Test of Women’s Rights in Kenya : Tribe Defeats Widow in Battle Over Body

A judge ruled Friday that a tribal clan, not the widow, should bury a prominent lawyer whose remains have been the focus of a legal wrangle that aroused tribal tensions and became a test case for women’s rights.

Tribesmen had argued that they would be haunted by ghosts if not given the body.

The widow immediately blocked the burial by applying for an injunction. Chief Justice Cecil Miller said he would hold a hearing Monday on her request.

“Change is inevitable, but it must be gradual,” Justice S. E .O. Bosire said in his verdict in a case involving the body of Silvano Melea Otieno, 55, who died Dec. 20. The judge said he had to rule in favor of “customary law” because there was no written law on burials.

Crowd Cheers

A crowd, numbering in the hundreds, cheered as news of the verdict passed by word of mouth. Members of the Luo tribe went to the police-guarded city mortuary after the verdict to claim Otieno’s body but were turned away because of the request for an injunction.

Some legal observers said the verdict was a setback to President Daniel Arap Moi’s efforts to promote nationalism over tribalism in Kenya, which won independence from Britain in 1963.

Richard Kwach, lawyer for the Luo clan, said the verdict could set a precedent for other cases related to tribal customs where no written law exists.

Won First Round

The legal fight began when Virginia Wambui Otieno, the widow and a member of Kenya’s predominant Kikuyu tribe, announced she intended to bury her husband at their farm in Ngong near Nairobi.

A lower court awarded her custody of the body, but Otieno’s younger brother, Joash Ougu, and his fellow Luo clansmen appealed. They argued that the body should be buried at the lawyer’s birthplace near Lake Victoria in accordance with Luo customs or his relatives would be cursed for life.

“Wherever I go my clanspeople will spit at me,” Ougu, the brother, testified. “I will not be able to sleep properly, because wherever I go, there will be ghosts haunting me for allowing my brother to be buried elsewhere.”

At a news conference after the verdict, Virginia Otieno, 48, said, “This is not my case alone, it is going to be a precedent for all women and men of this republic. It is going to cause a lot of problems for the judiciary and the people of this country for a long time to come . . . I know and believe that God will get my revenge.”

Her attorney, John Khaminwa, said the couple had married in a Christian ceremony and observed Western, rather than tribal, traditions.

Omolo Siranga, the Nairobi spokesman of the Luo clan, had testified that Luo tradition gave a widow no voice in a clan’s arrangements for a dead man’s funeral.

“Her views and those of her children are absolutely immaterial,” he said.

Otieno told reporters that her parents might have erred in allowing her inter-tribal marriage in 1963, then a rarity. “Marriage has no more value, as these (Luo) people said in court, and I think it is confirmed if I can live with someone for so many years and not be allowed to bury him,” she said.