THE UNAFRICANNESS OF LAGOS CREMATION LAW
A unique fact about Nigeria that is universally held as incontrovertible for now is that the country is home to the largest black Africans in the World.
Nigeria is home to about 250 diverse ethnic, religious and cultural nationalities all of which pay respect to their revered indigenous African tradition and cultural values.
In the words of one of Nigeria's most respected theologians and scholars and a Priest in the Catholic church Dr. Oliver Onwubiko, Nigerians of diverse ethnic nationalities respect the revered African cultural values.
This erudite scholar identified these respected African cultural values to include; sense of community life; sense of good human relations; sense of the sacredness of life; sense of hospitality; sense of the sacred and of religion.
This reverend gentleman also identified other cultural values that are held so dear by a lot of Nigerian communities as; sense of time; sense of respect for authority and the elders and sense of language and proverbs.
The above facts completely conveys the knowledge that Nigerians are people who are proud of their culture and traditions especially all those aspects that promote harmony and human progress.
Conversely, Nigeria as a sovereign entity is a nation governed by law just as it is a notorious fact that our sources of law are derived from foreign legal jurisdiction of the British; local and religious dimensions. Kehinde Adegbite wrote that because of the Nigerian history, the Nigerian law therefore has three colors namely; foreign, local and Religious.
Adegbite further listed the foreign sources of Nigerian law to include the English law, the Nigerian legislation, judicial precedent, the constitution and international treaties.
Further research from the website of jurist legal intelligence confirmed the above assertions of Mr. Kehinde Adegbite and opined that the Nigerian legal system is based on the English common law modified by Nigerian rulings, the constitution, and legislative enactments.
Although legal historians recorded that the origin of the legal profession in Nigeria dates back to about 1862, when the British Colonial administration first introduced a system of courts patterned after the British system, but progressively the need to infuse essential local contents to meet up with the peculiar local demands of Nigerians were adopted fundamentally.
Writing under the theme; “legal education in Nigeria,”published online by Jurists legal intelligence, the writers confirmed that; “In 1945, the Supreme court (civil procedure) rules ended the era of “self-taught attorneys” who, although not professionally qualified, were allowed to function as barristers and solicitors. Henceforth, only a person who is entitled to practice as a barrister in England or Ireland or as an advocate in Scotland could be admitted to practice in Nigeria. (order 16, Rule 1 of the Supreme Court ordinance number 43 of 1943)”.
But the legal historian also noted that the arrangement whereby only lawyers qualified to practice in England and Ireland are accredited to practice in Nigeria proved inadequate for the simple reason that these foreign trained lawyers lack sufficient knowledge of the indigenous customs.
In the words of the writers; “This arrangement proved to be inadequate because the foreign-trained lawyers were not well-grounded in the local laws and customs…”
I have gone to this length of drawing inferences and references from reports done by legal historians just so to demonstrate the necessity of the Nigerian culture and tradition in the law making process.
The reason for my delving extensively into this legal history is because of the raging controversy generated by the recent passage into law in Lagos State recognizing cremation of the dead as a legal form of burial as passed by the Lagos State House of Assembly and assented to by the governor who is a senior Advocate of Nigeria; Mr. Babatunde Fashola.
I, as well as other Nigerians with the deepest regard and consideration to our revered culture and traditions, are strongly opposed to the passage and signing into law of the Lagos cremation law for the very fundamental reason that it was devoid of support in the African metaphysics of paying the highest respect to the dead. Secondly, we in Nigeria cannot borrow foreign customary practice of cremation as is done in India and other Asian cultures and want to superimpose it on our African tradition, customs and cultures.
Specifically, the Lagos state governor signed a Law to Provide for Voluntary Cremation of Corpses and Unclaimed Corpses within Lagos State. The law gives legal backing to the state's authorities to burn unclaimed corpses in its mortuaries, after a period of time. Those willing to cremate the corpses of their relations could approach the state for assistance, so says the Lagos state government.
Fashola, in signing the bill, said the law makes cremation voluntary, adding that its enactment showed how the concept of globalization had taken roots in the state.
Legislative proposal in the Lagos state House of assembly for the cremation law, was first introduced by Mr. Avoseh Hodewu Suru, Chairman of the Lagos State House of Assembly Committee on Health and member representing Badagry Constituency last year, but this was stiffly opposed by the generality of opinion which made the legislature in Lagos to step it down to allow for dousing of the tension it generated.
A background to the enactment of the Lagos state cremation law was said to have followed some disquiet over the increasing lack of land space for burying the dead, especially unclaimed bodies that frequently turn up in the streets of Lagos. This view is not scientifically backed up by facts and figures.
Lagos further explained that many communities in the state were unwilling to release their land for mass burial of such corpses, on health and religious grounds.
Government officials recognizing that majority of Nigerians are not happy with this strange law, took time to explain the voluntary nature of cremation that the law requires.
In an attempt to win the hearts and souls of Lagosians, the Lagos State Commissioner for Justice and Attorney General, Mr Ade Ipaye, said the law "is voluntary in the sense that it allows for voluntary cremation, whereby a person may signify interest to be cremated when he dies or a deceased's family members who must attain the age of 18 years, can decide to have the corpse cremated. The law now makes it legal for the state government to cremate unclaimed corpses in its mortuaries after a period of time".
He added that if the relations of the deceased whose corpse had been cremated also failed to show up to collect the ashes after 14-day notice, it would be disposed by the state government with the approval of the Commissioner for Health.
Cremation, as we all know is the application of high temperature to reduce bodies to basic chemical compounds, and this serves as funeral or post-funeral rites in many countries especially in Asia.
In some countries, such as the United States, there are commercial crematoriums. This has given rise to the suspicion that the Lagos state cremation law may have some commercial profit-driven reason why it was passed since the current Lagos state government is known to have introduced creative strategies for revenue generation.
The Lagos cremation law has indeed touched on the core value of respect of Africans for the dead. The reasons adduced by the Lagos state government is not sufficient to warrant the attempt to annihilate an essential element of our African culture which is the respect we ought to pay to the dead. Besides, the law is sufficiently lacking in local content which is imperative in modern law making process. It does not matter that the Lagos state government is trying to explain away the gravity of this strange legislation by asserting that it is voluntary but the bottom-line is that it violates the core component of African burial rites.
Yvon Loussouarn, a brilliant legal scholar wrote a piece titled; “The Relative Importance of legislation, custom, doctrine, and precedent in French law”, whereby the writer insisted that good laws must necessarily have local contents.
According to this scholar; “The law of every country reflects its civilization and often the diversity in legal systems may be attributed to differences in culture, philosophy, and the conditions of social life".
The comparison of the laws of the Western world with those of China, for example, reveals differences in their conceptions of law explainable in terms of the diversity of the civilization in which they are found, so the scholar argued.
Loussourn also argued that the comparison of Soviet law with the laws of Western countries, on the other hand, reveals differences of philosophy rather than of general civilization.
Among the countries of the Western world, however, no important cultural differences is to be found and yet the laws of these countries do differ greatly, the writer further claimed.
Yvon Loussouarn stated that in Germany, Italy, France, England, and the United States, moral and religious conceptions are about the same; approximately the same ideas of justice and equity prevail; economic conditions are not profoundly different and entail the same kind of social life.
"Why, then do the laws of the European countries differ so widely from those of England and the United States? They differ, it may be observed, not in their general objectives, but in the techniques through which they seek these objectives. The laws of both groups of countries seek the same ideal of justice, but pursue it through different technical procedures. For this reason a full comparison of the laws of the “Common” and “Civil” law countries must be based on their technical aspects, and chiefly on the relative importance of the formal sources of law in those countries," he concludes.
It is therefore inconceivable that the Lagos state governor was in joyous mood while signing the Lagos cremation law and was quoted as saying that Nigeria is a global cosmopolitan city but I ask, will any city in India make their law to favour the Yoruba, Igbo or Hausa cultures?
From www.deathreference.com we are told that "in Africa, death, although a dreaded event, is perceived as the beginning of a person's deeper relationship with all of creation, the complementing of life and the beginning of the communication between the visible and the invisible worlds.”
"In Africa, the goal of life is to become an ancestor after death. This is why every person who dies must be given a "correct" funeral, supported by a number of religious ceremonies. If this is not done, the dead person may become a wandering ghost, unable to "live" properly after death and therefore a danger to those who remain alive. It might be argued that "proper" death rites are more a guarantee of protection for the living than to secure a safe passage for the dying”, the writers submitted.
The fact remains that the Lagos cremation law fails the reality African check because learned scholars on African religion have explained that many African burial rites begin with the sending away of the departed with a request that they do not bring trouble to the living, and they end with a plea for the strengthening of life on the earth and all that favors it.
According to the Tanzanian theologian Laurenti Magesa, funeral rites simultaneously mourn for the dead and celebrate life in all its abundance. Funerals are a time for the community to be in solidarity and to regain its identity. In some communities this may include dancing and merriment for all but the immediate family, thus limiting or even denying the destructive powers of death and providing the deceased with "light feet" for the journey to the other world.
There is absolutely no provision for cremation of the dead under any Nigerian culture and this therefore brings us to the administrative reason for which Lagos state government introduced this foreign practice.
The hospital managements in Lagos must have proper documentation of persons brought to their facilities just as government has to introduce workable health insurance policy to reduce the cost of health care. Why some persons abandon corpses of relatives is because of the exorbitant fees charged by hospitals. It is also not true that individuals and communities have refused to release their land for mass funeral of persons whose corpses are abandoned.
If the Lagos state government has found out that there are now many abandoned corpses in hospitals, it must conduct studies to uncover the basic reason for such a phenomenon. If money is the issue, then government needs to provide financial assistance to identifiable family members of such corpses so that they are retrieved and accorded proper burial.
Lagos state government under the law can compensate land owners to release portions of those landed assets for the purpose of carrying out proper burial of corpses whose owners cannot be traced.
Part one of the general provision of the land use Act of Nigeria provides thus; “Subject to the provisions of this Act, all land comprised in the territory of each state in the Federation are hereby vested in the governor of the state and such land shall be held in trust and administered for the use and common benefit of all Nigerians….”
So the argument that people of Lagos state are unwilling to release their land for mass burial of abandoned corpses does not make sense.
Lagos state government should have a rethink on this cremation law in order not to progressively allow foreign practices and customs to override our local peculiarities which make us unique as Africans.
* Emmanuel Onwubiko is the National Coordinator of HUMAN RIGHTS WRITERS' ASSOCIATION OF NIGERIA and is a former Federal Commissioner of Nigeria's National Human Rights Commission.