In this earlier post, we were reflecting on the 1986/7 saga pitting the Kager clan vs Wamboi Otieno over who should have control of the body of the deceased. In that particular case, the Court of Appeal granted the prayers of the clan, allowing them to inter the body of SM against the wishes of the bereaved wife.
We again find ourselves in almost a similar situation, albeit, with minor variations. The body of the late MP Kibra has already been cremated and so there is no contest on where it will lie. But there are certain similarities; like SM, Okoth was married to a non-Luo. Both were successful at their trades. Both lived their lives mainly in Nairobi.
The issue we have at hand is whether our bodies belong to us in death, and by extension to our nuclear family or whether the clan has a claim to the dead. Are we right, the urbane African, in demanding as part of dying wishes that we be granted private funeral, when like in the case of Ken OKoth, he led a public life? Do those who birthed us have a say in how we are disposed of? Since when we are dead we can’t do nothing, should we be the ones to determine how we will be sent off, who will be present or should this question be left to those who we have left behind to determine?
On a related matter, during nuptials, those who go to church say “until death do us part”, as part of their vows. What does this imply in the face of death? Should it not mean that death frees us of the obligations to the other? Can the society, in a sense, lay claim to this person who was yours by law, but is no longer?
Or is this, in a sense, the logical conclusion of the individualized lives we live today where Ubuntu- I am because we are- as was eloquently put by Cannon Mbiti?
So I think, I can ask these questions again?
- Who owns the dead?
- Can any person claim to exclusively own the dead?
Random thoughts 
‘Who owns the dead?’ That’s the sort of question that completely stops me in my tracks, Mak – first that you ask it, when I’ve heard no one else do so in such plain terms. And second, I haven’t the faintest idea how to answer it. It is interesting though, that relatives of the dead, do seem to believe that they own the remains in all sorts of ways. I always remember being impressed that Michaela Denis – star of early wildlife films set in Nairobi and well before your time – who ended her days in Nairobi, kept the ashes of both her husbands (in separate urns) inside her wardrobe. Also remember that the Kenyan burial disputes could reach epic proportions, and especially when it involved individuals who had changed faiths several times, and practitioners of each were claiming the remains. I seemed to discern that in some cases claiming the remains had much to do with laying claim to the deceased person’s wealth and belongings?
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I think you make a very valid point here. There is the feeling that by burying the body, a further claim can be made about what the dead left behind.
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My father was a chief for 42 years and I don’t think I have spoken of him anywhere since I started writing. He was enstooled at 34 years and he died at 76. Based on my observations, I think depending on your status in society your lifeless body may:
1. Belong to your extended family (brothers and sisters)
2. Belong to the larger community, if you are a chief or king etc., and these decide how you are buried. In the case of my father we (his children) don’t even know the exact location of his grave because by custom a chief was secretly buried at midnight before Saturday morning. Only three or four people carry out the actual burial while the rest continues in the wake keeping. This is the custom and it’s not meant to questioned or challenged.
I think it would be inappropriate for a spouse to own a corpse irrespective of the position of the law. In African traditional marriage, a partner has been “rented” out for procreation, it’s not a purchase. This is why when a woman dies, it is universal practice among all African tribes for her husband to return her and bury her with her kinsmen at his own expense. A man is in very big trouble if he disobeyed this custom.
Christianity with its contradictory doctrines, individualism and backed by the European common law is changing everything. And yes, I think in accordance with the vows (“till death do us part”), literally, it means in death marriage ceases but I doubt if Christians understand this vows literally.
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I think so too.
Here the man buries the wife in his home.
And it is not changing them for the better
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“Here the man buries the wife in his home.” — What tribe does that? Is it the Luo? Well it’s not universal then. Are you sure that’s the original practice. Because in West Africa too some bury their wives in their home with permission from the woman’s kinsmen. Are you sure the man doesn’t need to ask for permission from the woman’s family?
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Yes, among the Luo and I think generally among our communities here. Where there can be contest is when bride price was not paid.
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I see. That’s very interesting.
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Like a wise man once said while drunk, “Da dead? Oh, dey belongs ta da wurms ‘n da bugs, eventually. Hic!! Gimme anudder round ‘o dat vodka, barkeep, ‘n keep ’em comin’! Hic! Burp!”
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Da wise man should come meet my kinsfolk
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I know. People get INSANE over this stuff.
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We need to kick some ass, right
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We have faced similar quandaries here, where common law (derived from UK common law, but now has a life of its own) and and Māori customary law have approximately equal weight. And in death, conflicts do arise, as under common law the spouse has first say, especially if it is consistent with the wishes of the dead partner. In customary law, the wishes of the iwi (tribe) are paramount. Usually compromises are worked through, but occasionally it has resulted in body snatching and legal battles that continue for years.
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It is like sometimes the dead can’t rest in peace.
What is to be done?
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I think the dead are not too concerned about the situation, just the living 🙂
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Hahaha. Exactly. In fact I don’t know why one should worry about what happens to their bodies when they cease life
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Most are cremated here, as were my parents. They don’t even have a grave as their ashes were scattered on the Wanganui River. (their home backed on to the river)
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[…] customs around death and burial with specific reference to the Luo of Central Kenya. In the last post, I did ask who owns the dead and if it is possible for one individual to lay exclusive claim of the […]
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