Burying SM: The politics of Knowledge & the sociology of power in Africa


Is a Luo-centric book on the struggle- legal struggle- over the body of SM that played in the courts in 1986/87 for 155 days by Cohen D.W and Odhiambo E.S.A pitting one hand the Umira Kager clan and on the other the widow, the late Virginia Wambui Otieno. Maybe it is Luo-centric because at issue is Luo funerary procedures and a dead Luo. I am going ahead of myself!

In Dec of 1986, SM Otieno died. He had been married to Wambui Otieno. They lived in Nairobi. They had interests or is it rights on a property in Upper Matasia, Ngong’ area where witnesses said Otieno had indicated he would wish to be buried. The widow upon his death announced he would be buried in one of their properties in Nairobi. The brother and by extension, the clan would have none of it. As he died intestate, this struggle, the struggle over who should bury the dead body played out in both the high court and Kenya’s apex court at the time, the Court of Appeal.

I found shocking some of the arguments advanced by the counsel for Wambui that because her husband could recite Shakespeare, he was no longer a Luo or subject to the customs, especially burial customs. To this extent, I still think the colonial mission succeeded in ways that have yet to be investigated fully. The question of progress and modern is brought into sharp focus in this trial. And it has the hallmarks of missionary activity where the christian convert is seen to have progressed, modernized so to speak. And that is the argument the widow and her counsel put forward.

I find contradictions in the arguments of the counsel for the borrowed when they on one hand argue against a home (read Nyalgunga) burial while at the same time demanding for a home (read Upper Matasia) burial. For a consistent position, I think they would have argued, for a cemetery burial.

The counsel for the clan argued that a dead Luo must be buried next to the ancestors.  Their argument that culture dictated this and there would arise negative consequences to those involved if this wasn’t actualized.

Whilst the book by Cohen and Odhiambo is a riveting read, they are silent on so many issues. They don’t tell us much about the SM-Wamboi union. How many children did they have, how many did they adopt. They mention only in passing Wamboi’s other dalliances but not with who, except that they were ‘prominent Kenyans’.

They do not address in any meaningful way the undue influence from state house on the judiciary, nor the relationship between the clan and Ker Oginga Odinga or Odinga and SM’s family in a way that would make it easier for the reader to understand why he took the position he did.

To their credit, they ask very important questions such as why leading scholars on Luo culture and history like Bethwell Ogot and Prof S.H Ominde were not called by the defense for expert opinion. They opine the judges listened to the men, older men and in effect silenced Wambui and the women.

The book is a good exploration in the creation of and maintenance of culture and knowledge. It’s a riveting read that leaves one desiring more. In fact, it ends so abruptly. I felt there was more that needed to be said, what, I don’t know yet.

At the end, some of these questions come to mind

  1. Who owns the dead?
  2. Can any person claim to exclusively own the dead?
  3. What is the position of the woman with regard to a dead husband?
  4. Was the court right in their ruling when they sided with the clan?

The legal struggle, to me an observer far removed from the events, is a sign of failure first on the part of adults to adulting and of social systems. Had these been functional, the two families involved in this struggle would have arrived at a solution that satisfied both ends, besides SM was already dead. Why subject his body to such indignity.

 

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About makagutu

As Onyango Makagutu I am Kenyan, as far as I am a man, I am a citizen of the world

22 thoughts on “Burying SM: The politics of Knowledge & the sociology of power in Africa

  1. johnfaupel says:

    Another example of legal interference in people’s personal lives.
    Aristotle said ‘the law is reason, free from passion’ but the law is sometimes an ass! Not long ago, in the UK at least, abortion and homosexuality were condemned as wrong and subject to retributive justice, and before that votes for women and the abolition of the slave trade were regarded as almost unthinkable. Although we seem to believe reason should determine the difference between right and wrong, at one time our passions knew better. The law has become an interfering busybody in personal matter such as where the dead should be buried.

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    • makagutu says:

      The clan appealed to customary law while the widow argued common law as practiced within the Commonwealth should be the guide so I don’t see how it could have escaped the arm of some law. Though I think there would have been a much better way to resolve the dispute without recourse to the courts.

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  2. shelldigger says:

    I am of the opinion that the wishes of the deceased should be adhered to, except in cases where it is either impractical, or illegal. This is a time when the grinding of axes should be put to rest.

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    • makagutu says:

      The wishes of the deceased in this case seemed to have been at odds with what the clan thought and given that the dead can’t bury themselves, I think they should have written this someplace especially because he was a lawyer!

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      • shelldigger says:

        A persons will can exist independently from a clan. The only reason the clan would interfere here is to suit their own group agenda. Thus knowingly defying the wishes of the deceased. I find that reprehensible. A persons own burial wishes, I feel, should be followed despite what the clan thinks. This is a time for setting aside clan think and honoring the dead.

        At least in my humble little mind. Same goes for all cases of family interference all over the world. Shut the hell up with the bickering and bury your dead according to their wishes.

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        • makagutu says:

          You see, when you are born and when you are dead are the same to me. Things are done to you against your wish or rather, you really have no wish so to speak.
          So while I am sympathetic to the dead, I am ambivalent because at the end of day, you really are dead and you can’t bury yourself.

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          • shelldigger says:

            That right there is why I love the Mak. 🙂 I certainly can’t argue against that wisdom. I can see now where my feelings may be more meaningful to the living, the dead won’t know the difference.

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          • makagutu says:

            In fact part of the issue in this case, at least from I sit, is the thinking by the widow that if the deceased was buried in the village, the immediate family would disinherit her. So by burying the body away from Nyalgunga, this wouldn’t happen. A fear that made sense at the time because many women have been disinherited by the in laws. But there are also many stories of women who have lived in peace with the in laws.

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          • shelldigger says:

            That’s what I meant when I said a death in the family is a time to put the grinding of axes to rest. There really need not be all the drama with the living, while there is someone in need of burying.

            This situation you describe, should by the default of goodwill during a time of crisis, be a non issue. But alas we are human and nothing tends to bring out the worst of folks than a death in the family.

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  3. renudepride says:

    A very interesting review and discussion. We are all influenced by culture whether we admit it or not and only a case such as the one you presented here makes it “real.” You asked some very profound questions at the end of your post and I’m still considering my own feelings on this. A very good post. my friend. Now that it’s finally Wednesday, I have enough to occupy my muddled brain throughout the weekend! 🙂 Naked hugs!

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  4. Thank you for sharing, my friend! It is an interesting read.

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  5. Interesting post! Very informative

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  6. […] this earlier post, we were reflecting on the 1986/7 saga pitting the Kager clan vs Wamboi Otieno over who should have […]

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