'Indeed the dead have rights' - Kenyan high court in Covid exhumation case

25 June 2020 · Carmel Rickard

Relatives of a Kenyan man who died shortly after the outbreak of the Coronavirus pandemic, have asked that his hurriedly-buried body be exhumed, tested for Covid-19 and then re-buried with proper traditional rites. They complained that during a late-night burial, the body of James Onyango was put into a shallow grave wrapped in a plastic bag, while a ‘battalion of police officers’ and local government officials surrounded the family house. This was contrary to custom and had caused stigma in their traditional village. Government authorities, however, said post-mortem tests showed that Onyango had Covid-19 and thus he had been buried hastily, according to the practice prevalent in April, with very few attending. The family was particularly worried that wild animals could dig up the body as it was not buried in a coffin, nor in a grave of the normal depth. They said the dead man had a right to human dignity ‘even in death’. In a lengthy judgment, Judge Rosemary Aburili concluded that exhumation was not advised given the health hazards involved, but ordered the grave site be properly cemented to prevent animals from digging it up. She also spoke about the fear and stigma, even at present, if someone in the family was suspected of having Covid-19. She said such a person was ‘surrounded by an army of public health officials, accompanied by heavy security teams, captured like a stray monkey [and] taken to quarantine at the suspect’s own cost.’

Read judgment

After their relative was hastily buried in a shallow grave, wrapped in a plastic bag, and in the dead of night, two Kenyans asked the high court to rule that the rights of the dead man – and the rights of his family – were infringed. They wanted the court to order that their relative be disinterred, tested for Covid-19 and then allowed a proper burial in accordance with the normal tradition of the Luo Culture with which the dead man and his family identified.

The sister and son of James Onyango told Kenya’s Judge Rosemary Aburili that Onyango and some members of his family had left Mombasa on April 6, just as Kenya’s lockdown began, headed for his rural home some distance away. After an accident on the journey, Onyango had complained of chest pains and his health declined. On 10 April he was taken to hospital but he died overnight.

When the family went to view and fetch the body, they were told they could not do so as the Ministry of Health had decided that anyone showing symptoms of Covid-19 had to be tested.

Body bag

Later that day family members were collected by local government officials and taken to the hospital where Onyango had died. They found other officials in hazmat suits with Onyango’s remains in a body bag. The officials said they would ‘personally’ bury the deceased. Despite family protests, they buried him late that same night, in a half-dug grave.

The family told the court that Onyango’s body ‘was disposed of like a stray dog’, contrary to his rights to be buried in accordance with Luo cultural customs. It was also contrary to the World Health Organisation guidelines on managing a dead body in the context of the Covid-19 pandemic.

The way he was buried ‘caused them untold anguish and pain’ and they were now stigmatised and shunned by the community, after details of the abrupt burial circulated on social media and news outlets. Someone who was buried in a hasty and undignified way would ‘haunt’ the family afterwards, they added.

Exhume

Representatives of the public health authority said that tissue test samples were taken from Onyango before he died and he was found to have Covid-19. It would thus serve no purpose to exhume the body for further testing.

Explaining what happened at the grave site, they said that while they were removing the body bag from the vehicle, ‘the deceased’s weight overwhelmed them’. The bag had been ‘severely fumigated’ and was thus slippery, so it slipped from their hands and fell into the grave. This was not intentional, but was due to the body weight and the fact that only two people were allowed to handle the body bag. They said that after the burial officials had gone to the house to arrange that family members would be placed in quarantine, only to find that several of them had run away.

The judge found that ‘one does not lose dignity’ once dead and that actions affecting a cadaver could be considered to the extent that it affected the private and family life of others; it also ‘affected his inherent dignity which does not expire even after his death’. ‘One does not cease being a human once dead; only the state of life is altered. … I conclude that indeed the dead have rights.’

Violation

The protocols in place at the time of Onyango’s burial were not followed by the authorities, nor were ‘cultural norms’ respected that require respect and dignity for the dead. That, in itself, was a violation of constitutional rights, she said.

Onyango had been buried when there was chaos in Kenya and the rest of the world about how to manage burials and other aspects of the pandemic, then in its early stages. There was also widespread stigma associated with anyone who had Covid-19 or those, for example nurses, who had come into contact with it.

While Onyango had been buried at an early stage in the pandemic when the authorities had not yet worked out the best way to respond, it was now essential that the state put in place measures to avoid such things happening in the future.

Stray monkey

It was ‘indeed unfortunate’ that Onyango was not given ‘a proper, decent and dignified burial’, but the judge said she could not find that the actions of officials were deliberate or intended to disrespect the dead. The circumstances at the time were ‘beyond the capacity’ of the health officials in the area.

Commenting on the stigma experienced by people who have been diagnosed with Covid-19, as well as those who work with people who have the virus, she commented, 'Undisputedly, then and now, there is stigmatisation of the victims of Covid-19 in that on being suspected of the virus, one is surrounded by an army of public Health Officials, accompanied by heavy security or enforcement teams, captured like a stray monkey, taken to quarantine at the suspect’s own cost and all contacts traced and quarantined.'

It would be unfair to expose health and other workers to Covid-19 by ordering exhumation, she said, and the court declined to make such an order.

Heroes

Judge Arburili offered her sympathies to Onyango’s family and expressed her admiration for the ‘heroes in the battle front fighting the pandemic’.

Though she did not agree to exhumation, she ordered the county government, within three days and at their own cost, to use high quality material for cementing the grave to protect it against weather and wild animals.

She also ordered that in future the state was to comply with the now established protocols ‘on the management and disposal of bodies’ of people who have died from Covid-19.

* 'A matter of justice', Legalbrief, 23 June 2020

Carmel Rickard

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