Roy Abrams
Burying SM Paper
April 17, 2011

Death. Death is an inevitable occurrence in the life cycle of the human race that is dealt with in numerous different ways. Culture. Cultures are so numerous and varying that it is almost impossible to compare the small nuances that make them unique. Death and culture truly share a major thing in common, as they coincide harmoniously with such questions as “How is death handled?” and “What happens next?” As human beings, it is certainly possible to only look at the perspective of death that our particular culture is familiar with, and to let that obscure the views of others around the world. In Africa, death is a little more complicated. Placing the focus on one country in Africa, Kenya is a land that is still divided by tribal differences, differences that have been in place since written record itself is known about this region of the world. Death in Kenya raises a few questions, just as it does in places like Chicago, or Venice, or any small town in rural Kansas. These questions were far more involved after the death of lawyer Silvano Melea Otieno in 1986. “SM”, as the man’s name is abbreviated, was born a member of the Luo clan or tribe, but upon marriage with is wife Virginia, a Kikuyu tribe member, threw Kenya for a loop in ways he could never have imagined (Cohen; Odhiambo, 1992). The problem that was really a deep-seeded threat in this situation was a case of pluralism, or a diversity of views. An intense legal battle ensued, and through all of the laws and smoke and mirrors, Silvano Melea Otieno was finally buried in his home region of Nyamila. The laws of ethnic and traditional ties wound up victorious in this clash, even though it was widely known that Otieno and his wife lived their lives separate from society norms. SM should not have been forced to been laid to rest in Nyamila, freedom of choice should have been granted and his body should now lay at his farm located in the Ngong region just outside of Nairobi. Shortly after SM’s death, the two tribes were then involved in a struggle as to where his remains where to be buried, and a final resting place to be selected. There are two types of pluralism, either normative or legal. In the case here with Mr. Otieno, both types of pluralism came into effect. Normative pluralism really draws upon the society or cultural normalcies that tend to constrict and limit deviation from these rules. Legal pluralism involves court proceedings that override the in-place cultural-state laws that deny individuals the common human right of choice (Twining, 2009). Clearly, with the American ideals of freedom and the choice to decide our own fates and the fates of our family members, it is logical to state that Mr. Otieno should have been granted the legal case to be buried at his farm as per the wishes of his wife Virginia. In order for this famous case to be even relevant today, it is obviously so that it drew immense public spotlight back in 1986-1987 when the legal battle was still being enacted. To put the case into a more relevant example, the S.M. Otieno case in Kenya had as much public media exposure as the O.J. Simpson case did in the United States. With the entire world seemingly peering down upon the African nation, Kenya was forced to handle the brunt of the activist activity that took place during the trial. The fact that Kenya was a nation divided was evident, a land split between several different cultural rule-sets, whether it be the Luo, the Kikuyu, or any of the other factions or states of Kenya (Githongo, 2010). The face that these divisions are still evident today proves that Kenya has had a past and will certainly have a future of strict normative pluralism, and the Otieno family was ravaged by these killer hidden codes. Aside from all of the tribe-enacted rules, the court decision that finally decided that SM would follow his cultural customs and be buried in his hometown is shocking and utterly different from the freedom that we so covet in our society. The court claimed that as Mr. Otieno’s widow, Virginia had no right, under the customs of his tribe, to bury her husband at their farm outside of Nairobi (Reuters, 1987). No right. The tribal standards that bound this court decision nullified the natural right of a spouse to lay their significant other to rest. The article from the New York Times is really a great example of how widespread the news of this court battle spread, as people in America were left shocked at how such a simple human right had been snatched away due to long-outdated and un-solid rules set up by a lineage of tribal elders, members, and scholars. A wife was not allowed to bury her husband near their home, truly nullifying the closer that all people seek with the completion of burial and prayer. History is of course very important in the course of the human race. The tribes of Kenya are built upon a rich history of past events, facts, “rules’, and general key ideals that make each tribe unique from one another. By examining this court case further, surely, an argument could be made to support the courts of Kenya and to explain why S.M. Otieno should have been buried exactly where he ended up in his hometown of Nyamila. Cultural back rounds are very important in not only Kenya, but really in any religion or belief system that is in place today. Is it not custom for a Christian burial ceremony to include a mass? Or for a Jewish boy who is entering manhood to celebrate this joyous occasion with a bar mitzvah? Culture is very important in the world, so important that strong backing and support is given to the nuances and subtleties of the rules that are tucked away inside of it. In this case, the Luo ties that Otieno was born into were strong, and influential, and wound up deciding his ultimate fate in his stead. Truly, why should the court have changed the very ways they have operated for many years just for one case of a family that claimed to not have lived by their pre-determined society norms? There is certainly a strong argument for both sides of this tragic case, but it is still necessary to side with the grieving widow, as personal choice and love and emotions should always supersede the unforgiving and un-excepting laws of the past. The Luo tribe truly believed that S.M. Otieno should have been buried in his place of birth, not because he was born there, but because the holy ancestral spirits were located in his hometown of Umira Kager (Nyamongo, 2000). Further reading about the cultural practices of this interesting tribe only strengthens the argument to break the oppressive and discriminatory bonds that their rules put in place. When a Luo man dies, a fire is lit called the magenga. This holy fire burns for six to seven days, and is a symbol of cleansing. This same holy fire only burns for three days for a woman. Certainly American people understand the hardships of female oppression, and it overcame the chains of bondage nearly a century ago, while Africa in many ways, is still treating the sexes differently in so many facets of life. This is a change that really needs to occur, and can only occur, if the old-time “rules” of tribes such as the Luo allow ALL of their members to live and die in the ways in which allow ALL of them equal and fulfilling closer to such a profound and sometimes traumatic experience. Silvano Melea Otieno was a distinguished man, a trial lawyer, well educated and versed as many are in Kenya in the Queen’s English. He was married to the love of his life, and purchased a family home where he decided to dwell in the village of Ngong, just outside of Nairobi. When his untimely and sudden death occurred, nobody would have begun to think that an entity that was completely absent from his personal life, his tribal heritage, would make the decisions that family should undoubtedly have the privilege and right to make. The very courts that he became well versed in as a trial lawyer seemingly abandoned the written and scripted laws that he knew so very well, rather following the unmarked and unlit path of heritage, folklore, and lack of personal identity that the Luo tribe laid before it. A grieving widow had no chance to break the bonds of a holy cultural cornerstone, instead forced to bury the man that she loved far from her home, crushing her ability to visit the site where her loved one now rests so without peace. S.M. should have been buried near his farm in Ngong, so that his wife and other family members could understand and mourn his exit from this realm, but instead, they now are left broken, without closure, and angry at a seemingly intangible force that continues to drive the people of Kenya. Change needs to happen, people need to be allowed the freedoms of choice and discretion that the American people so happily enjoy. Perhaps in time the Kenyan turmoil and strife will come to an end, but still today, tribal boundaries and intestate deaths continue to tear apart sacred events in life, even one of the most sacred, the occurrence of death itself.

Works Cited

Cohen, David William; Odhiambo, E.S. Atieno. (1992). Burying SM, The Politics of Knowledge and the Sociology of Power in Africa. Portsmouth, NH. Heinemann Publishing.
Van Doren, John W. (1988). Death African Style: The Case of S.M. Otieno. The American Journal of Comparative Law. 36 (2). 329-350.
Mutongi, Kenda. (2007). Worries of the Heart: Widows, Family, and Community in Kenya. Chicago. University of Chicago Press.
Reuters. (1987, May 25). A Top Kenyan Lawyer Buried Amid Tribe's Exorcism Rites. New York Times. p. 37. Retrieved from EBSCOhost..
Twining, William. (2009). Normative and Legal Pluralism: A Global Perspective. [Lecture Abstract]. Retrieved from Duke University Google Docs.
Chabal, Patrick. (2009). Africa: The Politics of Suffering and Smiling. London. Pietermaritzburg Zed Books Ltd.
Monari, Evans. (1988). Burial Law—Reflections on the S.M. Otieno Case. Howard Law Journal. 31. p.667.
Githongo, J. (2010). Fear and Loathing in Nairobi. Foreign Affairs, 89(4), 2-9. Retrieved from EBSCOhost.
Nyamongo, Isaac. (2000). Burying the dead, culture and economics: an assessment of two Kenyan cases. International Social Science Journal. 51 (160). 255-261.
Meisler, Stanley. (1970). Tribal Politics Harass Kenya. Foreign Affairs. 49 (1).