1. THE 2010 CONSTITUION
The new Constitution does not give any guidelines on burials but the preamble talks of “we the people ...... proud of our culture” shows the commitment to tribal culture. Under Article 11 (1) the Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. The state shall promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage. The Constitution empowers Parliament to enact legislation on protecting culture.
Article 44 (1) states every person has the right to use the language and to participate in the cultural life of the persons choice
Article 45 4(b) empowers parliament to make laws that support family and Article 2(4) states “…any law, including customary law that is inconsistent with this Constitution is void to the extent of such inconsistency...”
Article 27 (3) is to the effect that Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. The Constitution gives both women and men the right to equal opportunities in cultural and social spheres and also provides that there should be no discrimination directly or indirectly against any person on any ground
Article 32. (1) is to the effect that every person has the right to freedom of conscience, religion, thought, belief and opinion. (4) A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.
BIRTHS AND DEATHS REGISTRATION ACT
It is an Act of parliament to provide for registration of births and deaths. Section 7 is to the effect that it shall be the duty of every registrar to keep a register of births and a register of deaths and to enter therein, respectively, the prescribed particulars of every birth and death notified to him. The registrar appointed to register births and deaths occurring outside Kenya shall keep a register of births occurring outside Kenya and a register of deaths occurring outside Kenya.
Under section 8, a registrar shall not register a birth or death after the expiration of six months from the date of such birth or death, except upon receiving the written authority of the Principal Registrar issued in accordance with the rules, and upon payment of the prescribed fee.
Section 16 provides that every person notifying a death shall, to the best of his knowledge and ability, give the prescribed particulars, which shall be entered forthwith by the registrar in the register, and the person notifying the death shall certify to the correctness of the entry by signing or, if he is illiterate, by fixing his mark to the register.
Section 17 is to the effect that Upon the death of any person the registration of whose death is compulsory, it shall be the duty of the nearest relatives of the deceased present at the death or in attendance during the last illness of the deceased, and, in default of such relatives, of every other relative of the deceased dwelling or being in the same registration area as the deceased.
Section 21 provides that no person shall bury, cremate or otherwise dispose of the body of any deceased person the registration of whose death is compulsory, without.
This Act does not state who is responsible for deciding who should be responsible to have the last say in burial of a deceased.
THE JUDICATURE ACT
There is the Judicature Act Cap.8 laws of Kenya. Section 3(2) supports customary law and is to the effect that the Court of appeal and High Court shall be guided by African customary law in such cases in which one or more of the parties is subject to it so far as it is applicable and it is not repugnant to justice and morality or inconsistent with any written law and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.
The Act is thus silent on the issue of burials also.
THE SUCCESSION ACT
Act of Parliament to amend, define and consolidate the law relating to intestate and testamentary succession and the administration of estates of deceased persons.
Part II of the succession Act deals with testate succession. It occurs where a person, desirous of retaining absolute or limited control over his property after death, arranges to ensure that upon his death the property passes to a person or persons of his choice. These arrangements are made through a valid will. Will is defined under section 3(1) as the legal declaration by a person of his intentions or wishes regarding the disposition of his property after his death duly made and executed in accordance with Act.
A will is chiefly concerned with disposing of property, but it can be used for other purposes and for incidental matters, such as giving directions as to the manner of disposal of the deceased’s body or that the deceased’s body or part of it be donated for medical or scientific purposes. Though a will can state that, there is no legal backing on it.
Section 34 is on intestate succession. It is to the effect that a person is deemed to die intestate in respect of all his free property of which he has not made a will that is capable of taking effect.
This also encompasses ambiguity when it comes to burial. The whole Act is also very silent on who should decide the burial of the deceased especially if he died intestate.
THE MARRIAGE ACT
It is an Act of Parliament to amend and consolidate the various laws relating to marriage and divorce. Section 3 (2) is to the effect that Parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage. This provision is still anchored in the constitution. Part IV is on marriages under customary marriages, which are potentially polygamous.
The Act is silent on who should bury the deceased incase he had several wives. This has been a very contentious issue incase the man dies as which wife should have the right to dispose the body of the deceased.
THE MATRIMONIAL PROPERTY ACT, 2013
Matrimonial property, means either the matrimonial home household goods and effects in the matrimonial home, any movable or immovable property jointly owned and acquired during the marriage or trust property, including property held in trust under customary law, does not form part of matrimonial property
Section 4 is to the effect that a married women has the same rights as a married man to acquire, administer, hold, control, use and dispose of property whether movable or immovable. This brings out the idea of equality before the law.
The Act is silent on who has the right to dispose of the body of the deceased.
Section 137 touches specifically on burials. However, it does not say who should bear the responsibility of burying the deceased. It states that Whoever unlawfully hinders the burial of the dead body of any person, or without lawful authority in that behalf disinters, dissects or harms the dead body of any person, or, being under a duty to cause the dead body of any person to be buried, fails to perform that duty, is guilty of a misdemeanour.