In a judgment that strikes a blow for women’s equality in the face of strong cultural practices, the Ugandan high court has ordered that a widow may decide where her deceased husband may be buried. This despite the wishes of the man’s family, who wanted him laid in an ancestral burial ground and who wanted the woman to be barred from in any way ‘interfering’ with the burial. Before making its decision, the court asked for expert witnesses to provide evidence about the burial traditions of the Ndiga clan. And, in its conclusion, the court urged that ordinary members of the public should be encouraged to adopt a culture of writing wills indicating their preferences about property distribution and burial preferences. The judge said this would reduce the number of cases handling burial dispute matters, and would promote peaceful relations between families.
At the centre of this court dispute is a family divided over where Christopher Kyobe, who died of Covid in Switzerland during October, should be buried.
His wife of 28 years – they married in Uganda in 1993 – brought his body back from Switzerland where they had lived, because she said he had told her that he wished to be buried at his matrimonial home in Mukono.
But his birth family disagreed with her decision. In a court application, his siblings and half-siblings (their father had 20 children) insisted that he should be buried at the family’s ancestral burial grounds where his own father was buried.
One of the siblings, the first applicant, said it was necessary for his half-brother to be buried in the ancestral burial grounds. However, in cross examination it turned out that even his own father and grandfather were not buried in the same burial grounds, but lay in two different graveyards, about seven miles apart.
In her evidence, the widow said that her husband had told her he wanted to buried in Mukono where they had built their house during 1997, and that he wanted to be buried at the church there. He specifically said he did not want to be buried where his family is ‘because he was not treated well when he was young’.
According to the siblings, burial was a cultural affair, based on traditions, norms and customs that are protected and promoted by law including the constitution.
Counsel for the widow, however, said her deceased husband did not ‘espouse’ the customs of the Ndiga claim. True, when he visited Uganda he would visit the graveyard where his father was buried, but that was out of respect for his father and not because he wanted to be buried there himself.
The widow’s legal team also raised the important question of constitutionally-enshrined equal rights between men and women. The applicants were half-siblings of the deceased man and clearly had no close relationship with him.
The widow, however, was the closest person to her husband, and was best placed to know his wishes.
Counsel further raised the controversial issue of gender equality, saying the half-siblings did not come with clean hands and were ‘hiding under an oppressive custom of the Ndiga clan’ which denied widows the right to bury their husbands. He urged the court to find that a widow’s rights over the body of her deceased husband should carry more weight than any other rights, and that customs and traditions denying a widow that right were ‘oppressive’.
Lawyers for the half-siblings said they wanted the court to acknowledge that burial in Buganda ‘follows the patriarchal lineage’ and make an order accordingly.
Judge Alice Komuhangi Khaukha, who heard the matter, said she wanted more clarity on these matters, and invited the prime minister of the traditional Buganda kingdom to identify someone who could come to court and help her understand the burial requirements of the Ndiga clan.
This expert witness said that under Ndiga custom, if someone died without a will in which burial arrangements were stipulated, they should be buried where the grandfather is buried. Asked the reason for this practice, the witness said it was to stop ghosts from haunting those who remain. He conceded, however, that if someone were buried away from the ancestral home, this would not amount to ‘an abomination’.
The judge also examined the statutory law that applied when someone died without a will. She pointed out that the relevant provisions recognised that a widower or widow was the ‘most entitled’ to apply for the power to administer the deceased’s estate. ‘Brothers and sisters will only come in where there is no widower, widow and children’.
The judge said the constitution which spoke of equal rights in and during marriage and at its dissolution, meant that the couple was expected to ‘live independently and exclusively of any other person, including their parents and/or brothers and sisters and clan members.’
In the absence of a will stating where someone should be buried, the next person to determine how the deceased’s affairs should be managed, including where he or she should be buried, is ‘the widow as opposed to half-brothers and half-sisters.’
Finding that the widow was the correct person in the circumstances of this case to decide about the burial, the judge then looked at the Baganda cultural practices in relation to burial.
The right to culture was not an ‘absolute right’ or one that allowed no deviation, she said.
When people married, they shared their lives more closely with their partners than with even their close family. The expert on Baganda traditions had testified that it was ‘not an abomination’ for someone to be buried elsewhere than the ancestral grounds, and the judge therefore found that Baganda cultural practices could be deviated from where someone chose to do so, as happened here.
‘Traditions, custom and norms that deny a widow [the] right to determine how her deceased husband should be buried’ were inconsistent with the equality provisions of the constitution, and were thus oppressive and discriminatory.
The judge thus held that denying the widow the right to bury the deceased ‘would not only be contrary to natural justice but would also be discriminatory in nature’. It would subjugate the ‘wishes and rights’ of the widow to the wishes of her deceased husband’s family ‘and it would create a marked inequality in the rights afforded to men and those afforded to women upon the death of their spouses’.
If, in this dispute, the wife had died first, ‘this suit would not be in court’ because it would be accepted that the widower should decide the location of his wife’s burial since the woman became a member of her husband’s family when she married.
‘It would go against justice, equity and good conscience if I denied (the widow) the right to bury the deceased in a situation where even the supreme law of our land provides for equality between men and women in all spheres of life.’
The judge added that there was a pressing need to encourage the culture of writing wills. This would reduce the court’s backlog and would promote peaceful relations between family members, she said.
In her order, the judge gave the widow the right to bury her husband’s body at their matrimonial home in Mukono. She also stipulated that the siblings could not claim any burial rights or interfere with the burial but that they were allowed to attend the burial if they so wished.
- ‘A Matter of Justice’, Legalbrief, 9 December 2021