Who has the ultimate right over your body when you die? Will you be able to bury their remains the way you want? Can anyone take over and dictate the manner and place of burial?
Maybe the time has indeed come since, the Constitution now expressly provides for equality even in the marriage. This right stretches in a unique form and goes beyond life. After the death of the spouse, the surviving spouse has the first and untouchable right over the body of their spouse. This means that the surviving spouse has the right to decide where remains of the deceased will be interred.
The Constitution has also elevated the status of our customs to the constitutional level. Customs can now rank alongside the coded laws. However, the customs are yet to be codified and or reduced into writing. The customs will however only be accepted as the law only if the customs are not repugnant and or in conflict with the law.
The courts will now have to decide whether certain Customs are oppressive and or repugnant. A good entry is the question of the rights of the surviving spouse over the deceased spouse, widow inheritance and similar practices that have been around for centuries. In one of the recent cases, the court has quickly stepped in to crash customs that are repugnant. This was demonstrated in the case of Lucy Kemboi v Cleti Kurgat & 5 Others (2012) eKLR
The Court further was of the view that the rights of a spouse were provided for and protected by the Constitution, in that Lucy should not be discriminated upon by cultural practices, that she had an equal right as her in-laws and the clan did, to bury her husband’s remains. Our judges now are all out to interpret the law in a manner that promotes the National Values and Social justice.
Where the deceased left no burial directions, or where such directions are not legally or practically enforceable, it is suggested that the law should give primacy to the right of the surviving spouse to make decisions relating to burial. The law should select the surviving spouse and the deceased's next of kin as the most favoured person to determine the time, place and manner of burial who qualify and rank them in the following order: surviving husband or wife children; parents; siblings; grandparents; and uncles and aunts.
Problems might, however might arise where the deceased died testate but the executor's arrangements for burial conflict with those of the surviving spouse. Under such circumstances, the wishes of the executor as to burial should prevail over those of the surviving spouse.
Though the law regarding burial disputes has evolved from the S.M. Otieno case in the 80’s, more still needs to be done to consolidate the legal position and clearly depict the place of customary law in such cases. Perhaps it is high time that Kenya legislated on the area of burial, which has become a growing field of modern day litigation just like in succession matters. This could perhaps solve most of these disputes at the earliest of stages.
By Jacob Mwendwa Malelu – Researcher KLRC
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