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 cosmolitan 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.
28/6/2013.
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