensively regulate a former president’s burial rights or family vs state decision‑making for those no longer in office.

In the 2025 case Government of the Republic of Zambia v. Lungu Family & Others, the Zambian government filed an urgent application in South Africa’s Gauteng Division of the High Court seeking to halt Lungu’s burial abroad and declare that by law a former head of state qualifies for a full state funeral in Zambia. The Government cited Article 177(5)(c) of the Constitution (relating to the Attorney General’s authority) as a basis.

The court temporarily halted the burial and set a hearing for 4 August 2025. The dispute underscored that while the family argued for respect of personal wishes — including location abroad and exclusion of the current President — the State invoked “public interest” and the symbolism of national leadership continuity.

From a purely legal‑argument standpoint, the position that “a dead body cannot be reinstated to full presidential benefits” rests on several pillars: the Act ties full benefits to living status; statutory partial survivor benefits are clearly defined; and fiscal responsibility demands that unlimited posthumous benefits could burden the public purse and create endless claimants.

Likewise, the family’s argument that they have the final say over funeral and burial finds constitutional support in respect for private rights, personal dignity, and family autonomy — so long as the deceased’s wishes and the family’s decision align with law and custom. The absence of a specific statute granting the State unilateral control over all aspects of a former president’s funeral gives the family a legitimate legal foundation.

In balancing rights and obligations, the Constitution’s provisions for the supremacy of law (Article 1), the duty to defend the Constitution (Article 2), and the multi‑party democratic state (Article 4) all emphasise that neither State nor family can act outside the law. Any attempt by the government to override a family’s decision without legislative mandate risks breaching constitutional norms.

In summary, while the Zambian State may lawfully refuse full reinstatement of benefits to a deceased former president’s estate — given the explicit terms of the Benefits of Former Presidents Act — the question of funeral arrangements remains nuanced. The family retains rights, not only morally but legally, to determine burial arrangements unless statute clearly delegates that power to the State.

As this case unfolds, it will likely set precedent for future disputes involving former heads of state. It raises fundamental questions about the interface between public symbolism and private rights, legislative clarity on state funerals, and the fiscal and constitutional limits of presidential entitlements.

Ultimately, the law suggests that a deceased former president may not automatically regain full benefits, but the actual arrangements for burial and memorialisation are best resolved through negotiated understanding between the family and State within the framework of constitution and statute — not by unilateral assertion of power by either side.