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On April 12, 2020, James Oyugi became the eighth patient in Kenya to succumb to Covid-19 disease, according to the Ministry of Health (MoH).

But only his burial triggered widespread condemnation and anger, obviously because of the manner he got interred.

Mortuary workers covered in white ghoulish hazmat suits tossed the body of the 59-year-old into a shallow grave at 3 am in Siaya. A viral video showed no mourners, but some women could be heard wailing. The departed was a former Kenya Ports Authority (KPA) worker.

A day later, Health Minister Mutahi Kagwe, in his daily press briefings, said the burial was conducted “in a manner that protects the living”.

But March 13, 2020, burial guidelines by MoH indicate that the victim’s family should be informed of the burial and allowed to mourn.

MoH made these procedures for the burial of a Covid-19 victim:

  1. The arrival of the body disposal team.
  2. The staff should not be wearing Personal Protective Equipment (PPE) upon arrival.
  3. Greet the family and offer your condolences before unloading the necessary material from the vehicles.
  4. Request respectfully for a family representative.
  5. The communicator should liaise with the family representative for the final rite.

MoH said such burial should be between 9 am – 4 pm, and not 3 am, as was in Oyugi’s case.

Kagwe noted the public outcry and remarked: “The matter has been brought to our attention and is being addressed; it will be resolved in line with public health and sensitivity to the dead.”

Did he succumb to Covid-19?

The deceased’s family has since sued to exhume the body. They are doubting whether their kin died of coronavirus. The family says health workers in Siaya violated the Constitution, cultural requirements, and the World Health Organization (WHO) guidelines on the safe management of a dead body in the context of Covid-19 — if a postmortem confirms that Oyugi died of the disease.

The conduct of the health officials who buried Oyugi is now under investigation. Siaya Governor Cornel Rasanga said, “I swear that it (Oyugi-like burial) will not happen again under my watch here in this county.” Rasanga formed a committee to probe the matter and he expects the report to reveal who allowed it to be carried out in that manner.

Human dignity

Article 28 of the Constitution states: “Every person has inherent dignity and the right to have that dignity respected and protected”. This right is not stripped off in death, irrespective of its cause. Therefore, Captain Daudi Kimuyu Kibati, a former Kenya Airways pilot and the fourth coronavirus victim in Kenya, was respectably laid to rest by his family (may his soul rest in peace). His body was picked from Lee Funeral Home early in the morning (on April 4, 2020) in a colourful ceremony staged by fellow pilots in full uniform, the Standard newspaper reported.

“And as of last respects to their fallen colleague, described by many as courageous and dedicated, the pilots escorted the body in a motorcade up to the Machakos turn-off along Nairobi-Mombasa highway before turning back to Nairobi,” the newspaper explained.

The Standard added: “Following the government’s directive to minimize crowds in the wake of the virus, Kibati’s funeral was low key at his Kavisuni village home in Kitui Rural Constituency, attended only by a few close family members.”

Traumatizing protocols

But such last respect, which conforms to Article 28 of the Constitution, and WHO guidelines on the safe management of a Covid-19 victim, was missing in Siaya, where Oyugi was disrespectfully tossed to “rest”. The shock, anguish, and humiliation that this bizarre burial left bring into sharp focus considerations of dignity that cultural and religious traditions accord to the dead. A big debate has erupted on the place of families and their need to know the cause of death, as well as dispose the bodies of their loved ones per their traditions – and safely to avoid Covid-19 infections.

Even though this pandemic is disastrous, nothing in law or culture justifies traumatizing protocols that leave the deceased’s family and colleagues with a stigma that can only undermine the fight against the deadly virus. Kagwe warns there will be limited engagement with cultural traditions, and understandably so, his team should ensure a respectful interment.

Burials among the Luo community accord to one’s deeds, sex, occupation, religion, age, marital and social status, as well as the circumstances surrounding the death and the attitudes the deceased held towards burial rituals in their lifetime. Oyugi’s age and social status ruled out the kind of treatment the junior health officers and police accorded his remains. Throwing his body into a shallow grave without a coffin was heartless.

Article 28 of the Constitution states: “Every person has inherent dignity and the right to have that dignity respected and protected”. This right is not stripped off in death, irrespective of its cause.

Dr Steve Ouma Akoth, an anthropologist from Malaika Foundation in Ugenya, observes that for a man of Oyugi’s status, it is expected that his death is announced through loud wailing by women. Close relatives congregate in his homestead for “arita” – a vigil held by mourners until the body is brought to the deceased’s compound (if death occurred outside his homestead). Relatives and friends will mourn until the day of the burial. A gravesite, depending on the deceased’s sex and marital status, is decided, and dug at night through to the wee hours of the morning. Then burial occurs.

But history shows such traditions have been altered before, depending on the circumstance surrounding the death. When kin died by drowning or from “dhoho”, a contagious disease, the burial happened differently, with most rituals shelved. During such unique circumstances, burials were reorganized to avoid contact with the body. Gatherings suffered a drastic cut. This happened in close consultation with the deceased family, provided they were fully informed of the situations leading to the death and of the formal processes to be followed.

The Covid-19 situation is not different; the community can readjust the customs and traditions and ensure there is no physical contact with the departed, and utmost 15 mourners adhere to social distancing guidelines to curb Covid-19 spread.

WHO burial guidelines

The alterations are consistent with WHO guidelines on body disposal it released in March 2020, which advice against the hasty burial of Covid-19 victim. The guidelines emphasize important considerations, such as the dignity of the dead, and respect for their families. WHO advises authorities to balance the rights of the family, the need to investigate the cause of death, and the risk of coronavirus exposure.

There can only be one explanation for the behaviour of authorities in Siaya about Oyugi’s burial, which disregarded WHO guidelines. The County was ill-prepared for a Covid-19 death — if at all Oyugi succumbed to the disease. It panicked and chose to instil fear in a population it erroneously believed would be uncontrollable if asked to voluntarily revise their burial protocols.

There is a general assumption by officials that customary law is some unified and static body of rules that existed at a certain point in history. Customary law, which is constantly evolving and adapting to its environment, is observed and attested to orally. This law is open to negotiated content and versions within a given set of underlying values and realities such as Covid-19.

Luos, like most customary law communities, are ready to negotiate the rituals conducted during the burial, provided the government engages directly with living customary law, the very same way it engages with religious laws.

Patrick Ochieng’ is a scholar and a founding director at Ujamaa Center (@OchiengPatrick, nyaameme@gmail.com). Ernest Cornel is a journalist and MUHURI’s Communications, Monitoring, and Evaluation Officer (@oduorernest, e.cornel@muhuri.org)