• Media reported about a person who tried to carry a body home in a matatu for burial.
• This realisation that people were unable even to give basic respect to the dead led the CKRC to include in the very first draft of a constitution
Image: ANDREW KASUKU
The Constitution of Kenya Review Commission heard from one person, in - we think - Korogocho, about another who had been found in the dead of night digging a hole near a river.
Asked why, he explained that his child had died, and he had no money to pay for a funeral. He was thus digging to secretly bury the child’s body. At about the same time media reported about a person who tried to carry a body home in a matatu for burial.
This realisation that people were unable even to give basic respect to the dead led the CKRC to include in the very first draft of a constitution: “Everyone has the right to a reasonable standard of sanitation, including the ability to dispose of the bodies of the dead with decency”.
Later, a drafter suggested that including this under “sanitation” did not seem right, and the issue appeared in the Bomas draft in the Article about dignity as
“The inherent dignity of every person –
(a) includes the right to dispose of the remains of deceased persons in a dignified manner; and
(b) extends to their remains after burial.”
This survived into the first Committee of Experts draft, but then disappeared, as the CoE felt some need to shorten the draft, and perhaps to remove some less orthodox provisions.
RESPECT FOR THE DEAD IN VOI
We were reminded of this last weekend when we attended the launch of the Voi Community Social Justice Centre. This is the twenty-ninth social justice centre around the country. Each tends to focus on local issues. Around Voi these ISSUES include a high rate of female genital mutilation, a dire shortage of land, human-wildlife conflict – and a dubious reputation as a dumping ground for dead bodies.
The story goes (based on a revelation by someone who narrowly avoided the fate) that when those (usually well-connected politically) with a score to settle hire hitmen in that part of the country, the murderers tend to take their victim to a remote and neglected corner of a nearby national park, and invite the victim to choose between being shot and left to the lions, and being tied up – and left to the lions. Apparently, when someone disappears in Mombasa (as happens only too often) civil society commonly looks in Voi for the body.
When found (not necessarily intact) the bodies are taken to the mortuary at the referral hospital in Voi. We — with a group of others involved in the launch event — visited the morgue. We learned that, though much less neglected than it used to be, it lacks some important equipment for post-mortems and preservation.
Indeed, people have suggested that it rather suits some in authority for mortuaries not to be well equipped – they are thus less able to produce evidence needed to get convictions for the horrendous crimes that have resulted in the bodies being in the mortuary at all.
And the police will capitalise on the Muslim wish to bury a body within 24 hours, to comply with the Shari’a, to ensure that victims are released for burial quickly to be buried along with the incriminating facts that a post-mortem might have revealed.
Sadly, the staff at the mortuary commented that some families are unable to afford the Sh1,000 or so needed for a shroud to bury their loved one according to Muslim rites. And the mortuary likes to stock some shrouds to meet this need but does not have the funds.
ARE THERE RIGHTS AFFECTING THE DEAD?
Maybe you can see why the idea of a “right to dispose of the remains of deceased persons in a dignified manner” appealed to Bomas. We are not talking here about the sort of fancy funerals that put many Kenyans into debt, with feasts for large members of mourners, many of whom have no reason to mourn, and even with professional mourners hired.
We are talking of the ability of families who have lost someone dear to them to bury them in peace. And we are not, of course, concerned only with the victims of “extra-judicial killings”. Think of the body of a woman who completely unnecessarily dies in child-birth (Taita Taveta is among the 10 counties with the highest maternal mortality rates). Or of the baby on whom FGM had been performed in an effort to conceal the practice. More immediate is the breach of the right to health, and of freedom from violence from any source (or the failure to protect the child from harmful cultural practices). We should not even be talking about the issue of treatment of the body after death.
An express right may no longer be in the Constitution, but Article 28 on human dignity is. No doubt dignity of close relations is affected by the inability to give a body a decent burial.
We have not yet resolved the question of whether it is unconstitutional for a hospital to detain the body to extract fees from the relatives. Court decisions are rather inconsistent. We badly need a decision that addresses the dilemmas – of the injustice of holding the dead, or the living, as against the problem of getting the living to pay debts to hospitals that are struggling, as universal health coverage remains a dream in most counties. Ideally, we need such a decision from the Court of Appeal – and the High Court must apply it.
NO RESPECT FOR THE LIVING OR THE DEAD
What we are really facing is a lack of respect for the living or the dead. Yash Ghai, as was publicised on Twitter, was reduced to tears by the story about the feeding of fellow citizens to the lions. “How can people do this?” he asked.
Indeed, how can it be that the police are prepared to kill individuals instead of arresting them? That was what Haki Africa executive director Hussein Khalid, wondered in conversation afterwards.
How can it be that in Mathare, Kibra and many other places, young men, especially, are shot – charged, tried, convicted, sentenced and executed by the police in an instant? How can it be that in Mombasa, more young men are clearly arrested by the police and just disappear, and others abducted, for their mutilated remains to turn up, perhaps, in a place of beauty but a place of horror?
SOCIAL JUSTICE
The Constitution uses this expression three times: In the Preamble, in Article 10 on national values and in Article 19, which explains that “The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.”
Social justice has been defined as “The objective of creating a fair and equal society in which each individual matters, their rights are recognised and protected, and decisions are made in ways that are fair and honest.”
People, often the young, have been coming together in Social Justice Centres, channelling people’s disappointment, indeed anger, not into rebellion, but into peaceful protest, reasoned insistence on compliance with the Constitution and respect for rights, and even into cooperation with the authorities, including the police and the Office of the Director of Public Prosecutions. They are educating the people about the Constitution and inspiring the young to believe that the promise of the Constitution can be realised.
A fair and equal society is one in which the scourge of poverty does not prevent people giving decent treatment to their dead, and in which the powerful do not feel justified and protected in killing opponents, or suspects. One in which health care is effective and available. One in which staff in mortuaries, doing work for us, have the tools they need.
The animals are innocent, Dr Steve Ouma reminded us, but “man’s inhumanity to man”, in the words of the poet Robert Burns, is a different matter.