Judge Wilfred Kopa Muma, appointed to the high court in 2019, heard the matter in his chambers, even as preparations for the official burial in Embassy Park were being completed.
It was brought by Kaweche Kaunda, one of the former Zambian president’s family, targeting the cabinet decision to bury Zambia’s first president, Kenneth Kaunda twice: first, in a formal state funeral at Embassy Park; and after that, for his exhumation and reburial at his private home, there to lie next to his wife, Betty Kaunda.
Counsel for the Kaunda family said that the government decisions were contrary to the wishes of the late former president and contrary to the wishes of the family, being ‘null and void for want of authority’. For the government to act as it did, there should first be a law that obliged all former presidents to be buried at Embassy Park – but there was no such law.
The family also claimed that the government plan for two burials was ‘laughable’, amounting to a form of disrespect. In addition, it was unreasonable and a waste of state resources.
In his decision, Judge Muma said he did not think that the decision to declare a state burial was unreasonable in the accepted sense. It was neither ‘outrageous’ nor in defiance of logic or accepted moral standards.
As he was considering an application for judicial review, he was concerned only about the decision-making process itself and not the merits of the original decision.
Responding to the basis of the family’s case – that Kaunda wanted to be buried at his home – the judge said: ‘This wish as much as I may take it with great sense of respect has not been expressed or exhibited in writing or otherwise thereby leaving it in the realm of speculation.’
He said he had seen a letter by a family member, addressed to the cabinet, saying that the children, grandchildren and great-grandchildren were grateful for ‘according’ Kaunda a state funeral. However, after the family considered the proposal to bury Kaunda at Embassy Park, they wanted the state to ‘consider his wish’.
They therefore proposed that Kaunda’s wish to be buried next to his wife should be adhered to. In addition, the family was concerned about the country-wide tour proposed for Kaunda’s body, given the coronavirus pandemic.
Despite this plea, however, a state funeral was decided on, along with 21 days of mourning and, said the judge, the same family member who wrote the original letter had ‘invariably’ attended the provincial funerals, despite the family’s wishes in the original letter.
The judge said what ‘greatly perturbed’ his mind was the fact that the application had been brought so late, and so close to the event that the family was challenging. No reasons had been given for the delay. ‘Where was the applicant all this time to have allowed the state to fully prepare the resting place,’ asked the judge. ‘I must say that there must be something more than meets the eye.’
Utmost faith was required in a matter of this kind and leave to bring such a matter would not be granted ‘if there has been deliberate misrepresentation of concealment of material facts’.
‘There is no empirical evidence adduced in relation to the wish of the first president of this country.’
And while the family said they wanted the funeral handled differently, they ‘in fact, in general, acquiesced to the attendant rules and protocol governing state funerals, and I do not think that the state funeral at this stage and in all fairness should be substituted for a family/private funeral for a great man of immeasurable stature.’
‘A state funeral must stand as such from beginning to end, and I do verily believe that even if I were to hold that it was a personal wish [of Kaunda], this in my view is one case which must demonstrate that public interest overrides personal interest.
‘The late Dr Kenneth Kaunda was not an ordinary person.’
The judge added, ‘I, nonetheless profoundly sympathise with the applicant, namely Kaweche Kaunda and any family members of the great Kaunda family who may have wished to end this state funeral at this stage and transpose it into a family/private funeral.’
He concluded by informing the applicant of the right to take the decision on appeal.
In summary then the main reasons for rejecting the family’s application seem to be that they produced no written proof that it was Kaunda’s own wish to be buried at his home; that the family had waited until the last minute to bring their application – and there might be something ‘more than meets the eye’ about this; and that the family did not appear to be certain about what they wanted, attending elements of the national funeral process, despite not wanting a provincial ‘tour’ to take place.
Finally, however, it seems to have been the judge’s own sense of propriety that, for a leader of the stature of Kaunda, it would be improper for there not to be a public funeral.