When the husband dies

Surviving wives in Africa

Burial regime in many African countries is group-based in contradistinction to the rights-based approach of most western legal systems. In most systems of customary law in Africa, no individual can claim the sole right to determine the time, place and manner of burial of a deceased family member. Burial is a family affair. The duty of burial belongs to the family as a whole. The head of a family has the responsibility of coordinating and managing the funeral arrangements for the burial of a deceased member. In some respects, the head of a family is like a trustee; he exercises the right of burial for the benefit of every family member. Since a woman cannot become the head of a family in many African countries, she is logically excluded from controlling the disposition of her husband’s remains.

Accordingly, where a woman’s husband dies, the right of burial does not belong to her, but to the family of her deceased husband. In that case, the head of family may be a father, brother or uncle of the deceased.

The surviving wife is obliged to acquiesce in the family’s decision regarding burial. Her position is even more tenuous in some customary law systems where the surviving wife could be inherited by one of her husband’s relatives.

It is at once obvious that the African group-based approach to sepulchral rights is problematical. It conflicts with notions of equality in constitutional democracies, as well as conflicting inexorably with the frameworks of most human rights instruments which reflect the rights-based possessive individualism of western civilization. Moreover, the familial approach in Africa has its roots in customary law whose patriarchal origins naturally render it less receptive to women’s rights.

Sepulchral priority under customary is open to abuse. It might provide an opportunity for disgruntled in-laws to “settle scores” with a widow.

A Kenyan Court of Appeal case brings these difficulties (under customary law) into bold relief. In Otieno v Ougo (1982-87) 1 KAR 1049, the claimant widow was a high profile politician in Kenya while her deceased husband was a famous criminal lawyer. The husband died intestate and a dispute arose between the widow and her in-laws as to the place of interment. The widow wanted her husband to be buried in the city of Nairobi where both had lived and worked for many years. The deceased brothers and relatives wanted him to be buried in the village (ancestral home) in accordance with the customs of their people. The widow won at the trial court but the in-laws went to the Court of Appeal where the issue boiled down to which system of law was applicable, customary or English-type laws and legislation? The Kenyan Court of Appeal observed that it must be guided by customary law unless the application of customary law proved to be repugnant to justice and morality or inconsistent with a written law.

According to the Court of Appeal, the main reason the received English common law was not applicable was because its application was subject to the limits of local circumstances under section 3 of the Judicature Act, cap 8.

Since there was a clear customary law relating to burial in Kenya, the Court of Appeal argued, “the common law will not fit the circumstances of Kenya”.

Even if the common law were applicable, the Court of Appeal further observed, the husband’s executor rather than the claimant widow would be entitled to the right arising from the duty of burial. Since the deceased (husband) died intestate the claimant widow could not claim to be an executor (as there was no will appointing her an executrix); and her application for letters of administration having not been determined as at the time of the judgment of the Court of Appeal, she could not claim as an administratrix.

The Court of Appeal surmised that her application would invariably have failed even if customary law were not applicable. Under the applicable Luo customary law, burial is invariably in the village unless the deceased, during his life time, performed a particular customary ceremony which demonstrated his intention to be buried in a place other than his ancestral home (the ceremony was not performed in Otieno’s case). On the argument that the deceased’s western life-style, profession, sophistication and urbanisation took him out of the regulation of customary mortuary law, the Court of Appeal observed:

“At present there is no way in which an African citizen of Kenya can divest himself of the association with the tribe of his father if those customs are patrilineal. It is thus clear that Mr Otieno having been born and bred a Luo remained a member of the Luo tribe and subject to the customary law of the Luo people. The Luos are patrilineal people.”

Accordingly, the Court of Appeal dismissed the widow’s case and allowed her husband’s relatives to bury him according to their customs and tradition. The case is often thought to be a sign of victory for the resilience of customary law, but it rather signals a progressive trend that will climax in the very near future: African women, especially the educated ones, are not likely to accept the regulation of a discriminatory system of customary law without question.

It should be said, however, that shorn of the exclusionary uses of the group-based approach to burial rights, the African mortuary priority system is superior to the rights-based approach in many western societies. Most family issues in Africa are based on negotiation and reconciliation; it is not a winner-takes-it-all approach characteristic of the possessive individualism of western democracies and their sepulchral regime. Under customary law, family cohesion is more important than the rights of individual members.

Provided the wishes of an African widow are respected and factored into the burial equation, the disposition of the remains of her husband is likely to have a familial character that satisfies every member of the family. It will also be consistent with the belief in Africa that the death of a relative is a loss to the entire family.

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This is an edited excerpt from a paper by Dr Remigius N Nwabueze entitled ‘Legal approaches to the burial rights of a surviving wife’.