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Concept Paper on Need for Disposal of Dead Body Legislation in Kenya

INTRODUCTION

Disposal of dead bodies takes various forms. It includes burials, cremation and entombment. Burial is the act of burying a dead body. It takes the form of interring a person in the ground, and is probably the simplest and most common method of disposing of a body. It is generally accepted to be one of the earliest evident forms of religious practice. Today, most burials are presided over by a religious figure, and in many cultures they are conducted with great respect. In some cultures, exactly how one is buried may make all the difference.

Some reasons why people are buried:

  1. Respect for the physical remains. If left lying on top of the ground, scavengers may eat the corpse, considered disrespectful to the deceased in many (but not all) cultures.
  2. Burial can be seen as an attempt to bring closure to the deceased's family and friends.
  3. Many cultures believe in an afterlife. Burial is sometimes believed to be a necessary step for an individual to reach the afterlife.
  4. Many religions prescribe a particular way to live, which includes customs relating to disposal of the dead.
  5. A decomposing body releases unpleasant gases related to decomposition. As such, burial is seen as a means of preventing smells from expanding into open air

Entombment is another form of disposing off a dead body. It is the act of placing human remains in a structurally enclosed space, or burial chamber. This differs from burial in that the body is not consigned directly to the earth, but rather is kept within a specially designed sealed chamber. There are many different forms of tombs, from mausoleums (specifically built for this purpose), to elaborate (and often decorative) family crypts, to a simple cave with a sealed entrance.

Cremation is also another form of disposing a dead body. It is the process of reducing dead bodies to basic chemical compounds in the form of gases and bone fragments. This is most often performed in a crematorium, though some cultures, such as India, do practice open-air cremation. Hindus cremate their dead, believing that the burning of a dead body signifies the release of the spirit and that the flames represent Brahma, the creator.

Mass burials are also another form of disposing off the body especially when expedience is an issue. It happens mostly in the case with a plague or a disaster. A mass grave is simply a singular location in which multiple human remains are interred.

Human burial practices are the manifestation of the human desire to demonstrate respect for the dead. Cultures vary in their mode of respect.

CHRISTIAN CULTURE

The disposing of dead bodies by Christians takes the form of burials. Christian culture often demands that the body be laid flat, with arms and legs extended and aligned east-west, with the head at the western end of the grave. This is to allow them to view the coming of Christ on Judgment day.

ISLAM CULTURE

In Islam, the head is pointed toward and the face turned to Mecca. Funerals in Islam (called Janazah in Arabic) follow fairly specific rites, though they are subject to regional interpretation and variation in custom. In all cases, however, sharia (Islamic religious law) calls for burial of the body, preceded by a simple ritual involving bathing and shrouding the body, followed by salah (prayer). Cremation of the body is forbidden. The deceased is then taken to the cemetery for burial (al-dafin). While all members of the community attend the funeral prayers, only the men of the community accompany the body to the gravesite. It is preferred for a Muslim to be buried where he or she died, and not be transported to another location or country (which may cause delays or require embalming the body). If available, a cemetery (or section of one) set aside for Muslims is preferred. The deceased is laid in the grave (without a coffin if permitted by local law) on his or her right side, facing Mecca. At the gravesite, it is discouraged for people to erect tombstones, elaborate markers, or put flowers or other momentos. Rather, one should humbly remember Allah and His mercy, and pray for the deceased.

It is not permissible for Muslims to delay the burial in order for the maximum number of relatives to see the deceased, as is common practice among other communities. Once death is evident, the body should be prepared and taken out of the house for prayer and burial as soon as possible. In this way, contact with the dead body is minimized, which keeps the grief and hurt of seeing the dead down to a minimum. Abu Hurayrah related that the Prophet said "Hasten the funeral rites." Sahih al-Bukhari vol. 2, p. 225,. dead should be buried in the same area where they died. Transporting the body to another area or another country is not permissible if it will unnecessarily delay the burial or cause financial or other hardship. Muslims are obliged to bury everyone who dies in areas under their jurisdiction. Muslims should not be buried beside non-Muslims, or non-Muslims beside Muslims; each should have their own separate graveyard.

The grave should be dug deep and wide, and be well prepared. It should be dug straight down (shaqq) with a burial chamber in the middle or with a niche (lahd) to create the burial chamber on the side. Burial chamber is created from the earth, and sealed with bricks of unbaked clay. Both methods were practiced in the time of the Prophet sallallahu 'alayhi wa sallam. However,

Two or more bodies may be buried in the same grave. This may be due to the large number of dead resulting from a natural calamity or plague, or dead may be from the same family. [Sahih al-Bukhari, vol. 2, p. 239, #427]. It is preferable that only men should be responsible for placing the dead body inside the grave, even if the dead person is a woman. This is due to the fact that it has been the custom among Muslims from the time of the Prophet sallallahu 'alayhi wa sallam until today. The process requires a certain amount of strength, and men are generally stronger than women. The blood relatives of the dead have more right to place the body in the grave, based on the general meaning of the following Qur'anic verse:

"Blood relatives have more right to one another in Allah's scripture." [Al-Qur'an 8:75]

The Husband is permitted to place his wife in the grave on condition that he did not have sexual relations with his wife the previous night. [Sahih al-Bukhari, vol. 2, p. 238, #426

HINDU CULTURE

Indian family members will pray around the body as soon as possible after death. People will try to avoid touching the corpse as it is considered polluting. The corpse is usually bathed and dressed in white, traditional Indian clothes. If a wife dies before her husband she is dressed in red bridal clothes. If a woman is a widow she will be dressed in white or pale colours.

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