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The issues on Anambra funeral control law
A Partner at Punuka Attorneys and Solicitors, Nnamdi Oragwu, examines the new Burial Law of Anambra State. The law bars the erection of obituary banners or posters, prohibits the display of caskets for sale, bans wake-keep of any kind, and limits mourning period, among other provisions.
In May 14, 2020, Anambra State Governor Willie Obiano assented to the “Anambra State Burial/Funeral Control Law, 2019”, which imposed strict restrictions on the modality of burials in the state.
The purpose of the law is not clearly stated. The preamble to the new law only states that it is “A law to control burial/funeral ceremonial activities in Anambra State”. This is not much help in its literal meaning. However, in considering the prevailing circumstances under which the law was passed, the purpose may be found.
Over the years, there has been an upward spiral in the cost of funeral ceremonies in the state based on the elaborate activities and show of affluence in such ceremonies. People with limited resources have had to incur great liability and debt in an effort “to meet up”.
Also, it had contributed to the youth becoming more focused on material wealth without any concern on the source and upright living which has led to desperation for wealth culminating in a rise in criminal tendencies.
We can safely surmise then that the law was passed to refocus the people and protect them from unnecessary burdens in the burial process.
This law has since sparked uproars from both indigenes and non-indigenes alike. Certain aspects of the law have generated great interest, such as.
Section 5(1) restrains the erection of billboards, banners or posters.
Section 6(1) disallows the deposit of corpses in a mortuary beyond two months after death.
Section 7 bans the blocking of roads without permission of the Local Government Authority.
Section 8 is against the display of caskets for fabrication and sale.
Section 11 restrains any second funeral rites after burial.
Section 13(1) disapproves of any wake-keep of any kind. While 13(2) and (3) allows vigil mass/ service of songs/religious activity prior to burial not exceeding 9 pm, without food or drink, live band and cultural entertainers.
Section 14 restricts burial/funeral ceremonies to one day with burial mass /service commencing not later than 9 am and lasting not more than two hours.
Section 16 restricts condolence visits to one day with condolence gift items not exceeding money, one jar of palm wine, one carton of beer and one crate of mineral.
It also bars giving souvenir during the ceremony.
Sections 18 and 27 expressly limit the demands that can be made from a bereaved husband.
Section 19 limits undertakers to six and bars any display by the undertakers during the ceremony.
Section 20 limits the wearing of special uniform/asoebito immediate family members, church groups, Umunna, Umuada and Inyomdi.
Section 21 makes the provision of food and drinks by the bereaved family optional.
Section 24 bars any demonstration by the youth within and around the town/city with the picture of the deceased.
Section 26 prohibits gunshots but allows small canon guns (nkponana).
Section 28 bans the making of brochures except for the order of mass/service.
Section 29 limits the mourning period and practices.
A lot of the provisions may be considered novel and well-intended. Several other aspects of the law merely codified what was already commonplace in various communities within the state.
Interestingly, based on sections 30 and 31 the implementation is largely left to the Town Unions and the individual communities. However, jurisdiction over matters under the law was vested in the Magistrate Court pursuant to Section 36 of the Law.
From community to community, the nature of burial rites differs. The elaborate rites in each community depend on the age, gender and social status of the departed. It may, therefore, not be appropriate to use the coercive instrumentality of the law to impose new but strange ideals and values on a community or people. Law is an instrument of social change. However, its purpose must be clear, commonsensical and appealing to the common sense and or values of the people.
It is respectfully opined that there is no way fixing of the time frames for rites and particularly, in this case, limiting mandatorily what should be presented to a bereaved family will not interfere with individuals, families and community’s choice of how their ceremonies are performed.
If the purpose of the law is to prevent the imposition of obligations, it ought to be limited to that but it must not at the same time restrain an individual’s free will by placing a limit to what can be presented.
Interestingly, the new law makes it criminal to cross certain limits. It is, therefore, lawful to celebrate the dead but criminal to do it too much.
Conviction is specified as punishment in sections 5(1), 6(3), 8(2) and 35 (1) for acts ranging from making posters to obstructing the implementation Committee and even includes keeping a corpse in a mortuary for more than two months
The economic angle
States are run on tax revenue allocated them by the Federal Government. Personal income tax is based on domicile, not on the basis of a state of origin. Many of the Anambra elite even though they have houses in the state are resident in other states and pay taxes in those states.
An opportunistic economic argument that may be advanced is therefore that the only opportunity the state government may have to exert its dues from them is at death as everyone wants to be buried amongst his people even if he did a lot or did nothing for them in his lifetime.
Interestingly, the funeral ceremony industry has become a very thriving industry in the state and a lot of people and businesses are sustained by it. Certain funerals come with massive hotel bookings, engaging food vendors, tailors, logistic companies, photographers, printers, transporters, make-up artists, cultural groups and a host of other workers in the business.
The new law worries about excesses but forgets that these excesses amount to income for people within the state who pay taxes to the government. The ramifications of the impact are far-reaching even if in some cases it may seem frivolous.
For instance, the ban on souvenir at first may seem to impact only on the sales of plastic producers and producers of such items but if it is looked at holistically, it will also impact on the aged or local resident who relies on that channel as the major source of supply for their home utensils and welfare benefits.
There is nothing wrong with the law protecting people from being forced to spend beyond their financial capacities but at the same time what economic benefit will the state derive from prohibiting expenditures by those who voluntarily wish to go that route for whatever reasons they may have.
The right to religion
The new law also limits in several ways the nature of religious ceremonies to be performed at funerals in the state. Section 13(1) disapproves of wake-keep of any kind. Section 13(2) allows vigil mass/ service of songs/religious activity prior to the burial but not exceeding 9 pm.
Section 14 restricts burial/funeral ceremonies to one day with burial mass /service commencing not later than 9 am and lasting not more than two hours. It is difficult to understand how the state will determine the nature of religious worship embarked upon by the citizens.
Section 38(1) of the Constitution of the Federal Republic of Nigeria 1999 provides “Every person shall be entitled to freedom of thought, conscience and religion, including the freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance”.
Every religious group has its own religious practices. An individual that opts into any religion or group has accepted the practices of that group which in some cases are even provided for by some religious authorities outside Nigeria. How does the state by law interfere with this without running afoul of the Nigerian Constitution and the rights of the citizen?
A convergence of law and religion?
Speaking perhaps presumptuously for the Catholic Church, the writer – as a practising Catholic opines that there are indeed several areas or points on which the new law and the Church agree. For instance, the ban on brochures was already imposed by the Catholic church in some parts of the state even before it was now codified in the new law. On these common areas, there will be no difficulties or challenges in enforcement.
Reform of taxation law rather than criminalise burial practices
There is no overriding reason justifiable under a democratic society for the criminalisation of any conduct in relation to burial practices and celebration under the new law, at least based on its expressed purpose (excessive spending). There is no basis for conviction under the law based on its purpose. If excessive spending is a major issue, the EFCC Act 2004 in Section 7(b)has made adequate provision to deal with people living above their means.
The writer advocates for taxation as a better alternative to achieve the objectives of the new law. However, even taxation as an alternative must be well planned and articulated if not it will have serious legal hurdles that can stifle it as has happened to some tax laws.
The ban on billboards, posters and brochures could rather be regulated by a State Advertising Agency for a fee. Also, the state Library can also regulate and register and then store copies of brochures for a fee as part of their value-added services, and this would also aid in archiving the history of the town.
The Lands and Health Ministries may also consider some approvals and payments for the conduct of burials outside cemeteries within the state, even though this may open fresh arguments on peoples’ cultures and their right of choice of location to bury their dead. Also, the provisions on the practices against widows may seem laudable but the outlined practices even without the law could be declared unconstitutional by the courts for being inhuman in the first place.
Finally, the limitation of the number of undertakers and what they are allowed to do seems rather unreasonable and in restraint of that trade. Rather permits and licensces could be imposed for their performances.
The intentions of the Anambra State Government might be noble and in line with the purpose of good governance as several aspects of the new law are without doubt commendable. However, the Anambra State Burial Law has some flaws which will neither achieve the best interest of government nor allow the citizens to freely exercise their rights in the state. There is still a lot of work to be done and amendment of the law might be the most appropriate step rather than have the whole law declared unconstitutional if the law is challenged in court.
The issues on Anambra funeral control law