“Everyone has the right to a reasonable standard of sanitation, including the ability to dispose of the bodies of the dead with decency.”
Have you ever seen this constitutional provision? Probably not.
CONSTITUTION MAKING
When, in 2002, the Constitution of Kenya Review Commission was holding hearings so that Kenyans could tell it what they thought should be in a new Constitution, the very first hearing held was of children – from the Children’s Parliament.
But the second was in Korogocho. The commission heard many harrowing stories about life in the informal settlements, and how Kenyans hoped that a new constitution would bring a new era, and how they felt it might help them.
Among those stories were two dealing with death. One was about a man who tried to take the body of (I think) his son from Nairobi back to his rural home. He could not afford any more dignified and appropriate way, so he tried to take it in a matatu.
The other was that one night, people heard a strange noise. When they went to investigate they found a man from the community trying to dig a hole down by the river. His son had died, and he had absolutely no way of paying for his burial, so he was trying to bury him there.
The commission wanted Kenya’s new Constitution to respond to the realities and the visions of Kenyans. So they included in the draft that was published in September that year the Article quoted at the beginning of this piece.
The Bomas National Constitutional Conference decided — quite rightly — that it was not right to include this as part of the right to decent sanitation. The real issue for people was not sanitation but respect for the dead and the humiliation of not being able to show such respect, because of poverty.
In its final report the CKRC said, “Evidence also made clear the prohibitive costs of burying the dead for many people — surely an aspect of human dignity. These rights were among the most forcefully demanded by ordinary people.”
The revised version was: “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.
It reappeared in the first draft constitution of the Committee of Experts in 2009 (they just added “or cremation”). But it disappeared in their second draft. Maybe this was a feeling (which the CoE did have) that the Constitution should not be too long, or perhaps a concern this was a very new idea.
Or maybe they were influenced by the comments of a distinguished lawyer, whom I will not name here, who could not understand the point and thought that such a provision in the constitution would “only promote necromancy and necrophilia”.
For those of you who have not swallowed dictionaries, necromancy means communicating with the dead to foretell the future, while necrophilia means love of the dead or more specifically sexual attraction towards the dead.
Exactly how that writer thought these would be encouraged is not clear.
The law always has problems dealing with the dead. Once you are dead, you have no rights. Though your claims and liabilities about property survive your death, and pass to your heirs, claims of a more personal nature, like damage to reputation, do not. And no one owns a dead body. The CoE constitution draft would have recognised rights of the living about treatment of the dead but not conferred any rights on the dead themselves.
RESPECT FOR THE DEAD — AND THE LIVING — NOW
I was reminded of this constitution making story by two newspaper articles. One in the Nation described how people who have died may be kept in a mortuary for a long time, without their families being aware. And, when they do become aware, they may be unable to pay the mortuary fees to get their family member’s body released for burial.
The other was in the Standard, and described how many bodies remain “unknown” in mortuaries and eventually will be buried in mass graves.
I have heard of a case where the police took a body to the mortuary, knowing exactly who the person was, including name and ID number. Yet when his close relative came to the mortuary a little later they found that the body had been marked “unknown” and dumped (there is no other word for it) in a random and undignified way with other bodies brought in around the same time.
Stories abound of public officials’ and bodies’ disrespect for the dead and their living and grieving relatives.
In 2014, a researcher for the Kenya Law Reform Commission pointed out that there are many legal disputes about treatment of the dead, especially place of burial.
He commented that the Constitution did change things, especially with its respect for customary law and its insistence on equality of the sexes, including in marriage. And there had even then been some changes in the law in the courts because of the Constitution.
However, he did suggest that there should be new law made by Parliament to clarify what should happen and what are the rights involved. This has not happened, and might not be easy to achieve in view of the variety of approaches to dealing with the dead.
And, despite the absence of any specific constitutional provisions, courts have sometimes been able to give some sort of remedy. So, in the Covid pandemic, a court ordered compensation for a man who intentionally broke Covid rules about travel while taking his wife home for burial.
He was dumped (this time the judge’s word) beside the road with his wife’s coffin for hours in the rain. He was awarded compensation for breach of various provisions of the Constitution, including the right to dignity. The main issue was treatment of him, not of the wife.
In another case, a man had died — probably from Covid. He had been “hurriedly interred in a shallow grave in plastic bags without a coffin and at 3am, without any cultural or religious rights or involvement of his close family members.”
His family had not asked for compensation — they wanted an autopsy and a proper reburial. The judge clearly felt that things had been done wrongly, but felt unable to do what the family wanted — especially because of the risk of infection.
Courts have several times held that it is unconstitutional to refuse to release the body of a patient for non-payment of fees.
LACK OF RESPECT
Going to court may not always be the best way of dealing with such issues. My main concern is with the failures of respect we see from public officials towards the feelings of the living.
This is by no means limited to situations concerning the dead. We see constantly the cavalier treatment of citizens and their feelings and their convenience. If the Nation’s reporters could find some relatives of corpses in the mortuary, why could not there be some scheme under which the police or the mortuary staff could do the same?
With the system now called National Government Coordination (Provincial Administration, it used to be called) with officials locally right down to the village headman and assistant, it should be possible to make a reasonable attempt.
And though the state cannot finance extravagant funerals, can we not do more to ensure that there is an affordable, decent and respectful way to deal with the dead, including finally tackling the issue of a replacement for the Langata Cemetery in Nairobi?
It may be that a provision in the Constitution might help to focus official minds. But arguably the idea of respect for fellow citizens lies at the Constitution’s core, not just in Article 28 on respect for inherent dignity. Lack of respect for the dead and their living relatives simply brings the issues out particularly poignantly.
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