KK family goes to court over burial choice

KK family goes to court over burial choice

PF STILL CLINGING ON TO KK’ REMAINS AS FAMILY ASKS COURT TO COMPEL GOVT TO SURRENDER BODY TO FAMILY

Family says KK’s wish was to be buried next to his wife mama Betty

But PF wants to bury him somewhere then resume him. What is PF’s interest ?

IN THE HIGH COURT FO AT THE PRINCIPAL RE
HOLDEN AT LUSAKA
(Civil Jurisdiction)
IN THE MATTER OF:
IN THE MATTER OF:
BETWEEN:
0 76 g
2021/HP/———–

AN APPLICATION FOR JUDICIAL REVIEW
ORDER 53 RULE 3 OF THE RULES OF THE SUPREME
COURT OF ENGLAND 1965
THE PEOPLE

THE SECRETARY TO THE CABINET
Ex Parte KAWECHE KAUNDA

NOTICE of Application for Leave to Apply for Judicial Review Pursuant to the Provisions of
Order 53, Rule 3(2) of the Rules of the Supreme Court of England 1965

THE REGISTRAR, High Court for Zambia, at Lusaka, High Court Building, Independence Avenue, LUSAKA.
Names, Address and Description of KAWECHE KAUNDA one of the Children of
Applicant Dr KENNETH KAUNDA the First President
of the Republic of Zambia who died on 17 th June 2021 (hereinafter referred to as the”Deceased”) of Sub-Division No. 9 of SubDivision ‘A’ of Farm No. 28a, Lusaka, in the Lusaka Province of the Republic of
Zambia.

Decision or Proceedings In Respect of The decision made by the Secretary to the Which Relief is Sought Cabinet to bury the remains of Deceased at the Embassy Park on the 7th day of July 2021 in line with the wishes of the Government of Republic of Zambia (hereinafter referred to the “Government”) and thereafter be exhumed and reburied next to the Deceased’s wife Mrs Betty Kaunda on SubDivision No. 9 of Sub-Division ‘A’ of Farm No. 28a, Lusaka, in the Lusaka Province of the Republic of Zambia in accordance with the wishes of the Deceased.

Relief Sought
The Applicant prays for:
(a) a declaration that the Respondent’s decision that the remains of Deceased be buried at the Embassy Park on the 7 th day of July 2021 in line with the wishes of Government and thereafter be exhumed and reburied next to the Deceased’s wife Mrs Betty Kaunda on Sub-Division No. 9 of Sub-Division ‘A’ of Farm No. 28a, Lusaka, in the Lusaka Province of the Republic of Zambia in line with the wishes of the Deceased is null and void for want of authority on the part of the Respondent.
(b) an order of certiorari to remove into the High Court for the purpose of quashing the Respondent’s decision.
(c) an order of mandamus to compel the Respondent to release the remains of the Deceased to the family of the Deceased to be buried in accordance with the wishes of the Deceased.
(d) the Applicant hereby requests a hearing of this application before the Judge pursuant to Rule 3(3) of Order 53 of the Rules of the Supreme Court (RSC); if leave to apply for judicial review is granted, a direction be given that the grant of leave should operate as a stay of the decision to which this application relates pursuant to Rule 3(10)(a) of Order 53 of the RSC;
if permission to apply for judicial review is granted, a direction that the hearing of the application for judicial review be expedited;
(g) an order for costs; and and that all necessary and consequential directions be given.
The Facts, Law, Grounds of Judicial Review Relied Upon By the Applicant
1. Facts
[Il The Deceased was the first President of the Republic of Zambia and he held that office from the 24th day of October 1964 to 1991.
[21 After leaving office the Deceased lived at various places until sometime in 2004, when the Government of Republic built his retirement home on Sub-Division No. 9 of Sub-Division ‘A’ of Farm No. 28a, Lusaka, in the Lusaka Province of the Republic of Zambia where he lived with his wife Mrs Betty Kaunda.
[31 The Deceased outlived his wife who died 18 th September 2012 and was buried on Sub-Division No. 9 of Sub-Division ‘A’ of Farm No. 28a , Lusaka, in the Lusaka Province of the Republic of Zambia.
[41 During the life of the Deceased other persons have occupied the office of President of the Republic of Zambia who have since died.
[5] The first such person was President Levy Patrick Mwanawasa who died in office in July 2008.
[61 Until then the Government had not designated a burial place for persons that had held the office of President.
[7] President Mwanawasa was outlived by his wife and his wife with the concurrence of the Government agreed to have his remains buried at a place in Lusaka, which has become known as Embassy Park.
[8] By Statutory Instrument No. 64 of 2009, dated 18 th September 2009, made pursuant to Section 27 of the National Heritage Conservation Commission Act, Chapter 173 of the Laws of Zambia, the said Embassy Park was officially designated as a National Monument.
[9] The second remains to be buried at Embassy Park were those of President Frederick Chiluba who held the office of President from 1991 to 2001 and died on 19 th June 2011.
[101 President Chiluba was outlived by his wife and the decision to have his remains buried at the Embassy Park was made by his wife and family with the concurrence of the Government.
[111 The third remains to be buried were those of President Michael Sata who died whilst in office on 11 th November 2014.
[121 President Sata was also outlived by his wife and the decision to have his remains buried at Embassy Park was made by his wife and family members with the concurrence with the Government.
[131 The Deceased was the only person who held the office of President and who outlived his wife.
[141 There is no law, which obliges the Government to bury the remains of its former Presidents at Embassy Park.
[151 During his lifetime the Deceased was aware that his predecessors whom he had outlived had been buried at Embassy Park. However, his wish, which he shared with his children and grandchildren was that he be buried next to his wife on Sub-Division No. 9 of Sub-Division ‘A’ of Farm No. 28a, Lusaka, in the Lusaka Province of the Republic of Zambia.
[161 His wish was communicated to the Secretary to the Cabinet during his lifetime and the correspondence will be made available after discovery.
[171 President Kenneth Kaunda died on 17 th June 2021 and soon thereafter, the issue of the burial place of his remains came up.
[181 The position of the Government through the Respondent was that his remains be buried at Embassy Park contrary to his wishes.
[191 By letter dated 21 st June 2021, the Children and Grandchildren of the Deceased wrote to the Respondent reiterating the wishes of the Deceased to be buried next to his wife at on Sub-Division No. 9 of Sub-Division ‘A’ of Farm No. 28a, Lusaka, in the Lusaka Province of the Republic of Zambia.
[20] The Respondent responded to the said letter via his letter of 22 nd June 2021 wherein he proposed a compromise: that the remains of the Deceased be buried at Embassy Park on 7th July 2021 and that after a few months the remains be exhumed and reburied on Sub-Division No. 9 of Sub-Division ‘A’ of Farm No. 28a, Lusaka, in the Lusaka Province of the Republic of Zambia next to the Deceased’s wife to conform to the wishes of the Deceased.
[21] In response to the said letter the Children and Grandchildren of the Deceased
sent a letter to the President and copy to the Respondent dated 23 rd June 2021, wherein they rejected the proposed compromise and insisted that the wishes of the Deceased be respected that his remains be buried once and for all next to his wife.
[221 There has been no response from either the President or the Respondent. [23] Plans are at an advanced stage for the remains of the Deceased to be buried at
Embassy Park in complete disregard of the wishes of the Deceased.
11. The Law
(a) The Court Power of Judicial Review
[241 As to the general power of judicial review vested in this Court, the Applicant takes the liberty to draw the Court’s attention to the decision of the Supreme Court in Derrick Chitala (Secretary of the Zambia Democratic Congress) v The Attorney General, l wherein Chief Justice Ngulube said:
After all, since Ridge v Baldwin,2 the distinction between judicial and administrative activities has been swept away and as a general proposition judicial review now lies against inferior courts and tribunals and against any persons or bodies, which perform public duties or functions. There is, of course, no blanket immunity from judicial review even for the President: see Mwamba and Another v Attorney General. 3 (Emphasis ours)
[251 As the High Court’s power of judicial review of decisions of inferior Courts Applicant draws the Court’s attention to the observations of the Supreme Court in Frederick Chiluba v The Attorney Genera wherein the Court said:
“The remedy of judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself. ‘It is important to remember in every case that the purpose of [the remedy of judicial review] is to ensure that the individual is given fair treatment by the authority to which he has been subject and that it is not part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.’ (Chief Constable of North Wales Police v Evans [1982] 1 W.L.R. 1155 at 1160; [1982] 3 ALL E.R. 141 at 143, per Lord Hailsham L.C.). Thus, a decision of an inferior court or a public authority may be quashed (by an order of certiorari made on an application forjudicial review) where that court or authority acted without jurisdiction, or exceeded its jurisdiction, orfailed to comply with the rules of natural justice in a case where those rules are applicable, or where there is an error of law on the face of the record, or the decision is unreasonable in the Wednesbury sense (see para. 53/14/27).”5 (Emphasis ours)
[Il It may be contended that the citation of the parties to this application is wrong.
In support of same the Applicant will rely on the case of Dean Namulya Mung’omba and Two Others v Peter Machungwa and Others wherein the Supreme Court said when it comes to matters of judicial review in Zambia, Order 53 of the Rules of the Supreme Court of England and Wales shall apply and that our High Court Rules are inapplicable.
[21 Under the Rules of the Supreme Court of England and Wales applications for judicial review are cited as appears herein and the Applicant relies on the following proposition:
The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint, which sets the Crown in motion. The Crown is the nominal plaintiff but is expressed to act on behalf of the applicant, so that an application by Smith to quash an order of (for instance) a rent tribunal would be entitled R. v The Rent Tribunal, ex parte Smith.
Ill. Ground for Judicial Review
(a) Illegality
It is contended that the decision of the Respondent to bury the remains of
Deceased at the Embassy Park on the 7 th day of July 2021 in line with the wishes of the
Government and thereafter be exhumed and reburied next to the Deceased’s wife Mrs
Betty Kaunda on Sub-Division No. 9 of Sub-Division ‘A’ of Farm No. 28a, Lusaka, in the Lusaka Province of the Republic of Zambia in accordance with the wishes of the Deceased is illegal for want of authority on the part of the Respondent.
Dated the day of 2021.
AND FURTHER TAI<E NOTICE that upon hearing of this app Ication, the Applicant intends to use the affidavit verifying facts and the Notice of Application for leave filed before the
High Court copies of which are attached hereto.
This Notice was filed by:

LONGACRES
Tel.: +260-211-2275741
Email: info@simezasangwa.coml
P. O. Box 36824 | LUSAKA I ZAMBIA I

0768
IN THE HIGH COURT FOR ZAMBIA
HOLDEN AT LUSAKA
(Civil Jurisdiction)
In the Matter of Order 53,
And in the Matter of an
KAWECHE KAUNDA
BETWEEN:
THE PEOPLE
THE SECRETARY TO THE CABINET Ex Parte KAWECHE KAUNDA

AFFIDAVIT
Verifying the Facts relied on to Support Application for Leave to Apply for Judicial
Review

l, KAWECHE KAUNDA of Sub-Division No. 9 of Subdivision ‘A’ of Farm No. 28a, Lusaka in the Lusaka Province of the Republic of Zambia make oath and say as follows:
1. 1 am one of the Children of Dr KENNETH DAVID KAUNDA, the First President of the Republic of Zambia who died on 17th June 2021, at Maina Soko Military Hospital in Lusaka, in the Lusaka Province of the Republic of Zambia and the abovenamed Applicant, seeking the leave of this Honourable Court to apply for judicial review on the grounds set forth in the notice of application for such leave.
2. The facts and matters stated in paragraphs 1 and 23 of the grounds in the said notice of application are true to my knowledge.
3. Produced and shown to me marked:
(a) “KKI” is a copy of the letter dated 21 st June 2021 to the Respondent; and (b) “JS2” is a copy of the letter to the President of the Republic of Zambia dated
23 rd June 2021 and copied to the Respondent.
4. In the premises, I respectfully ask for leave to move the Court by way of judicial review as set out in the said notice of application.
5. I depose to the facts herein verily believing the same to be true to the best of my knowledge.
SWORN at LUSAKA by the said KAWECHE
– day of 2021.
DEPONENT’S SIGNATURE
BEFORE ME:

COMMISSIONER FOR OATHS
Tizic;na Marietta, LLB

Advocate of the High Court of Zambia
Commissioner for Oaths
This affidavit is filed on behalf of KAWECHE KAUNDA, the applicant.
IN THE HIGH COURT FOR ZAMB
AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA
(Civil Jurisdiction)
In the Matter of Order 53, rule 3 of the Rules of the Supreme Court.
And in the Matter of an Application for Leave to Apply for Judicial Review by FINANCE BANK ZAMBIA LIMITED
BETWEEN:
THE PEOPLE
THE SECRETARY TO THE CABINET Ex Parte KAWECHE KAUNDA

CERTIFICATE OF EXHIBITS

These are the exhibits referred to in the Affidavit of KAWECHE KAUNDA marked and
Dated the – – day of – 2021.

COMMISSIONER FOR OATHS

Advocate of the High Court of Zambia
Commissioner for Oaths

21st June 2021

To Secretary to Cabinet

Government to the Republic of Zambia
Lusaka

Re: Burial for First R ublican President Dr Kenneth Kaunda

We, the children, grandchildren and great-grandchildren are grateful to the State and the President, His Excellency Dr Edgar Chagwa Lungu, for according the First President of the Republic of Zambia, Or Kenneth David Buchizga Mutepa Kaunda,a State Funeral We wish to put it on record that we shall forever remain grateful for this gesture.

Following our discussion between the family and the State representatives, it was agreed that we, as the family, would provide guidance to the State regarding his burial wishes:

Therefore; the undersigned. children and grandchildren sat to consider governments proposal to bury him at Embassy Park, and feel grateful, but the family requests, with great humility, that the State consider his wish: Therefore, we propose that the First President accorded his last wish to be buried next to his wife the late Mama Betty Mutinkhe Kaunda on his farm.

In addition, with the prevalence of the raised coronavirus pandemic, we wish to reiterate that we would not be comfortable to proceed with the ten-province tour of the body of the First President.

We respectfully await further guidance on this matter.
Yours,

23 rd June, 2021
His Excellency Dr Edgar Chagwa Lungu
President of the Republic of Zambia
State House
Lusaka

RE: Dr Kaunda’s Burial at Embassy Park

The above matter refers and our letter addressed to the Secretary to the Cabinet dated 21st June, 2021 (attached herewith for ease of reference) and the letter of 22 nd June, 2021 from the Secretary to the Cabinet.

We the undersigned, representing the collective view of the Family, have taken into consideration the proposal to exhume Dr. Kaunda’s remains from Embassy Park after the burial to be relocated at his residence as a compromise to the family’s request. However, we find this proposal unnecessary as Our gallant First President needs to rest in peace at his final resting place.

We therefore humbly request that the government reconsiders its decision to bury him at Embassy Park and honour what was his only final wish to be buried next to his dear wife at his residence.
Yours Faithfully,
Kaunda Family
Cc Secretary to the Cabinet
Cabinet Office
Mundaula Kaunda
Mazuba Kaunda
Lubuto Kaunda
Masuzgo Kaunda
Wezi Kaunda
Malume Kaunda
Jennifer Mbuvi

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