Tribal Rites, Western Ways Clash in Kenya Burial Case

NAIROBI, Kenya — Silvano M. Otieno, Kenya’s pre-eminent criminal lawyer, fell ill at his home one afternoon last December and by nightfall he was dead, at the age of 55, of heart failure.

Mourners awaiting word of the funeral services tuned in the Voice of Kenya the next day and learned that two separate burials had been planned--at different times, in different places.

That was the first sign of trouble.

It turned out that Otieno’s widow, a member of the Kikuyu tribe, planned to bury him on their farm near the Ngong hills just outside Nairobi. Not to do so, she said, would go against her husband’s wishes.

But the lawyer’s brother and 400 members of his Luo tribe had met and decided to bury him 150 miles west of Nairobi, next to his father’s grave on the land of their tribal ancestors. Not to do so, they said, would violate tribal law and arouse ghosts and evil spirits that would haunt the tribe and curse it with birth defects and other misfortune.

Body in City Mortuary

Otieno’s body lay in the city mortuary for weeks while the two sides squabbled and then gathered in High Court Room No. 2, where an African judge, under the ceremonial white wig inherited from the English justice system, weighed tribal custom against modern law.

But the case turned out to be less a matter of law than a question of African culture versus inherited British culture, of tribal rules governing women versus Western notions of women’s rights, and of Kenya’s dominant tribe, the Kikuyu, versus its second-largest, the Luo.

The Otieno case has turned a spotlight on the continuing clash between the old and the new in black-ruled Africa. As modern ways naturally overtake traditions, and government leaders encourage national allegiance over tribal ties, the old customs might seem to be doomed. But they are not. They remain a major force in Africa, strong enough to put up a good fight in the modern battlefield of a courtroom.

Sign of Enduring Customs

“These are just signs that the customs of Africans will not fade away easily,” says Henry Odera Oruka, an expert on Luo tradition at the University of Nairobi and member of the Kenya National Academy of Sciences. “Customs are going to get into all sorts of areas in the legal system.”

At least half a dozen burials over the past year in Kenya have been delayed for weeks by court fights over such issues as whether custom or law governs polygamous and intertribal marriages.

For weeks, the Otieno case bounced back and forth between judges, with all three of the country’s daily newspapers trumpeting the developments on their front pages. It culminated in a three-week trial before High Court Justice S.E.O. Bosire, who ruled two weeks ago that Otieno should be buried on Luo land.

The verdict touched off a Luo celebration in the streets of Nairobi, and the word spread quickly.

“Otieno is going home,” said Dominic Okuru, a member of the Luo tribe.

Appeal Scheduled March 27

But the case is not over yet. Otieno’s body will not be buried at least until his widow’s appeal is heard March 27--more than three months after his death.

Members of tribes in Africa share customs, language, a homeland and a feeling of unity. In the United States, by contrast, “you only know yourself, your family and your apartment,” Prof. Oruka said. “But here we are attached to an entire district. There’s great comfort in that.”

In some cases, tribal allegiances have hampered the growth of democracies. Tribes that have feuded for centuries are slow to join hands, and government leaders have often felt obligated to improve the standing of their own tribe, even at the expense of the nation.

Many of Africa’s tribes, among them the Luos, have adopted more modern ways in recent years. Tribal chiefs today, for example, often resemble small-town mayors, with offices, secretaries and demanding constituents.

Tribe Part of Identity

Even in the cities, a Kenyan’s tribe remains a part of his identity. Among the strangers he passes on the street, he can identify fellow members of his tribe. Tribesmen who rise to prominence in the city are frequently reminded of their roots even if they have stopped following the customs.

Such was the case with Silvano Otieno. From humble beginnings he became part of Nairobi’s elite cadre of highly educated, urbane Africans. He was born in the Luo tribe’s Umira Kager clan of rural western Kenya, left to study law in Bombay, India, in the 1950s and returned to Nairobi to set up a practice specializing in criminal defense.

In 1963, he married Virginia Wambui, a Kikuyu and member of one of the country’s most prominent families. A strong-willed woman, she had spent three years in jail in the 1950s for taking part in the Mau Mau uprising that led to Kenya’s independence.

Otieno favored pin-striped suits and read George Bernard Shaw and Shakespeare, although he admitted to a weakness for Perry Mason mysteries. He sent his nine children to the best schools; four of them are now studying at American universities.

Lauded by President

When Otieno died on Dec. 20, President Daniel Arap Moi lauded him as a shining example for his country.

His widow’s burial preparations were interrupted when Joash Ougu, Otieno’s only living brother, and Omolo Siranga, the Nairobi spokesman for the Luo tribe, announced that the lawyer would be buried in Luoland.

Otieno left no will, so his widow turned for help to the law of the land, inherited from the British colonizers. Kenyan law gives preference to the widow on questions of inheritance, but it is silent on the question of burial. In Kenya, African customs are considered valid in court if they do not directly conflict with modern law and are not “repugnant to justice or morality.”

Tribal custom places great importance on the burial site and ceremony. Burial in a public cemetery, for example, is considered abhorrent, and such cemeteries are used primarily for unclaimed bodies.

Spectators Line Up

Spectators stood in line for hours to squeeze onto benches in the balcony of the courtroom and watch the action below: two diminutive attorneys in flowing black robes and formal white ties, bowing and addressing the judge as “my lord,” quoting from classical literature and bluntly accusing witnesses of lying.

It was the stage on which Otieno himself had loved to perform.

The widow, a stocky woman who favors long, dark dresses and matching scarfs, argued that her husband had long ago ceased to follow Luo customs. As evidence, she pointed out that they were married in a modern ceremony and no bride-price was paid. (A dowry is required in most traditional African marriages.)

The Otieno children were raised as Christians, and Otieno made no effort to teach them the Luo language or customs. In 25 years he had visited his Luo homeland only to attend the funerals of family members.

The widow and others testified that on several occasions in the past year Otieno had said he wanted to be buried either at his house in town or at his farm outside Nairobi. It was testimony that Justice Bosire later chose not to believe.

Son Slurred Tribe Members

One of Otieno’s sons, Jairus Michael Otieno, a student at William Paterson College in New Jersey, damaged his mother’s case when he said the people from his father’s homeland were “lazy, primitive and uncivilized.” Refusing to abide by tribal custom is one thing; criticizing them is quite another. Justice Bosire later called the youth arrogant and his testimony “disgusting.”

While Otieno may not have shared his son’s distaste for Luo custom, he had “elevated himself beyond tribal and clan prejudices” during a lifetime in Nairobi, John Khaminwa, the widow’s attorney, argued.

A widow in this day and age should have the legal and moral right to bury her husband, Khaminwa said, adding that “to cling to tribal customs and bury the late Otieno in Luo country would be contrary to progressive ideas in this year of our grace 1987.”

The Luo attorney, Richard Kwach, countered that being a sophisticated person “doesn’t mean we have lost our roots.” In Luo tradition, he added, “men always return to their homes, dead or alive.”

The Luos argued that because Otieno died without a will, the surviving head of his father’s family and his clan had the right, by custom, to decide where he should be buried. They chose Otieno’s boyhood home because it was the only home he had under Luo customs.

To establish a home away from his father’s home, in Luo tradition, a man must bring his father and one of his sons to the plot of land he has chosen and set a rooster loose there. If the rooster is still there the next morning, and still alive, the man knows it is safe to build his home there and he builds a fire to sanctify the spot.

Otieno and his wife had built several houses in and near Nairobi, but none was recognized as a home by the Luos. If a Luo is not returned home for burial, the tribe believes his spirit will never rest and will haunt the family and the tribe.

Fears Ghosts, Tribe’s Scorn

Otieno’s brother, a bespectacled man in a dark wool suit and black wing-tip shoes, testified that “wherever I go, there will be ghosts haunting me for allowing my brother to be buried elsewhere; wherever I go, my clanspeople will spit at me.”

When proper burial rites are not performed, Luo witnesses testified, the spirits of the dead person will retaliate in many ways, such as causing babies in the tribe to be born without legs.

Otieno’s widow argued that Luo custom discriminates against women by denying them the right to choose a burial site, even for their own husbands.

“She is not relevant; she is a wife, a woman,” Omolo Siranga, the Umira Kager spokesman, testified. Although born a Kikuyu, she agreed to abide by Luo custom when she married a Luo, he said.

Whether or not the widow and her children respect Luo custom, the Luo attorney argued, custom must be enforced as long as it does not conflict with modern law or violate accepted standards of morality. Christianity, he added, was not inconsistent with Luo tradition.

Kikuyus Dominate in Kenya

In Kenya, the 5 million Kikuyus, about a fourth of the population, have traditionally dominated the government, the financial community and even church organizations. Many of the 3 million Luos have resented the subordinate role they have been forced to play in the country’s affairs.

The first judge to rule in the Otieno case, J. F. Shields, agreed with the widow that Otieno had been “a metropolitan and a cosmopolitan, and though he undoubtedly honored the traditions of his ancestors, it is hard to envisage such a person as subject to the customs of a rural community.”

But Shields’ decision was struck down on appeal, and Justice Bosire, after hearing evidence for three weeks in the case, came down on the other side. He ruled that Luo custom did not conflict with Kenya law in matters of burial and that Otieno was subject to custom because he had never renounced his tribe or its practices.

Change ‘Must Be Gradual’

Many in Africa believe that tribal customs are bound to lose out eventually to modern ways. As Bosire put it: “Times will come and are soon coming when Luo customs for burial will be abandoned. It is an undeniable fact . . . that change is inevitable. But it must be gradual.”

Kenya’s National Assembly has begun discussing changes in the law to give more rights to spouses in burial disputes. Unless that happens, Otieno’s widow said, her case will be a precedent “that will cause a lot of problems for the judiciary and the women and men of this country for a long time to come.”

As for her own future, she said: “I know and believe that God will get my revenge. Now I’m going back to Kikuyuland.”