Zambia’s Attorney General Made One of the Worst Blunders in the ECL Burial Case

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