Changing tide: Courts repealing traditional cultural practices

When the Supreme Court in February allowed gays and lesbians to form associations to champion their rights, there was an uproar that the decision was against cultural practices.

Majority judges, Philomena Mwilu, Smokin Wanjala, and Njoki Ndungu declared that denying lesbians, gays, bisexuals, transgenders, and the queers (LGBTQ) the opportunity to form associations was discriminatory and unconstitutional since it denied them a right to association.

The decision caused a storm from politicians, churches, religious leaders, and traditionalists who criticised it as ungodly, against the order of nature, and an erosion of Kenya's traditional practices which only recognises unions between males and females.

"The decision went against the culture of our communities and we demand that our traditions and values be respected. We cannot accept such evil behaviours which will lead to destruction of our cultures and heritage," said Kikuyu Council of Elders chairman Wachira Kiago.

The apex court decision is one of the emerging trends where the courts are repealing traditional cultural practices with declarations that they are outdated and against the spirit of the 2010 Constitution.

Section 3 (2) of the Judicature Act that provides that courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable.

However, the same provision states that such customary law must not be repugnant to justice and morality or inconsistent with any written law.

This is what has given a leeway to courts to overturn and repeal several cultural practices on account that they are inconsistent with the constitution and amounts to violation of human rights.

Burial rights

In many Kenyan communities' cultures, the burial of a loved one was revered as a sacred ceremony to give the departed soul a resting peace.

When the death was of a man, it was a communal affair as his clansmen took charge of the funeral preparations and decided where the man should be buried.

This was affirmed in the long held classical case of the late SM Otieno when the Court of Appeal held that his clam, the Umira Kagen Clan, had the right to bury him in accordance to the Luo traditional practices and declined his widow Wambui Otieno's wishes to bury him at their home in Ngong.

The decision has however been repealed with courts stating that it is the widow who has a right to decide where the husband is buried as opposed to the cultural practices.

Dr Radol's nephew John Omondi and cousin Charles Opondo wanted him buried at Alego, Siaya County as per the family wishes and Luo customary law while his widow Svetlana Radol wanted him cremated at Lang'ata Crematorium.

The family argued that Dr Radol wanted to be buried next to his mother at his ancestral home when he dies but widow insisted that the deceased's last wish was to be cremated.

The court ruled in favour of the widow stating that it is the surviving spouse who has the responsibility of deciding where to rest the departed spouse.

"It is important to note that culture is dynamic and not static. For example, the Luo people no longer bury naked bodies since they are nowadays dressed in the most expensive clothes and placed in equally expensive coffins before being interred," ruled Mabeya.

Among the Kamba community, it is the husband who determined where to bury his wife but this changed after High Court Judge Hedwig Ong'udi declared that the cultural practice is not binding especially where the man and woman had separated for some time.

In the case, the man identified as JMK argued that he married JNM under Kamba customary but separated for ten years before she passed on.

When the wife died, the man went to claim her body to bury her in accordance with Kamba customary laws but the woman's relatives refused to allow him leading to the court case.

Justice Ong'udi however dismissed his claims on account that having separated with the wife, he could not use cultural beliefs to reconcile with her in death and bury her.

"He did not make any effort to reconcile with the deceased when they separated. It therefore beats logic that he is putting up a spirited fight to bury her in the guise of traditional practices," ruled Ong'udi.

In most polygamous families, most cultural practices dictated that the man would be buried at the first wife's home when he dies.

This was the challenge that encountered Thika chief magistrate Stella Atambo when the two co-wives Margaret Waithira and Anne Njeri battled to have their deceased husband Christopher Mbote buried on their side of the homestead.

To satisfy both women, Atambo broke from the cultural practice and ordered that the man be buried on the boundary of the two farms where half of the grave would be on each side of the two homes.

Land ownership

In most communities' cultural practices, it was considered an automatic right for a man to inherit his father's land. However in the converse, it was considered a taboo for a married woman to claim and inherit her father's land.

This long held cultural practice has been overturned by courts on the basis that traditional cultures which make it a taboo for married women to return to their homes to claim their father's land is outdated and must not be used to discriminate against women.

The latest decision was made by Justice Anthony Mrima on May 17 when he ordered three brothers to divide their late father's 13-acre land equally with their two married sisters.

How cultural practices hinder the realisation of women's property rights

"I am in agreement that the time has now come for those discriminative cultural practices against women be buried in history. This is in line with Article 27 of the Constitution that prohibits discrimination of persons on the basis of their sex, marital status or social status," ruled Mrima.

In the case, Joyce Kimomwor sued her elder brother James Musa Tapoyo for disinheriting her from their father's land in West Pokot County.

The brother's defence was that he refused to give his sister a portion of the land in accordance with his late father's wishes and the Pokot's traditional practices that married women should not come back to claim a piece of their father's land.

Justice Mrima however stated that in seeking to disinherit the sister under the guise that she was married, the brothers were merely invoking old customary beliefs which are biased against women and tend to bar married daughters from inheriting their father's estate.

"The issue as to whether daughters of a deceased person, whether married or otherwise, are entitled to inheritance of the deceased estate is well settled. The law of succession does not discriminate female and male children, whether married or unmarried," ruled Mrima.

In another case, Peter Karumbi and his brothers sought to stop their sisters from inheriting their father's land on the basis that they were married.

The brothers argued that married daughters ought not to inherit their parent's property because it amounts to discrimination against the brothers given that the married daughters would also inherit property from their parent's in-laws.

Justice Luka Kimaru however dismissed the claims on account that both children are entitled to their parents' inheritance whether married or not.

"The time has come for the ghost of retrogressive customary practices that discriminate against women, which have a tendency of once in a while rearing its ugly head to be forever buried," ruled Kimaru.

FGM

When the government outlawed the cultural practice of Female Genital Mutilation (FGM) among some communities, a group of traditionalists went to court seeking to overturn the legislation on the basis that it erodes their cultural practices.

Led by Dr Tatu Kamau, the groups argued that the anti-FGM law which criminalizes the traditional practice was archaic and barred women who willingly wanted to undergo the cut in conformity with their cultures from doing it.

They argued that banning the practice was to adorn Western culture and consider the local practices as inferior, unworthy and useless when the forefathers practiced it with no complaints from the women who went through the cultural rites.

High Court Judges Lydiah Achode, Margaret Muigai and Kanyi Kimondi however declared the traditional practice as illegal and upheld the government ban.

"We are not persuaded that one can choose to undergo a harmful practice. From the medical and anecdotal evidence presented by the respondents, we find that limiting this right is reasonable in an open and democratic society based on the dignity of women," the judges ruled.

The judges ruled that the anti-FGM law does not violate the constitution or women's rights to dignity on the reasons that FGM is not a good cultural practice because it inflicts harm on women and girls thereby infringing upon their worth and dignity.

The agreed that FGM is a painful cultural practice to initiate women into womanhood and that it is not possible to convince anybody that it is a good cultural practice that should be preserved.