By Chanda Chisala
A disturbingly large number of Zambians have apparently failed to imagine that the president of Zambia could legally be uninvited or barred from attending a state funeral. This might be because we have been programmed to think the president is our king or super chief – the chief of chiefs – who is too special to ever be barred from any event, especially one involving the state. Other people are even saying it’s impossible for the Commander in Chief of the Armed Forces to not officiate or lead any event where the military is performing state honours. The recent controversial impasse between the president of Zambia and the late president Lungu’s family could thus be a great opportunity to learn about how powerful the rights of Zambian citizens are, even when faced against the power of the state.
The most powerful commander in chief in the entire world is arguably the president of the United States, at least if we go by military budgets (the US military budget is bigger than the next nine biggest national military budgets combined). And yet Americans understand that their president is just a human being who is elected to serve them, and his personal wishes do not necessarily override the wishes of any American citizen or family if they clash against him. Thus, the president can’t just gatecrash a state funeral where he’s unwanted there, for example, even if he is the Head of State!
In 2018, when senator John McCain died, he was granted a state funeral because of the enormous stature he had reached in American society. And yet McCain had made it clear that he did not want the sitting president of the United States, Donald Trump, anywhere near his funeral.
Despite this, Trump had to grudgingly issue a presidential proclamation ordering all flags to be flown at half-staff at all federal buildings, military posts, embassies worldwide, and even at the White House where Trump was resident. This was officially a full state funeral with military honors and gun salutes, and it was attended by former United States presidents and dignitaries from around the world, but president Trump was not to be seen anywhere near these ceremonies, as desired by the deceased and his bereaved family.
McCain was of course not a former president, so one might think that for former presidents there would be no such option of disinviting the president.
Fortunately, we have a way of knowing whether this is true or not. When George H W Bush also died during Trump’s presidency, president Trump was invited to the state funeral this time, even though he was well known to have an acrimonious relationship with the Bush family. The very fact that Americans were surprised that Trump was invited shows that it is not automatic that the incumbent president has to be invited to a state funeral. The newspaper reports about this event make that crystal clear. See, for example, how the New York Times distinguished between the McCain funeral and the Bush funeral concerning the Trump invitation:
“Unlike Senator John McCain, who made clear Mr. Trump would not be welcome at his own funeral in September,” The New York Times reported, “ Mr. Bush opted not to break tradition by keeping away the incumbent president. But he did not invite Mr. Trump to speak.”
You can see that even though Bush decided to keep tradition (tradition, not law) of inviting sitting presidents to state funerals, even he decided to limit Trump’s role to that of only an attendee rather than allowing him to speak or officiate at the funeral, as is customary. Trump complied and said nothing at the funeral. He was happy just to be at least invited this time!
In Zambia, our colourful Vice-President thinks it is “treasonous” – a crime that is punishable by death – to ask the president not to attend a state funeral! (Even if you don’t like HH, I suggest you keep praying for his health, given who would take over if God-forbid anything were to happen to him).
Nixon
Besides the question of funeral invitations, there has also been further debate in Zambia about whether the family of a deceased former president even has the option of declining a state funeral altogether, in preference for a private funeral or even a burial elsewhere.
We know that the US does not have to be a model for everything, but we can check if they have had to deal with this scenario too, since they are a much older democracy than Zambia, having had at least 45 elected presidents compared with Zambia’s seven. This is why it is common practice for Zambian lawyers to check how they handled similar matters of law when faced with a legal quandary.
When Richard Nixon died in 1994, his two daughters who were his only next of kin, expressed his wish to not have a state funeral. They wanted only a much simpler family event at his presidential library and they wanted him buried next to his late wife in his hometown in California, as he had desired, far from Washington, DC where all state funerals are conducted.
Again, the government did not argue with this choice and they simply helped the family fulfill the wishes of their father. On the other hand, the family did accept a few of the customs that normally accompany a state funeral, even while rejecting the main ones. The state not only granted their wishes within the law, but even organized invitations for the dignitaries to attend the private funeral.
Contrast this with the Zambian High Court case of Kaweche Kaunda against the Secretary to the Cabinet in which the judge clearly misguided himself when the Kaunda family wanted to honor the wish of their father (Zambia’s first president, Kenneth Kaunda) to be buried at his farm and not at Embassy Park. The judge claimed that the Kaunda family had to follow whatever protocols the Secretary to the Cabinet wanted just because they had already accepted the state funeral. No, this is really just a perk given to a president and not some law that has to be obeyed. It is just like any of his other perks and he (through his family or directly) can accept or reject some or all of these perks.
For example, just because a retired president accepts to receive a house from the state does not mean he also has to accept all the other benefits, including the three security personnel and the driver from the state etc. He can choose what he wants to receive; you can’t say that once he accepts one of these perks, then he has to accept whatever else they offer him. This even applies to a sitting president: living in State House is a perk that is offered to him, and traditionally presidents have accepted this perk. But a president has a right to decline this offer and any other perks, including a presidential salary. Should he be forced to accept everything that is offered to him just because he has accepted some things in presidential “protocol”?
The Kaunda family were happy with a state funeral with the gun salutes etc, but they did not want the body of the president being taken around all the provinces of Zambia, for example, and they begged the Secretary of the Cabinet not to do this, especially due to the coronavirus pandemic at that time. The Cabinet Secretary ignored their pleas and they reluctantly accompanied the body to all the provinces. To make matters worse, this is not even a perk that is written down anywhere in normal protocols, but they were still forced to go along with it as if it is the law of the land.
Most painfully, the Secretary to the Cabinet also ignored their pleas to let them honor the wish of president KK to be buried at his farm next to his beloved late wife Betty, just as Nixon had also desired in the US. The judge sided with the Secretary, despite the able lawyer from Simeza and Sangwa correctly pointing out that this government official had no legal right to just overrule the wishes of the former president at a whim. Interestingly, this judge could not see the irony of saying that KK was so special (“no ordinary person”) that we can treat him so badly by ignoring his deepest final wish!
No, you cannot just say that public interest supersedes individual interest, when there is no physical harm being inflicted on others by an individual’s wishes concerning his own life. This is precisely why the Bill of Rights exists. As Kaunda’s lawyer argued, the government needed to first take the issue to parliament to pass a law if they want citizens to follow some specific procedure, instead of forcing them to follow some random orders from a government official.
The rule of law means that government officials cannot just take over private property to treat it as they wish, against the wishes of its natural or legal private owners. And no, a former president’s body does not magically become “state property” just because some politician or bureaucrat says so. The body belongs to his family, just as his houses, cars and all other property of his belong to the family and they have a right to honor any wishes they received from him.
The bottom line is that our young democracy has a long way to go before our mindsets truly evolve to begin seeing individual (and property) rights as sacrosanct. This also means we should stop seeing any ruling president as our almighty king to be treated like a god. All men are created equal.
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.
Makebi Zulu should have read this article first before allowing the wishes of Edgar Lungu to be dishonoured. If the president of USA itself can be chased from a state funeral, who is Kainde to not be chased if the owner doesn’t want him there?
Very sad that people like Winter Kabimba is saying he does not believe ECL said he did not want HH near his body implying that ECLs relatives are lying. Very divisive talk when we are talking of unity. And ZNBC in their usual partisan, political and unprofessional nature decide to re televise Winter’s divisive talk.
ZNBC has always been immature and childish
And Winter Kabimba in his usual ill advised nature is accusing ECLs family of being liars even before burial when people are trying hard to cool the tension in the countrt , extremely ill advised. He does not even have a party or a following in the first place. Just jumping from radio and TV stations, emulate Kalaba who is serious and on the ground mobilising his party and measured in his approach than just being a historian on TV
What is this guys trying to proove? McCain was NOT a former President, and I think he has gotten the answer with regards to George Bush, that he was invited regardless of the animosity bewteen Trump and the Bush Family.
So, if the author is trying to use McCain as a point of arguement, then he is bending the reality to suite his logic, the same way the Makebi`s/Lungu`s were trying to do.
The argument in above article should be shut down, should not be tolerated at all.
Don’t be dull. McCain funeral was a STATE FUNERAL. UPND was saying you can’t have a state funeral without the head of state.
For the Bush family, they also had the option of not inviting him, but they just chose to invite him. What does that tell you? It is always up to the family.
Get it in your heads, you have nothing to do with America, just sh!thole!!! How morally and intellectually derelict is Afrika really?!!! With a culture millenia older than america’s this “learned one” just drops this?? Very sad, very sh!thole indeed….
Ba Charlie diaspora, tekanyani. Has your vocabulary run out of decency?
I want to thank Edgar Lungu for having managed the affairs of the country very very well despite covid disrupting the world including his programs. His economy in terms of cost of living was by far better than what we have now. Please advise what time the body is arriving tomorrow so that we can line up the great east road to welcome him please please
Ati he was arrested 15 times, it simply means you are a problem. Iwe weka out of 20 million Zambians you are arrested 15 times, what does that say about you. People can just wake up ati let us go and arrest him, just how? That is why na economy yamukanga, just clutching to free education like a drowning man and yet people voted for cheaper mealie meal, cheaper fuel, ending load shedding as promised and not free education. And remember his economy was already failing even before the drought. Full of excuses, he started by blaming the Ukraine war, then PF this PF that, then conveniently settled for the drought
1. MCCAIN WAS NOT A FORMER PRESIDENT.
2. WHAT DOES THE CONSTITUTION SAY ON POWERS OF THE OFFICE OF PRESIDENT IN THESE MATTERS? DON’T JUST BWATA BWATA WITHOUT EXPLAINING THE LIMITS TO WHICH THE INCUMBENT PRESIDENT HAS OVER STATE FUNCTIONS.
3. WHAT THE VICE PRESIDENT MEANT IS THAT ANY OTHER PERSON WHO PRESIDE OVER A STATE FUNCTION WHEN THE PRESIDENT IS STILL FUNCTIONING IS COMMITTING TREASON BECAUSE THAT IS USURPING AUTHORITY OF A FUNCTIONING PRESIDENT.
THIS IS NOT TRUE. THE WORD TREASON FROM THE VICE PRESIDENT DOES NOT FIT ANYWHERE IN THIS EQUATION. TOTALLY MISPLACED
Iwe Gary Ndhlovu. So who do you think officiated at George H. Bush funeral since Trump was not officiating there he was just a guest. Did they commit treason?
Mr.Gary. Maliciously obstructing a presidential motorcade is not treasonous, but a mere traffic offence says UPND. Protocol calls that where ever the president is, no opposition must be seen nearby. Why did HH force himself to attend the Kuomboka? In your clever mind, the only treason case is politely asking the president of the republic to stay away from the funeral of his predecessor. He has broken procedure before, he can just bend on this one if he does not want to break.
I seriously admire Presidents in the developed world, some ride a bike to work, others lift their own umbrellas when it is raining even when the aide de camp is there, in this part of the world called Africa there is a mistaken belief that the President is the alpha and the omega to an extent of misleading ourselves that what ever the President says is policy – what a miscarriage of justice. In the developed world the President cannot just wake up and say something and it becomes policy
What a precise and elaborate article. I wish Winter Kabimba and Namutale Nalumango can read this. The desires of the state cannot override the desires or wishes of the deceased and his family. No ways, there is no law giving the state an upper hand with funeral and burial rites even with the declaration of a state funeral. How we complicate simple things in Zambia and sounding very intelligent
Before the VP talked about treason, she actually abused the persona of Miles. She mocked him of having been pf president and later relinquish the post to Lungu. True to that, but it was unnecessary and she was sarcastic, animated, about it. So unfortunate.
Our Vice President is seriously incompetent. I like her but she is challenged. Every body gives what they have. The lesson is that parties must be very careful with this issue of a adopting a woman running mate to woo female voters. Look at how it has worked against us. We should be going for meritocracy. We have a President who has clearly failed to improve the living standards of Zambians and just has one card only called free education. Meanwhile people are hungry. He had already failed even before the drought – Fact. Meritocracy please