Burying Otieno: The Politics of Gender and Ethnicity in Kenya


Stamp, Patricia.1991.”Burying Otieno: The Politics of Gender and Ethnicity in Kenya”. Signs: Journal of Women in Culture and Society 16 (4): 808-45.

Author: Patricia Stamp


This article reviews the relationship between women and the state in Africa through the case of  Wambui Otieno, a Kenyan widow who fought for the right to bury her husband’s remains where the couple lived, rather than according to Luo custom. Wambui's lawyers argued that Otieno had, through his choices of partner, Christian beliefs, life-style, and residence, forsaken tribal custom for a modern life and that customary Luo burial law therefore had no jurisdiction in his case; rather, Kenya's common law applied. Otieno's clan asserted that, on the contrary, Otieno's birth and upbringing as a Luo was paramount. Kenyan legal statutes do not spell out clearly which legal system takes precedence in a clash between common and customary law; the courts chose to come down on the side of "custom" as defined by the clansmen. Their decisions set back women's rights and the development of a national, progressive jurisprudence in Kenya, while fanning the country's ethnic tensions. During the five months that the burial issue dominated the headlines, Wambui found herself castigated by the presiding High Court judge for her testimony, vilified by national politicians and the press, and rendered a folk villain for over a million Luo Kenyans. Stamp's article focused on the place of customary versus common law, the primacy of ethnicity versus national identity, and the power of patriarchy over women's rights in Kenya. How a widow could experience such an ordeal in con-temporary Kenya, why there was no effective feminist challenge, and what the case meant for the country's politics are the subject of this article.


“The first theme is the dynamic nature of "custom" and "tradition." Far from being timeless essences called from the precolonial past, they are potent inventions of the present, constructed to serve the interests of protagonists on the modern political stage." (810)

“Common law, on the other hand, underpins women's strivings for rights in the contemporary state." (811)

"Relationship between the governing regime and other politically powerful elements of society: "Collaborative hegemony - the state cannot rule by repression alone, hence ideological domination is one of its most important aims […] such domination relies on the vital link between state power and the realm of culture and family.” (811)

"Gender relations are central to lineage and clan politics, but under the increasingly stringent and competitive circumstances of postcolonial capitalism, patrilineages are becoming more patriarchal, intensifying control over lineage wives and undermining the power and rights to resources of lineage sisters. Another theme central to the analysis of the Wambui case is: “the concrete significance for late 1980s Kenyan politics of struggles over "tradition" and women's place. At the level of ethnic politics, the burial battle created a legitimate vehicle for the promotion of Luo interests, both within the group and vis-a-vis Kenya's other groups. The proper, "traditional" role of wives, mothers, and widows was safer to champion than more overt claims to political power." (814)

“Wambui's defense of her rights according to the principles of common law posed a challenge to every level of Kenyan society: family, lineage and clan, ethnic group, and nation” (815)

“Disputes about custom have been the stuff of village litigation at least since the colonial era; the difference in this case is that for the first time they became part of a national discourse of tradition, with certain contested elements of gender relations and ethnicity established as traditional "facts," available for any other ethnic group to appropriate in future battles involving gender and ethnicity." (825)

"The “new model of the male citizen” that emerged from the case is a man who juggles progress and tradition but fulfills responsibility to father’s tribe first. “In this discourse, the female Kenyan citizen is exemplary only through acquiescence and the submersion of her own interests in those of the patrilineage. The courts made this clear in accepting the clan's argument that "the wishes of a widow and children are relevant if consistent with custom, otherwise they are irrelevant." (826)

“A significant aspect of the clan's court challenge to Wambui's burial plans was its effort to gain control of Otieno's estate the patrilineage was prevented from claiming the estate because all property had been registered jointly in Wambui and Otieno's names." (837)

"Wambui was treated as individual in case, rather than as member of group: “whether her natal lineage or an association of women (even though the clan acted as a collectivity, referring to her as "our wife"). Her experience is symptomatic of a process widespread in Africa: the relegation of women to a private sphere, both in political practice and in imagery. This strategy of privatization supports the co-optation of gender relations and the control of women in the interests of state and patrilineage.” (843)

“The supposedly private world of the family furnishes other opportunities for feminist struggle besides "combative mother-hood." In that women are the linchpins of the patrilineal system, it follows that the withdrawal of their presence, support, or services are deeply significant political acts.” (844)

Topics: Ethnicity, Gender, Women, Gender Equality/Inequality, Rights, Women's Rights Regions: Africa, East Africa Countries: Kenya

Year: 1991

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