The ECL Burial Case and Bill 13 Are Both about Property Rights.

By Chanda Chisala.

The protracted impasse of Edgar Lungu burial case appears took another twist when the Pretoria High Court decided to grant the government of Zambia the authority over the remains of their beloved father and husband. This was followed by an immediate appeal of the ruling by the family, to give the case a final hearing.

One thing this impasse has brought out clearly is just how politically motivated Zambians have become when taking sides over any issue. Those who support the UPND believe that the family has been petty, irrational, vindictive, and just hateful against their beloved president Hichilema, which is supposedly the only reason they didn’t want him at the burial of the late president. Those who support the Patriotic Front or oppose the UPND, believe that the family were right to not want Mister Hichilema at the burial, in honor of the wishes of the deceased, and that it is the current president who has been irrationally obsessed with viewing the body of his former nemesis.

If the UPND were in opposition and “bodies” were exchanged, they obviously would have taken the opposite position, as would supporters of the PF if it was their president in power.

As Zambians we need to move to taking our positions on issues based on principle and not just unthinking partisan politics or emotional personal battles. But this will only happen when our educated intellectuals, who are supposed to be our guiding lights, elevate the debates to abstract principles, to guide the rest of us so that we could take consistent positions that have nothing to do with personal loyalties.

I propose that in the ECL burial impasse, the principle that is at risk of being destroyed is the primacy of private property. The most civilised societies in the world have always been those that have had a higher respect for private property ownership than other societies. Those societies that have been left behind are those that took the longest to appreciate this powerful concept of the sovereign rights of an individual to own and control his own property, as long as he does not use it to physically harm other people.

We know that the body of every deceased person naturally belongs to the immediate surviving family of that person, just like the rest of the property they owned. We have thus now abandoned our traditional culture of “property grabbing” which disrespected the widow and children of a deceased person and shared his property to as many relatives as possible, according to the “wisdom” of the family elders, sometimes leaving his family virtually destitute. As we have become more enlightened, we recognise that the family and next of kin of the deceased have the supreme rights over his property, including his body, unless he stated otherwise in a documented will.

The judge in the Pretoria case was thus wrong to override the wishes of the family of Edgar Lungu by basically granting ownership of the former president’s remains to the Zambian state. The court should have followed the more civilised legal principles of their own country, which tend to protect rightful ownership of private property even when powerful entities are interested.

It is for exactly this same reason that we oppose the UPND government’s most recently infamous Bill 13, a piece of legislation that, again, aims to weaken the firmness of private property rights by giving final determination of land ownership conflicts to some lower government bureaucrat who can easily be influenced by political interests. This erodes the security of private property and takes us backwards in our process of modern civilisation.

What’s surprising about these positions taken by the UPND is that their party is led by a president from the business world, whom you might expect to be a strong proponent of strong private property rights.

The very foundation of capitalism, after all, is this principle of private property. It is the reason that capitalism ultimately triumphed over opposing ideologies, as it led to the unprecedented creation of wealth as people accrued more and more property from their hard work. During the Cold War, some countries sided with the anti-private-property side, known as communists, in which the state had supreme control over everything. The individual was nothing. The individual was to see himself as the servant of the society, and thus a servant of the state.

On the opposite side were the capitalists, who believed the individual was supreme over his own property, his own mind and his own life. In this system, it was the government that was the servant of the individual; their main job was to protect his property from those who want to take it or use it without his permission, even if they are in the majority. The Western capitalist side went as far as creating documents that would protect the individual even against the government itself, if they ever tried to violate his property rights. In the United States, which was leading the capitalist side, such inviolable rights are enshrined in what they called the Bill of Rights, the strongest part of the constitution that is nearly impossible to change. No law could be made that went against these rights; no action could be taken by the state.

On the other (communist) side, the individual was treated as nothing. The individual’s property was seen as belonging to the entire public and he was only a custodian of it. The political leaders presented themselves as the supreme authorities who had the wisdom to decide what should happen to any of that property. They claimed that they were in the best position to know what is always in “the public interest”. Not only could they confiscate any person’s property, including his business (“nationalization”), they believed they even had the right to set the prices of his goods (“price controls”), all in the name of this nebulous “public interest.”

The recent invocations of “public interest” by the Zambian Attorney General in the case of the Lungu burial case is reminiscent of this kind of retrogressive dangerous thinking. Public interest is not supposed to be just anything the authorities decide it means.

In our new civilised world, “public interest” should really only come into play when the property and lives of individuals are threatened by someone’s actions or indeed by acts of nature. For example, while the president and the Attorney General were busy fighting over the disputable “public interest” in Edgar Lungu’s burial process, the local Zambian people of Kitwe were fearing for their lives after the American Embassy warned its citizens to vacate the town due to alleged lethal air pollution. That is an issue of true public interest that should focus the government’s resources to fully establish if there is indeed an endangering of people’s lives and to decide an urgent solution. The main job of a government in a civilised society is to protect lives and property from those who might harm them, whether consciously or unwittingly. Real “public interest” should thus always have this aspect of emergency to justify government intervention on private property, like in the Covid pandemic case. It should never be about some ceremonial interest in funeral protocols.

The Zambian government, no matter which party is in power, should commit itself to protecting the sanctity and security of private property rights, as servants of the people, instead of being the one that violates them. They should certainly not be the ones doing the “property grabbing” from helpless bereaved families.

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