By Jane wachira
S.M. Otieno, a prominent trial lawyer, died intestate in 1986. The respondents, members of the deceased’s Umira Kager clan sued his widow, Wambui Otieno, seeking to have him buried in his ancestral home in Nyalgunga, Siaya, in accordance with Luo customary law.
The widow, from the Kikuyu community, wished to bury him in their suburban home in Nairobi in accordance with common law.
Wambui’s lawyer, John Khaminwa, argued that the deceased had, through Christian urbanised lifestyle, and statutory marriage to a non–Luo, forsaken tribal custom for a modern life, and that customary Luo burial therefore did not apply in his case; rather the applicable law was common law. On its part, the Umira Kager clan asserted that Otieno’s birth and upbringing as a Luo was paramount and that therefore customary law applied in this case. The learned Judge in his dicta averred that English Law had made no provisions on the issue of burial, and that customary law sufficed.
The Court of Appeal consequently ordered that the deceased be buried in his ancestral home according to the customary practices of his clan. The Court stated that customary law is the personal law of Kenyans and Africans and there was no way an African citizen of Kenya can divest himself of association with the tribe of his father if those customs are patrilineal, irrespective of the person’s choice of lifestyle – personal law means the law that relates to a person’s status or identity and includes, inter alia, the law of marriage, divorce, succession, custody and burial.
The main issues of the case touched on (a) the Luo customary law with regard to the burial of the deceased, (b) whether the deceased was subject to the Luo customary law, (c) the law applicable to the deceased in regard to the burial of his body, and (d) whether Luo customary law relating to burial generally is repugnant to justice and morality or inconsistent with any written law.
Regarding the law applicable, the court found no English authorities based on common law dealing with burial, and was left with no choice other than adopt personal law – in this case customary law. Section 3(2) of the Judicature Act reads: “The High Court, the Court of Appeal and all subordinate courts shall be guided by African Customary Law in Civil Cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.”
Justice v morality
The court further made a comment that I wish also to observe here: “…we are not concerned in this case with whether or not the customs and traditions of the Luo are acceptable to the plaintiff. Rather, the issue is whether or not the deceased was subject to them. It is immaterial what the plaintiff thinks about them if they do satisfy the test in Section 3(2) of the Judicature Act. The Luo intention for the custom was to unify the people in a family.
There was serious evidence presented to show that the deceased wished to be buried in his ancestral home: first the deceased was No 18 in a clan association whose aims and objectives have been and still are to help in the transportation and organisation of funerals of members of the Umira Kager clan; second is the testimony of Albert Onyango, a mason and cousin to the deceased, that he (the deceased) had intimated to him that he wished to be buried next to or near his father’s grave…”
On the question of whether Luo customary Law was repugnant to justice and morality, the court found no law with which the customs were in conflict. This elicits questions of jurisprudence: What is justice and what is morality? What is their relativity to the repugnancy clause?
Section 82 of repealed constitution
Section 82 (1) provides that subject to subsections 4, 5 and 8, no law shall make any provision that is discriminatory either of itself or its effect; (4) subsection (1) shall not apply to any law so far as that law makes provision – (b) with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law (c) for the application in the case of members of a particular race or tribe of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons.
Counsel for the plaintiff’s argument was in support of equal rights for women and support for feministic causes. It was his view that by Luo customs, excluding women from decision-making forums as to where their deceased husbands would be married amounted to discrimination against sex, which offended the provisions of Section 82 of the repealed laws. The court’s assertion was that the argument fronted by counsel did not, on that score, avail the plaintiff.
This judgment was read in 1986. Women hardly had any rights then compared to present day. The Constitution then did not afford them any forum as seen from section 82. Reading subsection (4) with (1), Section 82(1) asserts that no law shall make provisions that are discriminatory in nature while (4) seemingly goes back on (1) and says that it may not apply to matters relating to personal law. By virtue of the claw back clause that was Section 82(4) – in case a personal (customary) law contained a custom that was discriminatory in nature, the custom would still suffice – is it therefore right to assert that Wambui Otieno’s case was a sealed deal from its inception regardless of circumstantial matters surrounding the case? It would seem that she was meant to lose the case by written law!
Article 2(4) of the Constitution (2010) reads that “any law, including customary law, which is inconsistent with this Constitution, is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid”. Article 27 on equality and freedom from discrimination reads: “(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law, (3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres, (4) The State shall not discriminate directly or indirectly against any person on any grounds, including sex, ethnic or social origin, belief, culture, religion… (5) A person shall not discriminate directly or indirectly against another on any of the grounds specified in Clause 4”.
Present day law
By virtue of Article 27 on non-discrimination on whatever basis, were this case to be heard today, Wambui would have a stronger case as she would have the support of the Constitution. Provisions of Article 27, coupled with those of Article 44 and Article 2 would render the Luo customary law on burial repugnant to justice and morality. Reference to Luo customary law here does not relate to burial of deceased persons at their ancestral home; rather, it is to the fact that the wife of the deceased and any other person would have no say, and the decision of the Umira Kager Clan was final.
Article 44 reads that (1) every person has the right to use the language and to participate in the cultural life, of the person’s choice; and (2) A person shall not compel another to perform, observe or undergo any cultural practice or rite. It can be deduced from the decision of the Court that customary law, which was the law of choice, was given much weight against any other practice such as Westernisation and Christianity. Wambui Otieno’s assertions of what her deceased husband practiced before his demise were not duly regarded.
The attitude of customary law, since time immemorial, has always been oppressive and discriminatory to the woman. In “Wambugi w/o Gatimu v Stephen Nyaga Kimani”, a discriminatory custom that operated to bar women from inheriting land was found not to be repugnant to ordinary notions of justice. Indeed, the custom was held to be a salutary one as it ensured that the land remained in the family.
In “Mbinga v Mbinga” (2006), Lady Justice Joyce Khaminwa appealed to the principles of non-discrimination enshrined in international treaties to which Kenya is signatory, namely the Universal Declaration of Human Rights (UDHR) and Convention on the elimination of all forms of discrimination against women (CEDAW), to override a customary law that allowed discrimination against married daughters in inheritance matters. She noted that the custom of disinheriting daughters went against the current jurisprudence in international law, which was making a concerted effort to ensure that there is no discrimination on grounds of gender.
If the S.M. Otieno case were to be re-opened under current laws, would the verdict be different? Which attitude should courts adopt? A cultural relativist one where customary law overrides written law? A universalism one where written and modern law is expressly relied upon? Or adoption of a reductionist principle where a balance is established for both written and customary law to co-exist, without one having precedence over the other?