Harriet James
Battles over who should bury their loved ones are nothing new. As families scramble to demand their rights, fights over the body is becoming a seemingly never-ending phenomenon.
The drama surrounding the last rites for the late Kibra MP Ken Okoth is only the latest in similar twists that followed cremation decisions, especially where no express will had been stated.
But while his European widow Monica stated that the fallen legislator had expressly stated his wish to be cremated, his father’s clan would hear none of it, insisting that he be buried next to his father in Kochia village, Homa Bay county as tradition demanded.
The argument that his parents had separated when he was a child and that the fallen MP had in any case not been to his father’s home fell on deaf ears. His mother, on the other hand, wanted him to be buried at her own homestead in Kasewe, Kabondo Kasipul.
The standoff bought to the fore the question: who has the ultimate right to bury a loved one? This question is entangled in multiple facets and impossible to give straightforward answer to.
By citing her late husbands wish, the widow, given her background, was obviously disengaged from perceiving the matter as wrapped in some sort of metaphysical/cultural warp.
For his father’s and even his mother’s kinsmen, death, bereavement, grief and mourning are a community matter.
In this worldview, the dead and the world of spirits dictate that specific steps and measures are taken as part of final rites, without which the living would suffer consequences.
Conducted as per culture, the spirits of the departed are appeased and community made immune to ill-fortunes.
In line with such dictates, Gladys Nyachieo, a senior lecturer of Sociology, says that in most African tradition, whenever death occurs, it is automatic that the body is buried in the ancestral land, usually the father’s side.
But there are several African communities who did not bury their dead, among them the Samburu and Masaai, who, instead, left the deceased in the bushes for wild animals to devour.
Among the Abagusii, if a youth of marriageable age dies, they are buried at the edge of the shamba away from the main compound.
If it’s a married woman, the body is buried in her husband’s land while the unmarried are usually laid to rest in their father’s.
In the case of the late governor Joyce Laboso, despite the fact that she was a governor in Bomet county and a Kipsigis, she was buried in her husband’s home in respect to the Luo culture.
“Burials are almost always an issue of clan/family not individual spouses. A woman’s family could oppose her husband’s burial if he had not settled dowry. If one were buried before dowry was paid it would mean his wife was not married to him, and therefore, could not inherit anything from him. While burials could also take place if the man had no house in the compound, a house would be hurriedly put up,” Nyachieo explains, adding that families could also oppose the burial of a woman they never recognised as their son’s wife, especially if they wanted him to marry again.
Among the Kikuyu community, disputes were non-existent until recently. David Waweru, an elder, says that the Kikuyu did not value the dead, thus it was not a huge thing to fight over it.
“A married man was usually buried in his own piece of land and if unmarried, he is buried in his father’s land or in a cemetery. For a woman, as long as the last dowry rituals have been completed in a ceremony known as gurario, she will be buried in her husband’s plot. It does not matter whether they had children, had been separated or she had children by other men,” he says.
Failure to pay the dowry in full means that a man cannot claim his wife’s body and neither would he receive any dowry for his daughters in the future.
Return dowry
For the Kamba, burial sites are usually ancestral unless in specific situations.
Jackson Masoo says unmarried youth are buried in their father’s compound without much fanfare.
A married woman is buried in her husband’s part of the family land or where they have lived together.
“The scenario changes when the couple is separated and dowry has not been refunded. In case the woman is remarried without dowry refunded to the first husband, the second husband has no right to bury her. A traditional ritual known as ntheo, the return of three goats to the ex-husband, can only reverse this process,” he says.
In the ritual, one of the goats is prepared for the family of the ex husband to feast on, and the other two are given to them to signify the end of the marriage.
“The other situation where the fight over bodies happen is when a polygamous man dies and the other wives want him buried in their compounds. In Kamba community, the first wife has the right to the body even if she left upon the arrival of the subsequent wives. As long as ntheo has not be performed, she can stop the burial process at any time,” Masoo adds.
No law
The advent of westernisation has brought about changes; most people have made homes away from their ancestral lands, giving families more burial sites options, and inadvertently battles over the body.
Family lawyer and High Court advocate, Martha Mugo, attributes this to the lack of a legislation to bury the dead.
“There is no law that speaks to where, how or who should bury a dead person. For example, if a man had three wives when he passed on, who would have the right to say where or how he would be buried? The existing law stops at how the dead body should be treated. On the other hand, in what can be referred as jurisprudence (past decided cases on the same), there is no specific direction as different courts have decided differently on the similar cases,” she explains.
While some courts have been applying customary law, others have applied the marriage law and others common law, resulting in the different criteria in deciding such cases.
One popular case is the Civil Appeal No. 31 of 1987, which pitted prominent lawyer SM Otieno’s wife Wambui Otieno and the Umira Kager clan.
Upon his death in 1986, Wambui argued Otieno had confided in her that he wanted to be buried in their home in Upper Matasia.
Clan vs widow
However, Otieno’s brother, Joash Ouga, with the support of the clan, stated that he must be buried in Nyalgunga as per Luo customs.
In the first ruling, Justice Frank Shields decided that Wambui had the right to bury him as his wife and someone who had been close to him.
An appeal was lodged, and Justice Samuel Bosire stated that while the right to bury lied with the personal representative of the deceased, who is the wife, the burial must be done in accordance with the customary laws of the deceased. In this case, customary law won.
“SM Otieno had denounced his customs while alive and had no interest whatsoever in following them. In fact, he had never built a house in Nyalgunga and had never taken his children there, as he never wanted them to eat or drink there. The question raised was, ‘if a person had never observed their customs in life, should they be subjected to them in death?’” notes Mugo.
It was, however, shown that Otieno had followed the customs to an extent, as he had named his children according to the Luo tradition.
Consequently, it was difficult for a person to alienate themselves from their customs. The lack of a will resulted in him being buried against his wishes.
“A will can be used to state the wishes of the deceased, where they may want to be buried. However, there is no legal backing on that as the work of a will is to state how the property of the deceased should be disposed and not for the purposes of burial rights. This means that because of lack of legislation, a will too can be challenged in court should all parties not be represented,” argues Mugo.
Closest kin
In another case, civil appeal no. 126 of 2018, a dispute emerged between brothers.
The firstborn son of Sellah Auma Odawa, Morris Odawa, wanted her buried at his father’s home in Masaana Sub-location in Vihiga county while her other son Samuel Ochieng Auma, with whom she lived after separating from her husband, wanted her to be buried in Kibos in Kisumu county.
Odawa claimed according to Luo customs, even though a woman has separated with her husband, upon death, her body has to be taken back to be buried at the home of her husband as long as she had sired children with the said husband.
He also stated that culture allowed him to bury her even when their father showed no interest in claiming the body.
On the other hand, Auma claimed that his stepbrothers never went to visit their mother once she moved to Kibos.
He insisted their mother had wanted to be buried in Kibos, with his lawyers claiming that establishing a home away from her husband was proof enough that she did not want to be buried in Masaana.
The court ruled in Auma’s favour and she was buried in Kibos.
Okoth’s case is some repects similar to that of SM Otieno. Just like Otieno, he had no interest in his rural home or even in following customs.
He never visited his paternal home since he left as a child. It was, therefore, baffling to see the paternal family claim any rights to bury him.
“I do not see why the paternal home should claim his body because, if they did not relate in life, why then should they relate in death. The wife is his representative, so she should have the right to bury her husband as per his wishes, as she was closest to him even in death,” adds Mugo.
