Annette Yosia & 4 Others vs Ambassador Idule Amoko & The Attorney General: HCMC No. 41 of 2023 - A Legal Analysis of Burial Rights in Uganda.
- Waboga David
- May 10, 2024
- 15 min read
Introduction
In the case of Annette Yosia & 4 Others vs Ambassador Idule Amoko & Anor (HCMC No. 41 of 2023) , the high court grappled with a complex and sensitive issue:
the right to determine one's own burial arrangements. At its core, this case raises fundamental questions about the balance between individual autonomy, religious and cultural beliefs, and the rights of loved ones in determining the posthumous fate of a deceased person and estoppel where there was consensus in regards to burial of the deceased. Can an individual's wishes regarding their own burial be overridden by the beliefs and values of their relatives? Or should the deceased's autonomy and dignity be respected, even in death? This legal analysis examines the nature of burial rights in Uganda, and the development of our jurisprudence in regards to the same, exploring the tensions between individual rights, cultural sensitivities, and legal responsibilities. Forum. This matter was before High Court Judge Ketrah Kitariisibwa Katunguka, who delivered her ruling on 27th June 2023. In her ruling, she stated that while culture is valuable, some of its aspects have evolved over time through education, exposure, and transformation, particularly in light of the 1995 Constitution's provisions on women's rights. Given that the deceased chose to build a home and establish a farm at her ancestral home, it appears that the couple had opted for a blended cultural approach. Therefore, it would be unfair to disregard her wishes, especially since she is no longer able to defend herself. Representation. The Applicants were jointly represented by counsel Adubango Richard, counsel Roger Mugabi, counsel Pius Katumba, and counsel Stanely Okecho. The 1st Respondent was represented by Senior Counsel Simon Peter Kinobe, together with counsel Ernest Kalibala, counsel Apollo Katumba, counsel Abraham Mumbere, and counsel Baku Raphael Obudra. Meanwhile, State Attorney Mugisa Lydia represented the 2nd Respondent. Background.
The Applicants (Annette Yossa, Komakech Emmanuel, Amony Jackie Picho Godfrey, and Christine Onyok) brought this matter to court seeking court orders to restrain the Respondents (Ambassador Idule Amoko and the Attorney General) from burying the late Hon. Justice Mary Stella Arach-Amoko in Adjumani district, as advertised in a burial program. Instead, they wanted to bury her at her family ancestral home/burial ground in Nebbi district, according to her wishes and customary law.
The Applicants were the biological children and siblings of the late Justice Arach-Amoko, while the 1st Respondent their stepfather. The deceased was a Supreme Court Justice who passed away on June 17, 2023. The Applicants claimed that she had expressed her desire to be buried at her family compound in Nebbi district, next to her late father, and that this was agreed upon in a family meeting on June 18, 2023.
However, the 1st Respondent and his relatives communicated a contrary position, insisting that the deceased should be buried at his ancestral home in Adjumani district, according to Madi cultural customs. The Applicants argued that this goes against the deceased's wishes and their own cultural customs as Ker Kwaro Kaal Jonam.
The Respondents filed affidavits in opposition, with the 1st respondent stating that he was married to the deceased for 27 years and that she never expressed any desire to be buried in Nebbi district. He claims that as her surviving spouse, he has a pre eminent position to determine where she should be buried. The 2nd Respondent (Attorney General) stated that the burial program was issued based on the advice of the known next of kin (the 1st Respondent) and that it is not their duty to determine where the deceased should be buried.
The Applicants filed an affidavit in rejoinder, disputing the respondents' claims and reiterating their desire to bury the deceased according to her wishes and their cultural customs. They also claimed that the 1st Respondent did not take care of the deceased while she was in hospital and that she did not recognize the house in Adjumani district as her place of burial.
The Application that was brought before court sought orders to restrain the Respondents from burying the deceased in Adjumani district, to authorize the applicants to bury her in Nebbi district, and to award costs to the Applicants. The primary issue before court was. Whether the late Hon.Lady Justice Stella Arach Amoko should be buried in Nebbi District or in Adjumani District. Submission of the Applicant. Counsel for the Applicants submitted that there was a family consensus to bury the deceased in Nebbi, which the 1st respondent is estopped from departing from, and that the 1st respondent's claim of a notorious Madi custom requiring burial in Adjumani is unproven, repugnant, and inapplicable, and has been breached in previous instances. That the custom supporting Nebbi as the burial venue is proven, valid, and applicable, and is entitled to judicial recognition. Furthermore, that the ascertainable wishes of the deceased were to be buried in Nebbi, which is consistent with her custom and should be respected. Nebbi is a more appropriate and dignified resting place, being the ancestral burial grounds of the royal family, and is more accessible to the 1st respondent and others.
That the Applicants' wishes should be granted as they are biological children and siblings of the deceased, and the 1st Respondent's intolerance and refusal to honor the deceased's culture is selfish and unjustified. They further submitted that the presumption of spousal precedence should not apply in this case due to the 1st Respondent's untruthfulness, the pre-existing strain in their relationship, and the applicants' blamelessness in the dispute. Overall, Counsel prayed that the court upholds Nebbi as the burial place of the late Justice Stella Arach and awards costs to the Applicants. Submission of the 1st Respondent. Counsel for the 1st Respondent argued that the Applicants failed to demonstrate a clear understanding to bury the deceased in Nebbi, and that the 1st Respondent's acknowledgment of the 18/6/2023 meeting does not bind him to a tentative decision. Furthermore that, estoppel cannot be applied to override written law, and there is no proof of detriment to the Applicants. That custom is not absolute, and the 1st Respondent's position as spouse takes precedence over the views of the family. Counsel further submitted that the right to culture is applicable to the living, and the deceased's wishes must be independently proven to be reliable; that Nebbi is not conflict-free, and Adjumani has decent burial grounds; that allegations of disharmony between the 1st respondent and the deceased were unfounded, and spousal rights should not be tampered with. Moreover, that the application is based on the wishes and interests of the applicants, making them not blameless; and the submissions of counsel for the applicants are geared towards interpretation rather than application, making this court a wrong forum, and therefore prayed that the court grants letters of administration to the 1st Respondent and upholds the burial in Adjumani, with each party bearing their own costs. Submissions for the 2nd Respondent State Attorney Mugisa Lydia argued that the 2nd respondent (Attorney General) is wrongly blamed for printing the burial program, as it was actually printed at the instruction of the 1st respondent (the deceased's husband). Additionally, when the Applicants challenged the burial location, the 2nd Respondent took a neutral stance by postponing the burial until a clear legal position was established.
Opinion of the Court. Lady Justice Ketrah Kitariisibwa Katunguka resolved the case by considering the following questions:
Did the deceased express her burial wishes?
Should her wishes be overridden by her husband's cultural practices?
Should she be buried according to her custom?
Where should she be buried?
On whether the deceased express her wish as to where she should be buried? and is it that wish that led to the consensus? The Law on Burial Disputes. The learned Justice referenced the legal position in Jovia Matsiko v. Emmanuel Wandera Miscellaneous Cause No.141 of 2021 UGHCFD No.141 of 2021 (see full case below https://ulii.org/akn/ug/judgment/ughcfd/2022/3/eng@2022-06-06
where it was held that there is no express law governing burial disputes especially for persons who die intestate but various laws grant the court powers to intervene in such situations, including the Constitution of Uganda (1995), the Civil Procedure Act (sections 98, 14(1), and 15(1)), the Judicature Act (section 15(1)), and the Succession Act (sections 184(2), 190(2), and 277). That the court has the authority to resolve disputes regarding the disposal of a deceased person's body, including the place of burial, when family members cannot agree, considering factors such as the lack of property rights in a dead body, the inability of anyone to own a deceased's body, the importance of respecting the deceased's wishes if ascertainable and legal, and the need to consider the persons closest to the deceased, in order to ensure a dignified burial and prevent further disputes. persuaded by the position in John Omondi Oleng and Anor Versus Sueflan Radal (2012) Eklr; and that the deceased’s body is incapable of ownership by any person as observed in Buchanan Vs Milton [1999] 2 FL R 844;
Where the wishes of the deceased can be ascertainable they should be given effect as long as they are not illegal, unreasonable or repugnant; the persons closest to the deceased must be considered;
Flexibility of Common Law in Determining Burial Disputes. The court held that the nature of the dispute calls for court to apply a flexible balancing of common law principles, equity and practical considerations approach taking into consideration the need to determine what is going to provide the most justice; mindful of the position the deceased held in this country; the seemingly mixed customs and the expectation of society.
That the court's duty is to make orders that accommodate the fundamental requirements of a deceased person's burial, while respecting their wishes as much as possible. The Validity of a Will When Ascertaining the Wishes of the Deceased
The court held that in Uganda, the position of the law is that a Will must be in writing, signed by the testator and witnessed by persons who shall each write their names and sign on each page where the testator’s signature is appended;(section 50 of the Succession Act as amended) The question I ask myself is: does a dead body form part of the deceased’s estate? Referencing precedents in John Omondi Oleng and Anor Versus Sueflan Radal; Buchanan Vs Milton; and SAN Vs. GW the court held that a dead body is not considered part of the deceased's estate as it has no property value. The courts have decided that the person responsible for administering the estate should also be responsible for burying the deceased and determining the burial location, not based on ownership rights but on the responsibility to ensure a decent send-off.
The deceased's wishes, even if not in writing, should be considered and given considerable weight, especially if corroborated. The views of the deceased's relations should not be ignored, but the final decision should rest with the person having legal responsibility for burial, especially if they are acting in accordance with the deceased's wishes.
Wishes of the deceased.
The court was persuaded by the position In Spratt v Hayden, [2010] WASC 340 Le Miere made reference to Heather Conway’s 'Dead, But not Buried: Bodies, Burial and Family Conflicts' (2003) 23 Legal Studies 423; to wit:
‘If an individual can determine what should happen to his or her body when alive on the basis of religious or cultural beliefs, these should be accorded equal respect when an individual is determining the posthumous fate of his or her body. Moreover, where the person with legal responsibility for burial is intending to bury the deceased in a manner contrary to his or her religious or cultural beliefs, other relatives and those with close ties to the deceased should be able successfully to challenge this decision…However, the position would be different where the deceased's loved ones are challenging the form of burial because of their own religious and cultural values, despite the fact that the deceased did not espouse those values while alive. In these circumstances, the final decision should rest with the persons having legal responsibility for burial (especially where they are acting in accordance with what the deceased wanted); the views of the deceased's relations should be ignored, as would be the case under the current framework’. I hold the same view
In relation to the case. Court opined that the views of the late Justice Stella Arach Amoko were shared with close relatives at a family meeting on June 18, 2023, and a funeral program was communicated, indicating that the 1st respondent was aware and accepted the plans. Although the 1st respondent later changed his mind and did not call another meeting, his presence at the initial meeting is not disputed.
The Applicants' counsel could not produce minutes or video of the meeting, which is understandable given the nature of family meetings and the lack of suspicion among family members at the time.
Based on the evidence, the court found that the deceased's wishes regarding her burial place (Nebbi) are ascertainable and were communicated to the family, including the 1st respondent, leading to a consensus. The court thus answered the questions of whether the deceased expressed her burial wishes and whether that wish led to the consensus in the affirmative. Estoppel Where There Was Consensus in Regards to Burial of the Deceased. The court held that, the doctrine of estoppel, as stated in Section 114 of the Evidence Act, prevents a person from denying a fact they previously led another to believe, if the other person acted on that belief to their detriment. This doctrine has been applied in various cases, including Arch. Joel Katerega & Ors Vs Uganda Post Limited and Buildtrust Constructions Limited vs Martha Rugasira, where it was held that a person who benefits from another's actions cannot later deny the truth of those actions.
In the present case, the 1st Respondent was estopped from denying that he was part of the family meeting that agreed on Nebbi as the burial place, as he knew the deceased's wishes and allowed the applicants to prepare for the burial based on that consensus, only to later change his mind. The 1st respondent's statement that the consensus was tentative and that the applicants did not act on it is an evasive denial, which offends the rules of procedure.
The court agreed with the Applicants' counsel that the 1st respondent's affidavit in reply amounts to an evasive denial, which is not allowed under Order 6 rule 10 of the Civil Procedure Rules.
The court found that the 1st Respondent's actions caused confusion and disorganization, and he cannot be allowed to benefit from it. Therefore, the court held that the 1st Respondent is estopped from denying the truth of the consensus reached at the family meeting.
Who has the right to choose where the deceased should be buried;Should the deceased’s wishes be considered in this case when she was married; Whose culture should be applied? The court went at length citing various authorities as follows That the common law principles regarding burial rights are not absolute and must be considered in light of the specific circumstances of each case. The Succession Amendment Act 2022 has changed the position of the executor, administrator, and surviving spouse, making their entitlement to dictate the place of burial subject to court discretion.
The court must consider the fitness and propriety of the applicant, and the peculiar circumstances of each case, including the expectations of the community, the relationship between the deceased and the disputing parties, fairness, reasonableness, respect, decency, and the need to preserve family relationships. This approach ensures that the court's decision is tailored to the unique circumstances of each case.
In determining who has the right to bury the deceased, the learned justice held that the court must carefully balance the competing interests and considerations. This requires a sensitive and nuanced approach, recognizing the grief, tragedy, and loss of the parties involved. By considering all relevant factors, the court can make a decision that is fair, reasonable, and respectful of the deceased and their loved ones.
Reference to other jurisdictions. The learned justice opined that While different jurisdictions may have different lenses on things circumstances surrounding a deceased person and burial are similar across the globe; one dies and one‘s remains must be disposed of; and life must continue;
In the above regard therefore I have chosen not to consider issues of the alleged rift between the deceased and the 1st respondent; because they are not relevant since the couple was neither separated nor divorced.
The court considered whether the deceased had a right to choose her burial place, despite being married to a Madi man, who claimed she could only be buried at his ancestral home.
The court reviewed previous cases, including Namusoke Annet Kiwanuka vs Amuge, Kyobe Julius Luseleka& Ors vs Aida Namalwa, and Jovia Matsiko vs Emmanuel Wandera, which upheld the pre-eminent status of a spouse in determining burial place.
The court noted that the decision to bury a person is often informed by the emotional need to preserve family ties and allow family members to heal. In Ugandan societies, people are typically buried at or near the family home, allowing for continued connection and ancestral thread.
The court considered the definition of "family" and noted that the 1st respondent referred to his family as a "blended family," which includes children from earlier marriages or relationships. However, the court found that the relationship between the Applicants (the deceased's biological children) and the deceased is natural and organic, while the relationship between the 1st respondent and the deceased had ended.
The court concluded that the biological children's wishes and connection to the deceased should be taken into account in determining the burial place, especially since they have no blood ties with the surviving spouse and his relatives.
The court found that the deceased's emotional attachment was to the home in Nebbi, where she spent holidays and regular visits, and not to the home in Adjumani, which she never took her children to.
The court considered the unique circumstances of the case and distinguished it from previous cases that favored the spouse's wishes.
The court found that the wishes of the deceased's children, regardless of age, carry significant weight in this case. The court cited Nice Bitarabeho Kasango vs Rose Kabise Eseza, which prioritized the children's comfort and familiarity with the burial location.
The court also considered Jones v Dodd, which emphasized the importance of practical circumstances, sensitivity to relatives' feelings, and religious or cultural considerations.
The court noted that the deceased was cared for by her family while ill, and her elderly mother would find it difficult to visit her grave in Adjumani. Considering these factors, the court ruled in favor of burying the deceased in Nebbi, according to her wishes, as it would be more convenient and comforting for her children and family.
The court's decision prioritized the family's emotional well-being and familiarity with the burial location, rather than solely favoring the spouse's wishes.
Should the wishes of the deceased on where she wanted to be buried be overtaken by the 1st respondent’s culture? Or should the late Justice Stella Arach Amoko be buried according to her custom.
The learned justice observed that in considering the cultural and religious beliefs of the deceased and her family in determining the appropriate burial site, and to balance the competing interests and customs of the parties involved. That the concept of custom is defined as a practice that has been adopted and followed for a long time, and has the force of law (Black's Law Dictionary, 11th Edition). A valid custom must be ancient, certain, reasonable, obligatory, and not repugnant to statute law (Osborne's Concise Law Dictionary, 9th Edition).
Furmore, the Constitution of Uganda (1995) recognizes and promotes cultural and customary values that are consistent with fundamental rights and freedoms, human dignity, democracy, and the Constitution (Objective 24). The Judicature Act (Cap. 13) also provides that the High Court shall observe and enforce existing customs that are not repugnant to natural justice, equity, and good conscience (Section 15(1)).
Customary law is defined as the laws, practices, and customs of indigenous peoples and local communities as held in Magbwi v MTN (U) Limited & Anor, 2017). It is intrinsic to the life and custom of indigenous peoples and local communities, and is characterized by established patterns of behavior that are objectively verifiable and have a binding quality as per Article 37, Constitution of Uganda.
Thus, court found that in disputes over burial places, consideration should be given to cultural, spiritual, and religious factors as was stated in Nice Bitarabeho Kasango v Rose Kahise Eseza.
The party propounding a customary law has the onus to prove its existence, and this can be done through evidence of persons who would be likely to know of its existence or expert opinion as stated under Section 46, Evidence Act. The court emphasized that customary law must be accurately and definitely established, and the party relying on it has the burden to prove its existence through evidence or expert opinion as stated in Ernest Kinyanjui Kimani v Muira Gikanga, 1965 and Obitre Jackson v Abdu Matua Charles, 2011.
In this case, the prime minister of Ker Kwaro Kaal Jonam testified as an expert that the deceased was a princess with a title and that her burial requires passage rites to be performed at the ancestral burial grounds in Nebbi district.
However, the 1st respondent failed to present an expert witness to prove the existence of the cultural belief that a wife must be buried in proximity to her husband at the husband's ancestral burial grounds among the Madi culture.
The Constitution of Uganda guarantees equal rights to men and women, including the right to practice their culture under Article 31(1). The deceased chose to continue practicing her culture as a princess among the Jonam, and the 1st respondent did not prove that this culture is repugnant. Therefore, the court should recognize and respect the deceased's cultural beliefs and burial rites.
Conclusion. In conclusion, the court ruled in favor of the applicants, allowing the late Hon. Justice Mary Stella Arach-Amoko to be buried at Jukiya Hill Ward, Juba Village Nebbi District, according to her wishes and the cultural customs of the Jonam people in the Ragem chiefdom. The court recognized the importance of respecting the deceased's cultural beliefs and burial rites, and has emphasized that the 1995 Constitution guarantees equal rights to men and women, including the right to practice their culture.
The court also acknowledged that the practice of some cultural aspects has been improved through time, education, and exposure, and that the deceased had chosen to leave a blended culture. It would be unfair to disregard her wishes when she cannot defend herself.
The court also directed the 2nd respondent to commence burial arrangements immediately, and has allowed the 1st respondent and his family members to attend the funeral without any disturbance.
The court also ordered that the burial shall not be further delayed by any party's intended responses or reactions to this ruling.
This ruling is a significant milestone in the legal analysis of burial rights in Uganda, and cements the precedent for the recognition and respect of cultural beliefs and burial rites in the country.
Read full case below
By Waboga David Lawyer-Writer-Researcher
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