The Sunday Mail
Different cultural backgrounds shape people’s practices, behaviours, norms and attitudes towards life situations.
There is one common phenomenon happening at funerals.
Some burials are delayed as in-laws demand lobola for the deceased.
Readers might at one point have been involved in this either as victims, perpetrators or observers.
Some relatives might find it prudent to settle scores during funerals, with others seeking to gain leverage over some underlying boiling issues affecting the family.
Certain elements of extortion then become apparent at such gatherings.
The practice is still rife in most parts of the country.
The Criminal Law (Codification and Reform) Act makes it a criminal offence for a person to induce or compel the payment of any money or property as damages or as marriage compensation in respect of the deceased person’s body on any land or premises occupied by another person or hinders or prevents the burial of the deceased.
The Act states that if a court convicting a person of such extortion is satisfied that as a result of the crime, money or property was paid to the convicted person, the court may order the convicted person to repay that money or property to the person who paid it to him or her.
It is clear from this phrase that the offence is not only committed upon leaving or depositing the body but also the offence is also committed where a person prevents or hinders the burial of the deceased prior to certain conditions being met.
Extortion is defined by our criminal law as intentionally exerting illegitimate pressure on another person with the purpose of extracting an advantage whether for himself or herself or for some other person and whether or not it is due to him or her.
The above clearly highlights how the law deals with scenarios where a relative or relatives who hinder the burial of a deceased person to gain advantage over a certain situation might find themselves criminally liable.
That having been placed on record, many would agree that they have witnessed, have taken part whether materially or immaterially or have been at the receiving end.
Usually, these situations occur when say, a man lives with a woman or cohabitates with her without formalising the union with the her relatives, especially her parents and then she dies.
This might include living with a woman without paying what is commonly referred to as lobola (the bride price) to her relatives. In other cases, lobola might have been paid but the relatives might be unhappy over the manner in which their daughter, sister, mother or grandmother passed away or was treated during her lifetime.
All hell breaks loose when the woman in one of the above scenarios passes away and the in-laws thwart the burial of the deceased claiming what they believe they are entitled to from the son-in-law. This might even go to the extent of the in-laws refusing to attend the funeral as a way of imposing sanctions, fully knowing that their absence will make the burial process difficult.
Whilst it is true and understandable that emotions and hard feelings take priority in such situations, one cannot also ignore the fact that it is criminal to use such actions as leverage to gain advantage in a process compelling the other party to part with their money or other valuables.
This falls under the category of blackmail which the very proclamation of the above criminal offence sought to curb. When laws are created, the idea is to bring order and a clear set of rules to follow in any given situation.
All the same, the question that arises is how far should a cultural practice be allowed to evolve and at what rate?
This is because it would be futile to believe that people will easily do away with their cultural beliefs.
However, what cannot be disputed is that despite the existence of such criminal sanctions awaiting any wrongdoer, the practice is still rampant. This can be mainly attributed to the fact that the nature of the practice itself is quite complex and delicate and affects the personal relations of the two competing parties.
For example, it becomes almost impossible for a man (son-in-law) to report his father-in-law or in-laws to the police for extortion. This hesitancy can be due to the cultural background and the mere repercussions attached to that.
Nonetheless, current trends indicate that the law shuns such acts as evidenced by recent decisions in the case of S v Mhosva HB-52-15 heard this year by the High Court of Zimbabwe where it was held that the action of depositing the corpse to induce payment prior to burial is in itself extortion.
Also, the action of hindering burial so as to induce payment is also extortion.
The above case interpreted and followed the law in its true spirit. But coming back to the practical realities of life, the practice of dumping bodies or refusing participation in burials has worked wonders for others and continues to be regarded as an effective weapon for in-laws to collect what they believe is due from their son-in-law before burial can take place.
Some fathers-in-law will tell you that this is their only opportunity to assert their authority and claim what “rightfully belongs to them”. Well, that being said, the morality of the issue is of essential relevance in such scenarios but one realises that where money matters are involved, morals are discarded.
Without belittling or taking anything away from the laws of the land which the writer swore to uphold, the continuous practice of this “offence” can be credited to the fact that currently, our laws do not allow a father-in-law to sue his son-in-law for lobola except in exceptional rare cases.
Already there are reported cases that decided that due to the emancipation of women from the Legal Age of Majority Act, a father does not have the capacity to sue for lobola over a daughter who herself has attained legal capacity.
Now given the above predicament, surely a father-in-law would rather dare take the risk and commit the offence. Indeed, who would blame him considering the fact that you, him and this writer fully knows that it is probably his last opportunity to see the son-in-law, who could disappear for good after the funeral.
It would be interesting to know how women themselves view this kind of cultural practice, whether they support it or not. The question that quickly comes to mind is how does it serve a woman’s best interests when even in her death, her dignity is taken advantage of for financial gain which she would not even live to see or enjoy. Therefore, coupled with the above, even the enforcement of the law becomes difficult considering the diverging minds.
It is common cause that in the African tradition, grave selection is another important element of the funeral ritual. Known in the local dialect as kutema rukawo or rather kutema rukarwi involves delivering one hoe dig at the chosen grave site.
Today, the act is still prevalent in the village, though it is done by someone of paternal lineage to the deceased. Thus, it becomes complicated where such an important practice is abandoned by the in-law because a police report against them has been made.
Granted, other sections of the society might not appreciate or uphold these burial processes citing them as mere delusion or superstition but for those who believe in them, it becomes a serious bone to chew.
These are some instances where such laws that are an offspring of the general law conflict with customary rites.
But after all has been said and done, it is important for law abiding citizens to follow and comply with the laws that are in place.
As much as it is a bitter pill to swallow for some, the fact is that one cannot place ransom over a deceased person’s body to blackmail other people during bereavement. There are other ways in which people, as families in their communities, can resolve this or find common ground to avoid the occurrence of such despicable acts.
Nonetheless, a word of caution has to be spelt out to all intending men that in as much as the law is there to curb this malpractice, would it not be prudent to make good and formalise relations with your in-laws to avoid being a victim of such an act one day.
Coddy Fungai Nyamundanda is a legal practitioner who writes in his personal capacity. Feedback: [email protected] mailto
