• Cases of extrajudicial and mysterious killings are rife in the Coast but go unpunished
• The Quran requires one to be buried within 24 hours and no cuts to be made on body
Juma* (not his real name) was only 14 years old when he was beaten to death by a man they called “neighbour”.
His fault? Picking a mango from the neighbour’s compound without seeking permission.
But because of custom, the death of the young boy will go unpunished and just like that, he will be history, with only his family remembering him for years to come.
The incident took place on August 26 in Kisauni, Mombasa county. The boy came home crying he had been beaten and his mother Mariam* thought the punishment was a normal one and there was no cause for alarm.
“With the notion that a child belongs to the society, I did not bother to ask further," she said.
Mariam cautioned her son against picking things that do not belong to him.
A few days later, Juma started ailing and his mother gave him painkillers. However, his situation got worse when he started having fevers and convulsing.
They rushed him to hospital, where after a short triage, the doctor concluded that the boy’s condition was serious and directed them to rush him to Coast General Hospital for further treatment.
“By the time we got to the CGH, it was too late. He was breathing heavily and it was evident that he was not going to make it," she said.
“I saw my boy take his last breath. I held him in my hands as he tried to say something, maybe to bid me goodbye.”
Doctors concluded that the boy might have been hit on his head, which caused head trauma that resulted in his death. They urged the family to conduct a post-mortem to ascertain the cause of death.
However, Juma was hurriedly laid to rest in accordance with Islamic rites, which require one to be buried within 24 hours.
This did not give room for a post-mortem to be conducted on the boy’s body to establish cause of death.
The authorities, civil society groups and neighbours tried to convince the family to allow for an autopsy.
This split the family into two, with the mother’s side demanding the post-mortem, while the father’s side totally rejected it.
“My husband said we should leave the punishment to God and that we should not pursue justice. But for me, I would have loved to see the perpetrator punished,” she said.
My husband said we should leave the punishment to God and that we should not pursue justice. But for me, I would have loved to see the perpetrator punishedMother of assault victim
Failure to conduct a post-mortem is one of the reasons why killings of Muslim faithfuls go unpunished.
Islam discourages interfering with bodies of the dead. Deaths like that of Juma, however, show the perils of not having an autopsy and raise the question of whether a change of attitude is needed in the interest of justice.
Early this year, the bodies of four men who went missing from their homes in Kwale were discovered at Makindu morgue. Juma Sarai, Khalfan Linuku, Abdalla Gatana and Usama Nassir were all aged between 24 and 35 years.
The men were said to have been taken away by unknown people, with one of them reportedly picked from his house by people who produced police IDs.
Their bodies later found at Makindi Subcounty Hospital mortuary by family members and officials of Haki Africa and Human Development Agenda lobby groups.
The bodies, which are said to have been dumped at Tsavo Park, were badly mutilated and had physical marks indicating torture.
Despite the glaring physical evidence, however, families of the four rejected post-mortems. Therefore, no one has been held culpable, despite suspicions that police might have been involved in the killings.
In 2016, a court declared that radical cleric Aboud Rogo had been murdered. But the police had no way of confirming who exactly killed him as there was no post-mortem conducted, so no bullets removed from his body.
Naila Abdalla, executive director of Kisauni Sisters for Justice, says it is sad that Juma's family was reluctant to seek justice for the death of their son, citing the Quran.
“It is painful when people are killed but the killers cannot be prosecuted since there is no evidence,” she said.
Abdalla said the lack of a post-mortem has been a hindrance to the resolution of extrajudicial killings, mob justice killings and even killings by unknown people.
The executive director said a post-mortem is highly considered as “disturbing the dead” and the holy book directs that the dead should be left to rest in peace.
She said even though the Quran prohibits making cuts on a dead body, such as post-mortem, the same gives exceptions when it comes to emergency situations which Quran terms as “Mindharura’.
When you cut open the body of a deceased, they feel everything and they are not happy. They were called by Allah and they need to go to Him in full, just as they were created in fullSheikh Juma Ngao
CUSTOMS VS COURTS
Sheikh Juma Ngao, the Kenya Muslim National Advisory Council chairman, said post-mortems are perceived as disturbing the deceased.
Ngao said a post-mortem is not allowed in Islam, except in cases of emergencies or when investigations are involved.
They believe a dead person always hears everything that happens to them.
“So when you cut open their body, they feel everything and they are not happy. They were called by Allah and they need to go to Him in full, just as they were created in full,” Ngao said.
“Families are at liberty to allow or reject post-mortems. You cannot force them to accept. If they refuse, it is their right.”
He said in cases of legal investigations, an autopsy is allowed but only with the family's permission.
Mombasa advocate of the High Court Yusuf Abubakar said a post-mortem is a key component in establishing a case against a suspect.
He explained that its findings form the basis of a case and it is very crucial since it will be produced in court as evidence.
“A post-mortem report will tell the court how the deceased was killed. In cases of extrajudicial killings, they might remove a bullet and they can pin it to the gun it was fired from, thus identifying who exactly had that particular gun during the incident,” he said.
He said an autopsy will also reveal the extent of torture a deceased underwent before his death or whether he was hit and with what type of object.
Lack of such a report leaves the investigations with loopholes, such that the case cannot be taken to court as it will be thrown out in the first instance.
HARAM OR NOT?
The most affected cases are extrajudicial killings suspected to have been carried out by the police.
As a human rights lawyer, Abubakar said it is disheartening when families fail to get justice and culprits walk scot-free just because the family did not allow for an autopsy.
He said it is time for scholars to define the emergencies highlighted in the holy book and circumstances that qualify to be emergencies.
“Religious leaders should use all the avenues they have to teach the masses about the importance of a post-mortem. It is against our books but it is a crucial exercise,”Abubakar said.
DPP Noordin Haji has previously expressed fears of extrajudicial killings going unpunished due to lack of this crucial element.
“It makes it very difficult for us to investigate and bring culprits to book,” he said.
The DPP urged Muslim scholars to help demystify the issue of post-mortems.
“Religious leaders need to help us clear the confusion. Is it haram?” Hajj said.