By Runsewe Solomon & Damilola Akinmolayan
Most existing public cemeteries in Nigeria are prefer over-crowded, not secure and poorly managed. Thus, many people would rather to be buried at home than in such places. The Hope Classics spoke with some analysts and legal practitioners on the legality of burying people at homes. Excerpts:
The death and eventual burial of loved ones all over the world usually attract deep emotional and cultural sentiments regardless of religious or cultural leanings.
The modes of burying corpses are diverse, and it varies from country to country and even culture to culture. In almost all of the developed countries, cremation, which is the burning of corpses into ashes, is the most common form of disposing the corpses of loved ones and family members.
In Nigeria, some muslims bury their dead also in designated cemeteries, while some bury theirs in dwelling houses, especially if the dead had a house of its own. The Christians, the world over, normally bury their dead members in designated places called cemeteries, just like their muslims brothers. It should however be noted that Christian clerics , particularly those referred to as “General Overseers/Founder” are invariably buried in very conspicuous places within the church premises.
But the vexed question arising from these various and indiscriminate forms of burial is: How lawful is the burial of corpses of deceased persons in dwelling homes and residential areas? It must be made abundantly clear that besides the health hazards and dangers such burial portends or entails, the law makes it patently illegal and unlawful.
For the avoidance of doubt, the relevant provisions of the law as explicitly enshrined in Section 246 of the Criminal Code Act,Cap 17, Law of the Federation 2004, is hereby reproduced: “Any person who without the consent of the President or the Governor buries or attempts to bury any corpse in any home, building or premises, yard, garden, compound or within one hundred yards of any dwelling house or any open space situate within a township is guilty of a misdemeanour, and is liable to imprisonment for six months.”
The 1999 Constitution of the Federal Republic of Nigeria (as amended) permits both the Federal and State Governments to enact laws for the Defence, Public Safety, Order, Morality, Health of their citizens. Indeed, almost, if not all the States Houses of Assembly in the South East, South West and South South of the country have enacted the relevamt laws making the burial of corpses in dwelling houses or residential areas a criminal act which attracts jail terms.
The extant laws at both the Federal and State levels make it a criminal act for any person to bury the corpse of any deceased person in a dwelling home or residential area. Before anybody can bury a corpse at home or residential area the consent of the President or the Governor, as the case may be, is mandatory.
The reason for such approval is to ensure that all safety and precautionary measures are taken to avoid endangering the lives of the living. I consider it expedient to dwell briefly on the health implications and dangers the practice of burying corpses in residential building and public places may pose to the health and well-being of those living too close to where corpses are buried. For instance, if a borehole or well is dug or sunk in a dwelling house where a corpse is buried, there is very high likelihood that the liquid oozing or emanating from the decomposed corpse may find its level to the borehole, resulting in the contamination of such borehole, which makes it no longer potable and fit for human consumption.
There is the need to sensitize and enlighten the public on the incalculable dangers inherent in the unwholesome practice of burying corpses in dwelling houses and residential areas. Ignorance of the law, they say, is not an excuse. It is an illegal and unlawful act to bury the corpses of our dear ones in dwelling houses and residential areas. It attracts six months imprisonment!
Taking the federation as a whole, by the provision of section 246 of the Criminal Code Act, anyone who without the consent of the President or the Governor buries a corpse in any house, yard, garden, premises, compound or within a hundred yards away from a dwelling place has committed an offence of misdemeanor and such an individual is liable for six months jail term.
This is law as it is but it is not been observed.
In Nigeria and most African societies, the connection of the living with their departed family members is enormous. Many traditional beliefs are associated with the dead members of the family. Egungun (masquerade) festival is based entirely on the Yoruba people’s belief system that the dead only depart from the physical realms but still live with his people in the family home. Thus, the culture of burying the dead members of the family at home.
However, the reality established by health science has shown that the public health potential problems associated with burying human corpses at home outweighs the cultural sentiments attached with burying of the loved ones at dwelling Houses and residential areas. Given this established danger, burying of corpses at dwelling Houses and residential areas has been criminalised by Criminal Code Law of Ondo State, proscribed by the public Health law and prohibited by the Burial Law of Ondo State.
Any person who without the consent of the President or the Governor buries or attempts to bury any corpse in any house, building, premises, yard, garden, compound, or within a hundred yards of any dwelling-house, or in any open space situated within a township, is guilty of a misdemeanour, and is liable to imprisonment for six months.
Under the provisions of the Burial Law of Ondo State, 2006, every human corpse must be buried at the designated area known as cemetery. Hence, any person who participated or officiated at the burial of corpse at any place that is not designated as a cemetery violates the law and is liable to legal punishment provided for by the applicable laws.
Notwithstanding the provisions of the law forbidding the burial of corpses at dwelling home, residential area, or within a town, under certain circumstances, the Local Government Authority is empowered to grant permission for the bereaved to bury their corpse at a place other than a cemetery provided the burial is supervised in such a way that the burial will not constitute any danger to the public health and hazard to the citizens living within the community where the corpse is buried.
One of the reasons that led to the outlaw of burial of human corpses at residential area is to prevent the spread of communicable diseases within the society. In some States in Nigeria, using of residential areas and dwelling homes as morgues has been prohibited for same reason.
If losing a loved one is a bitter pill to swallow, burying the dead is a harrowing experience. In fact, in Africa, death is one of the “taboos” we don’t like talking about or planning towards. People don’t like talking about death. But interestingly, death is a reality no one can run away from, hence, we must talk about it. If death is a definite end, everyone ought to be interested in where his or her final resting place would be. This is what this piece is about.
It explores, from the environment angle, commonly avoided questions around death, including where should the remains of loved ones be buried: In the backyard or in cemeteries? Should remains of loved ones be buried at home or in cemeteries? In burying the dead, what factors should be considered in deciding a befitting final resting place?
Before we continue, we must admit that burial of loved ones in residential areas (e.g. in the backyard) is a sensitive matter that must be approached carefully. There is a number of cultural, social, religious, financial, health and environmental issues associated with burying the dead – these must be wholly considered before a final resting site for the dead is decided. In any case, at the end of a man’s journey on earth, one of the most important questions is “Where would be his final resting place?”
Burying the dead in residential areas (at home) is an age-long practice and is referred to as home burial. Once the remains of a corpse is buried on a residential property, the property technically becomes a “burial site”.
People bury the remains of their loved ones at home for different reasons: cultural beliefs; religious sentiments; to prevent illegal sales of contested landed properties by wayward, prodigal sons or relatives (thus, the burial site serves as social insurance); as a memorial; as a statement of class or high standing in society etc. But rapid population growth and industrialization, which have brought with them, higher public health concerns, intense competition for limited space, particularly in urban areas, have necessitated another look at the practice.
Worthy of note is the fact in 2013, the Lagos State House of Assembly passed a bill that outlawed indiscriminate burial of corpses on private property within residential areas in the State. The bill was later signed into law by the then Lagos State Governor, Mr. Babatunde Raji Fashola, SAN.
That Lagos Law came as a result of indiscriminate burial of the dead all over the place and in virtually any parts of State. There were instances where people buried corpses on the road or in very improper areas which later required relocation of the corpses during future road expansions or road constructions. This and other reasons, including environmental factors and public health considerations, necessitated action by government to regulate how and where the dead is buried in Lagos. The content and appropriateness of that Law is a topic for another day.
Apart from Lagos, which is quite a recent development, burying the dead at home (in residential areas) is not illegal in many other States in Nigeria, making it perfectly legal.
A Corpse is legally defined as the dead body of a human being. The world over, particularly in Africa, dead bodies especially of loved ones are accorded enormous respect and treatment especially as it concerns the disposal of same. In some customs, dead bodies are disposed by cremation- that is to say burning the dead bodies until it is wholly reduced to ashes; the ashes are collected and stored, or spread over the river or ocean as the case maybe. In Africa, particularly in Igbo land, dead bodies are buried deep into the ground and covered with sand or soils, even after such burial, the graves of such dead loved ones are respected and forms a strong spiritual antenna for “communication” between the dead man and his relations who are still alive.
The Constitution of the Federal Republic of Nigeria 1999 (As Amended) empowers the government of both Federal and States to make laws that are reasonably justifiable in the interest of defence, public safety, public order, public morality and public health. It is pursuant to the interest of the health of the public that a law has been made making it a crime to bury any dead body within any dwelling house or even in public yard or open space in township
Section 246 of the Criminal Code Act, Cap. 77 Laws of the Federation of Nigeria 2004 which is applicable in Imo Sate and indeed in all the States of the South-Eastern, South-Western and South-Southern parts of Nigeria provides as follows:
“Any person who without the consent of the President or the Governor buries or attempts to bury any corpse in any house, building or premises, yard, garden, compound or within one hundred yards of any dwelling house or any open space situate within a township is guilty of a misdemeanour, and is liable to imprisonment for six months”.
Section 246 of the Criminal Code is one of the seven (7) sections contained in chapter 23 of the Criminal Code Act. Chapter 23 of the Criminal Code Act contains what is generally called OFFENCES AGAINST PUBLIC HEALTH
Section 246 of the Criminal Code proscribes or prohibits any person from burying any corpse in the places designated: we have earlier stated that corpse here must be human corpse. The law says that you cannot bury a human corpse inside any house, building, premises, yard, compound, and garden. It continues further that you cannot bury any corpse within one hundred yards of any dwelling house. According to section 2 of the Criminal Code, “a dwelling house includes any building, or structure or part of a building or structure, which for the time being is kept by the owner or occupied for the residence therein of himself, his family, or servant, or any of them: it is immaterial that it is from time to time unoccupied. A building or structure adjacent to or occupied with, a dwelling house is deemed to be part of a dwelling house if there is communication between such building or structure and the dwelling house, either immediate or by means of covered or enclosed passage leading from one side to the other but, not otherwise.”
Where there is any open space situate within a township, it is a crime to bury any human corpse within that open space. The only time you can bury any human corpse in any of the aforementioned places, is if you first obtain the consent of the president or governor. The reason for seeking the consent of the Governor seems to be, to enable the relevant health departments of the government assess the health implication of the burial in such place regard being hard to population density. It equally seems that the cause of death of the deceased may be taken into consideration is granting such consent.
The cause of death is relevant here because a person who died of highly communicable disease like Ebola may still be a danger to people dwelling within the neighbourhood of his burial place.