JUSTIFICATION FOR A BURIAL LEGISLATION IN KENYA

INTRODUCTION

The issue of disposing a dead body has been a controversial subject in Kenya since the colonial era. Failure to have legislation on the same is what has contributed to most of the controversies. There is no provision as to who should have the responsibility of burying the deceased and even where the deceased should be buried.

Over and above the fact that many families have to deal with the agony of loosing loved ones, many suffer a double blow since they find themselves having to deal with painful emotional disputes regarding where to bury their loved ones. While some would like to bury their loved ones in a given manner or at one place, the others would not take that. This normally culminates in heated exchanges and uncalled for family fallouts. In order to avert such, many people have resorted to making wills that have provisions for disposal of their bodies. They specify where they wish to be buried when they die. Some people have even dug their own graves in preparation for their death. The big question however is whether there is property in a body that can be bequeathed to a person in a will.

There is currently no clear comprehensive legal provision in Kenya on the procedure for handling, disposition or settling of disputes relating to dead bodies or burial of persons. The only provision of the law that touches on issues of disposing of dead bodies is section 137 of the Penal Code which makes it an offence for any person to unlawfully hinder the burial of the dead body of a person or without lawful authority disinter (exhume), dissect or harm the dead body of any person or being under a duty to cause the dead body of any person to be buried, fail to perform that duty.

Over time the courts have decided in various cases that a person can include in his/her Will the precise method upon which their body can be disposed of, the place of burial and the manner of disposal. Such provisions or directions have no binding legal effect when one is alive. This by extension would mean that the maker of a will cannot dispose of his dead body. Such provisions amount to a mere request to executors to comply with the testator’s wishes. The courts have stated that the executor is not bound to give effect to those wishes if they are either unworkable or in conflict with the personal law of the deceased.

The Constitution embraces our Customs including the burial rites. In Kenya burial ceremonies are considered very important just like marriages and other social celebrations, thus the issue of where a person is buried has serious implications for families and their communities. It is such an emotive issue that parties have moved to court, delaying burials for months and even years not forgetting the financial burden placed on them.

The most common forms of disputes are usually around:

1. Inter-ethnic marriages which bring about cultural conflicts where the customs of the deceased and his or her relatives and family members on burial differ from those of the widow or widower as the case may be.
2. Where the deceased was polygamous, then an issue arises as to who among his families has the right to bury them, coupled up with cultural differences of the families. This is quite common in our society today.
3. Where the deceased person, prior to his death, expressed certain wishes on where to be buried but his relatives prefer a different location for any other reasons.
4. Religious conversion is also a factor that leads to such conflicts especially where the deceased person during his lifetime or prior to his death changed his religion for instance from being a Christian to a Muslim, this brings about the question of which religion should be followed in conducting the burial.

In determining if there is property in a body it is vital to address the question whether relatives have an interest in the remains of the deceased and if so what interests. Section 137 of the Penal Code implies that there is a duty to bury the dead and it is an offence for a person charged with that duty to fail or hinder the burial of that body. As a general practice however, the duty to bury is on the next of kin in the order of administration and if none is available then the legal representative.

In the light of this provision therefore, there is no ownership or property in a dead body that can be transferred to another in a will. The expressions in the will therefore remain just that, expressions. In case there is a dispute between the family members as to the disposal of a body, parties can apply to the court for determination on who should in those circumstances bury the deceased. In determining such issues, there are three main factors that the courts may consider in making their decision:

1. Religion, where the deceased changed his religion.
2. The will or wishes of the deceased person.
3. The customs of the deceased person.

Courts have been in the dark for a long time but now its time to provide the court with a clear guideline in terms of coming up with a legislation to govern burials in Kenya. Critical questions that ought to be answered under the proposed legislation include:

1. Who should have the right to bury the deceased?
2. Where should the deceased be buried?
3. Does a dead body have value?
4. When should the deceased be buried? (Time frame)
5. Do the wishes of the deceased on where he or she where to be buried be given effect to?