By Chanda Chisala.
The first time I read somewhere that the Attorney General of Zambia had submitted the “suspended benefits” argument to the High Court in Pretoria, I thought it was just fake news. There’s no way the Attorney General of Zambia with his entire team of lawyers can make such a simple blunder in logic. Or so I thought.
To my utter shock, I could not believe my ears when I watched a brief segment of the televised court case and heard the South African lawyer present this argument on behalf of the Zambian government. Even more surprising, neither the family’s lawyer nor the judges pointed out the simple blunder they made, which should have ended the Attorney General’s case immediately.
So what is this “suspended benefits” blunder?
Let’s examine it briefly. The Zambian law says that if a former president of Zambia goes back into active politics, he loses all his former-president benefits. Which means, as long as you are in active politics, the state won’t assist your family with burial costs if you die. In order to give some legal standing for the government’s imposing involvement in the Edgar Lungu burial case, the AG argued that when a president dies, those benefits are restored even if he lost them while alive, which gives the state the legal duty of executing it. Which means these benefits were just suspended when he got into politics, according to the AG. This includes his benefit of a burial sponsored by the state, which he lost due to active politics, but now is restored.
However, it makes zero logical sense that your burial benefit can be restored once you die. How can it be restored by your death when it was precisely a statement about what should happen if that death happens while you are in active politics? It essentially says if you die while in active politics, you are going to lose something: you won’t get any burial assistance from the state. That can’t be unsuspended by the same act of dying!
This obvious blunder should be clear to anyone who thinks about it now. But let’s give a hypothetical example, just in case someone still can’t see the blatant contradiction.
Suppose there was a law of benefits that says that a president’s face will be put on future currency after he dies. But if you get back to active politics, the law warns, you will lose this “honour.” Well, if the person dies while in active politics, it’s logically impossible that that same death can be what restores that benefit. It’s a clear self-contradiction because it means that both the presidents who got into active politics and those who did not end up getting the same posthumous benefit!
By arguing that the benefits are restored by one’s death, the AG was saying they were not even suspended in the first place, since they were still going to happen anyway, no matter what. In short, you might as well just say that a president never loses posthumous benefits even if he goes into active politics since there is no scenario in which they are truly lost. But that would contradict the same law because it explicitly says you lose all your listed state benefits, including posthumous ones.
What this means is that the AG or the state actually had no legal authority whatsoever for making any demands on the family of former president Lungu.
The funny thing about all this is that the family of Edgar Lungu will end up gaining all the other benefits illegally, just because of the logical blunder made by the AG. Since he is saying all the benefits are restored, the government is now obliged to give them the cars, house, and so on. My expectation, however, is that the UPND government will later still have someone challenge this illogical interpretation of the law made by their own AG so that they can rescind the benefits from the Lungu family.
The author, Chanda Chisala, is the Founder of Zambia Online and Khama Institute. He is formerly a John S. Knight Fellow at Stanford University and Visiting Scholar to the Hoover Institution, a policy think tank at Stanford. He was also a Reagan Fellow at the National Endowment for Democracy (NED) in Washington, DC. You can follow him on Facebook at https://www.facebook.com/chandachisala
Our law schools need to teach more critical thinking instead of just focusing on making law students memorise laws.
In any funeral, the final authority rests with the family. From the beginning the family had always wanted to bury in Zambia. They were just disturbed by the government when the government finally and realised that ECL was once President of Zambia, which they did not even acknowledge when he was in power
POLITICAL EXPENDIENCE – the little man is not only dull, he is so desperate.
The crop will do anything to remain in power.
They will challenge their own submissions in court after elections. If that fails, they will pay, it’s not their money – it’s the tax payers hard earn resources they are abusing, will continue to abuse once re engaged.
He reentered politics by writing to the StC who replied by itemising what the former president actually lost in reality. Was it his dying wish that he was quitting politics and consequently be given back that retirement package? ECL never wrote back to the head of the civil servant asserting to leave politics to claim back benefits. Are his family members REALLY, constitutionally, qualified to those benefits? We are rewriting the history when other facts don’t allow us to. Somehow, we’re breaking the constitution by seemingly protecting it.
Associate Professor/Dr Author of the said analysis! Your interpretation of the AG’s submission is fault and lacks both clearness and sundry! Since your response is not succinct, it is comprehensible as to why you crafted your thesis as such. My succinct response is that when something is suspended, it connotes that it is not cancelled. This clear and sundry argument leads me to a pertinent point which supports the Zambian AG’s submission and, also turns your premature thesis upside down on its head. That being the case, both the South African Judge and senior counsels at a high court level are/were fully aware of the implications and the cautious use legal JARDGONS by the Zambian AG. Carefully read-in-between the lines. Stay focused, blessed, positive, attentive and take care.
IN LAW, MUTATIS MUTANDIS MEANS THE FOLLOWING:
‘ALL NECESSARY CHANGES HAVING BEEN MADE; TO INDICATE THAT SOME THINGS HAVE CHANGED AND NECESSARILY OTHER THINGS MUST CHANGE AS WELL.
MAY OUR LEGAL SCHOLARS PLEASE WORK OUT IF THIS APPLIES HERE?
IF NOT, WHY?
I AM ONLY AN ENG9NEER
You should be in utter shock that you think like this. You’re acting as if we were not watching. What blunder? The government lawyer was asked all the questions and he answered sufficiently. Imwe you rushed to Lusaka Times just to show your misunderstanding of simple logic to the world. Ikalenifye.
Ba praise singer nabo. It must be a full time job for you Gary Ndhlovu to run around everywhere to defend HH against everything everyone says.
I published a similar article when they started making the demand. I agree wholeheartedly Chisala. However, I thought the biggest blunder was initially suing the SA foreign minister.
I do believe that the lawyers for the family held the same view. They are relying on South African law and hence ignoring the argument presented by the AG. Remember we are in a situation where Zambian law has no jurisdictions in a foreign land.
Yes but there are parallels (similarities) in the two country’s laws as the Zambian lawyer pointed out!
This was a complete waste of space ba lsk times. In the future, such n0nsense should not be allowed on your platform. This individual lacks a fundamental understanding of jurisprudence.
Exactly
What jurisprudence ba Scooper naimwe. Present your counterargument we compare.
This person really then does not understand things. Let us take a case of misconduct in the employment code of the laws of Zambia. If a person is fired due to misconduct, he is still entitled to his dues. For example, accrued leave pay, days worked, NAPSA and in some cases, severance pay. So, in the case of former President, the package is suspended for as long as he was in ACTIVE politics. When not, his dues after are still paid to the family because that is an entitlement.
The alarming headline was more from common sense that from the law side. In any case, this matter is in the court of law. Why run running commentaries? One risk being charged for an offense
Joseph Mwansa, you have misunderstood the article while saying the author has misunderstood the law. and you don’t even know that we can comment on the case in court in south Africa.
Two very different issues are being mixed/missed here – it’ll be a cup of tea for the RSA judge. GRZ is talking about the burial of a former zambian head of state( precedence prevails ); the family are linking “legally stopped” and regulated retirement benefits to the person ECL! He will ALWAYS remain a former HOS, his retirement benefits do not change anything!
The real issue here is: Was it the intention of ECL to be repatriated? I think the answer here is clear and its yes. He wished to be except he didn’t want HH to preside. Somehow somewhere the family got mislead and thought burying in South Africa was the best option. However, you cannot shift posts especially after reaching an agreement. That agreement is what turned the circumstances in favor of the state.
Why do you sound like judgement has already been passed?
And if the State has been favoured, we expect another mourning period as he is laid at the presidential Mausoleum? Why would government inspect and identify the body in SA if there is hope to bury in Zambia where all such can be easily done? Everything beats logic.
Timbwi I agree with you when it comes to what ECL wished. And the issue of HH preside. The question who started this notion that HH would Preside? What would he Preside in? AG was very clear about the law when it comes to ECL entering active politics and what happens when he dies. This article and the writter are misleading and show that they dont understand the law at all.
The AG explained and it came out in testimony that ECL wanted to buried in Zambia. Esther wants him to buried there. Why? Cause of her perception? Perception is sometimes not true or factual.Habouring distain based on perception is in itself wrong. This is whatwe will learn when the judgement is passed.
Even me who knows nothing about text book law can see……….
That the family can not be expected to pay for a state funeral at embassy park……..
Either the constitution is wrong or no critical reasoning…….
Mrs lungu will continue to receive widow benefits even if her husband re entered politics
FWD2031
The writer should have first cited the referenced law and quoted the relevant clauses, then show the contradictions in the AGs submission to the law. This should have explicitly shown how the AG was offside. As it is he wants the public to believe his article merely for the fact that it’s written by him.
Strange. How did they sue a diplomat of a government they want help from to repatriate the body of ECL? How do you reinstall benefits at death when the law does not say so? How do you threaten to go to another court when there is an active court going on as if judicial outcome is already known? They don’t even know why and what they petitioned because from repatriation, they have started seeking other impertinent reliefs. A strange circus.
Benefits are only cut when you are in active politics.If Lungu was alive today and says he is not in active politics,immediately his benefits could have been reinstated. Same applies when you die as a former president who is in active politics, your benefits are immediately available for your family. Simple logic
The desperation by the so called listening and new dawn Government to have access to the body of ECL raises more questions than answers. The fact is the Family has powers to superintend over the body of ECL as it is not gazetted in the Zambian constitution on how former heads of states should be buried and where. Yes Lungu was a national asset but this is the same asset who was denied to go for treatment in South Africa and the family is bruised and do not want anything to do with crocodile help from the UPND Government. WHATS WRONG WITH UPND TO BACK DOWN AND ALLOW THE SUBSTANTIVE WISH OF THE FAMILY TO PREVAIL??
if HH was victimised when in opposition, the fact is he also victimized ECL. Lets be honest and factual. HH is not a leader who can forgive like what Mandela did. He had forgotten that vegeance is for GOD. Trust me the UPND Govt is planting its own KARMA. The family is mourning and this is not the time for mocking them. NIPANO TULI
Are you that dull to think that HH can’t forgive?That hatred against him will take you to an early grave.HH represents national unity, not personal opinion. Any funeral of a former Republican President, including Edgar Chagwa Lungu, is a State function, not a private family affair.Therefore, access and protocol at such an event are guided by State procedures, not by personal feelings or bitterness from any widow or relative neither you as dull cadre.To suggest that Esther Lungu , in her capacity as a widow , has the legal or moral right to chase away a sitting President from a State funeral is not only unconstitutional but undermines national decorum and the dignity of public office.
“The Zambian law says that if a former president of Zambia goes back into active politics, he loses all his former-president benefits. Which means, as long as you are in active politics, the state won’t assist your family with burial costs if you die”.
What kind of schools do you people go to…If Lung was alive today and says he is no longer in active politics, immediately his benefits are would have been reinstated. The fact that he is dead, it means he is no longer in active politics by death, and his benefits were reinstated the day he died. Simple logic. It does not mean his benefits were cut permanently. Time was going to come for Lungu to retire, and his benefits were going to be reinstated for life
Mister Fake name Musonda (real name Hamusonda). Explain how you can withdraw benefits that were set to happen AFTER DEATH, and yet when he dies, the benefits are back. I think this is above your head. Leave it to the adults in the room.
The body, the right to bury wherever rests with the family but the state as an interested party can ask to view the body just to verify that it is indeed for the former president.
It has taken this musonda guy three posts in a roll to explain the unexplainable, confusing him more than it does others. Anyway, he was compelled to write something that means nothing to him and all.
You neglected to use another ‘hypothetical’ case. Suppose the President who returned to active politics and lost his benefits retires again from active politics. Do the benefits remain withdrawn or can they be restored? Well, we do not have a hypothetical case here, we have precedence. KK returned to active politics and lost all benefits. We all remember how the big man was treated. The benefits were restored when he retired fully from active politics, though if I am not mistaken, the law was applied retrospectively. All former ministers are offered a state funeral regardless of what political state they were in at the time of death. So, can we therefore say that in death, one ceases to participate in active politics and is therefore entitled to the same benefits they lost while alive?
MUSONDA
You must be a big fool to be opening your stinking mouth so carelessly. *****
MUSONDA
Your dullness is at a different level and i see you going to an early grave very soon. continue mocking ECL Family because you have an immortal soul. very soon you will be humbled with your overated HH
Now Zambia is proving one thing only, HE WAS A SPY. FOR WHO? WE DO NOT KNOW? ZAMBIA TAKEN FOR A RIDE. NOW FIND HIM AND FINISH HIM.
Comment:Let ECL R.I.P.
HH IS VERY FINE. KALALUKA MY BUUYA LOZI MAN IS OK. WE SHALL ONLY AND ONLY CORRECT THE SITUATION.