Awujale: Our burial law is not against traditional rites, it seeks to preserve them —Ogun AG, Oluwasina Ogungbade SAN

The Attorney-General and Commissioner for Justice, Ogun State, Mr. Oluwasina Ogungbade (SAN), speaks on a number of issues surrounding the controversies that have enveloped the passage of Oba Sikiru Kayode Adetona, the immediate past Awujale of Ijebuland, and the kind of burial that was accorded him by members of his family. He spoke with Deputy Editor, SAM NWAOKO.

THE controversies that have arisen over the burial of the late Oba Sikiru Adetona, the Awujale of Ijebuland are still lingering. It has extended to the closure of markets for one week as part of the traditional rites for the passage of the Awujale. Looking into the future, are there laws that could help the people whose means of livelihood were negatively impacted by such closure of markets?

We cannot divorce this issue of closure of the markets from the larger issues surrounding the passage and the burial of the traditional ruler itself. Essentially, they are one and the same because they all boil down to what traditional rites should be observed when an oba dies. The law, as of today, actually does not take away the right of traditionalists in the burial of the Oba. On the contrary it actually preserves it.

If anybody takes a close look at the law, the law actually says that no person should disturb the burial of an Oba by his family. It also says that anybody who does so will be sent to prison. The law now goes further to say that this is, of course, without prejudice to the rights of those who should or are entitled to perform some rites under the tradition. However, the issue is that those rites must be in the open. And the law has put in place a procedure whereby the traditional council of an area will sit down and determine what those burial rites would be. And I am certain that they will not do it alone, they will do it in conjunction with the traditionalists. After coming to a determination as to what those rites are, they must then register them with the Commissioner for Local Government and Chieftaincy Affairs. That is what the law says. As of today, I am not aware that any Traditional Council or any traditionalist has taken that step.

So, going forward, it is for the traditionalists to actually comply with that law. Those rites could include several things, including for example this closure of markets which you have talked about. But of course at the point of registration, the government will have the right to look at what is being brought to it to say well, this does not fit in with modern times or whether this will also infringe on the right of other Nigerians to go about their daily businesses, their right to movement and things like that.

So, going forward it is for anybody who believes that he has a right under tradition to partake in the burial of an Oba to comply with the law as of today.

The issues are interwoven and they are also touchy because it is culture and tradition. That could be the spur for the Ifa adherents who said they would go to court. You said the threat of a lawsuit by the Ifa Council was “A sheer waste of time and resources.” Which specific statutes or provisions of the constitution gives that legal authority to you as the Attorney-General and the state to approve the burial of Oba Adetona according to Islamic rites?

 Let me clarify my response to the threat by the Ifa Council to institute an action. It is actually regrettable that they are considering or have actually decided to toe that path. Ogun State is noted for religious tolerance of its indigenous people and residents. You have in Ogun State virtually all the major religions: Christians, Muslims and Traditionalists and so far, there has been coexistence in harmony. So, as a government we obviously will not be too happy that a section of the society failed to be satisfied with anything that the Ogun State government is doing.

Having made that point, we also welcome that they have chosen to toe that line, because it is actually a right provided by law that if an individual or government has done something that you feel is wrong or has affected you in any way, the proper thing is to go to court. So if they have chosen to go to court we also welcome it in that sense that they have decided to toe that legal path.

Now, with regards to the issue in controversy, the decision shouldn’t start with Oba’s Law in Ogun State of 2021. It should start with the constitution which guarantees the freedom of thought and of religion. And it is not essentially or basically an Islamic versus Traditionalists’ thing. They are all religions. So, under the constitution, if you are a Traditionalist, you are guaranteed the right to practice your religion. If you are a Christian or if you are a Muslim, it is the same guarantee. What I do not think anybody should or will be able to argue against is the fact that the religion you practice in life will surely not end the moment you die. This is because all religions have practices or rites for basically every stage in life and in death. So if a man has lived all his life as a Christian will he, at his death, be buried as a Muslim? If a Muslim had practiced Islam all his life and when he dies you want to take his corpse to the Anglican Church? Is that how it works?

So, the point I am making is that if you have the right to freedom of religion, will it end upon your death? Of course not. It surely will survive you with regards to everything that has to do with your interest after you are dead. That is one aspect to it and, of course the constitution is supreme above every other thing legally in Nigeria.

Now let us look closely at Section 55 of that law which is what all these things are about. That section opens by saying that no person must disturb the right of the burial of an Oba by his family. Going back a little bit to the constitution which I referred to, you will assume or agree that when a family is burying an oba, they obviously will do so in line with the religion which he practiced when he was alive. So that section criminalises disturbing the burial of an Oba by his family.

But as I have said, this is an area where people have not really bothered to look closely at before making remarks on the matter. The law does not abolish the role of traditionalists, it actually preserves it. And how does it do so? It says that whatever happens, without prejudice to the rights of traditionalists – those who are entitled to carry out those rites but with certain caveats; with certain conditions. The first is that the Traditional Council in that area must come up with the rites which will then be put in the form of a declaration. That declaration will now be registered with the government through the office of the Commissioner for Local Government and Chieftaincy Affairs. When that is done, then we all will know in the open that, okay, these are the rites that will be observed when an Oba dies.

Again, that section does not say that traditionalists cannot also do their rites. But what I seem to understand from what they are saying is that they cannot perform any rite except they do so with the body of the deceased Oba. Well, the law has also put in place a provision that it is a criminal offence to cannibalise or mutilate the corpse of an Oba. I am not saying, and I should not be mistaken as saying that that is what they intend to do. We do not know, and why do we not know? It is simply because they have not complied with the law by registering a declaration which would show exactly what it is they intended to do. So, if we are in the dark, we do not know. They haven’t complied with the law. Will the government now fold its arms and now permit that the law which was passed and signed by the Governor be flouted? The obvious answer will be ‘No’.

Let me also add this, because the angle they are coming from is that the government should have no role in this, because it is a traditional affair. How do obas get to the throne? Do obas get to the throne because traditionalists say they are obas? No Oba can ascend to the throne without the involvement and approval of the government. Now, the throne of the Awujale is vacant. Let me tell you how that throne will be filled. It will start with the local government that will inform the ruling house whose turn it is to produce the Awujale, to convene a meeting where they will nominate the eligible princes within that family. That meeting will be monitored by the Secretary to the Local Government who will then write a report which he will send to the Ministry of Local Government and Chieftaincy Affairs. That ministry will send those papers to the Ministry of Justice for us to vet and approve. If we are satisfied that the process has been complied with, we will now issue an advice to say ‘we approve of this process, let the name of XYZ be forwarded to the Executive Council for the approval of the Government.” That is the process. So, if you cannot even have an Awujale without the say-so or the approval of the government – because that is what the law says; then how can you now say that the government is over-stepping its bounds by trying to put in place laws which will ensure transparency in whatever traditional rites you want to perform after the demise of an oba? No traditionalist can wake up today and say look XYZ is the Awujale. So, if you cannot do so, is it not better for you to comply with what the law has put in place when in any event, you must comply with what the law has put in place before you have the Awujale in the very first place?

It is a bit complicated because of the emotions, and the fact that the Ifa Council too is citing that Part 8 Section 58 (II) of the same law you have explained. How does that provision reconcile with the Islamic burial of the Awujale vis-à-vis the experience of the traditionalists?

That Section 55 (II) says “A traditional ruler shall be entitled to be buried in accordance with the customs and traditions of the land, save however that his body shall not be subjected to any mutilation or cannibalisation.” Now, when you go down to III “Notwithstanding anything contained in this section, it shall be the responsibility of the relevant Traditional Council to determine the customary law and the nature of the traditional burial rites…” We know as lawyers, and I believe it should be clear to everybody, you cannot pick a section of a law in isolation and hold on to it. You will have to read the law together. Section 58(II) says that the oba should be buried in accordance with traditional rites and Section 55(III) of that same section says whatever burial rites you will carry must be determined by the traditional council. Then it goes further to say that it must be registered. So, why are they not saying anything about that?

The truth is that most people have not taken the time to read this law. People just pick one or two things from social media and issue statements. They have not taken time to read the law. I said that this law actually preserves that right, it only says that in exercising that right, these are basically the conditions you must fulfil. You and I have a right to property, don’t we? At the same time, if we acquire that property there are certain conditions we must follow to cement or actualise that right, to protect and preserve it. After you have bought your land, you register it and make sure you get the C of O and some other things. Those are the legs upon which those rights would stand. So it is wrong for them to just hold on to 55(II) without going down to look at 55(II) and 55(IV).

In Ogun State, we have four traditional councils. We have the Remo Traditional Council, the Yewa Traditional Council, the Egba Traditional Council and the Ijebu Traditional Council. These councils are made up of the traditional rulers in those domains. So, what the law expects is that the traditional councils will sit down with the Osugbos or whatever name they are called with respect to the other councils, and come up with the rites which they believe should be observed when an oba is about to be buried. They have not done so. So, what is the controversy about? This law was signed in January 2022. The Awujale passed about a week or two ago. So what kept them from action between when the law was passed and the passing of the Awujale, to ensure that this section was complied with by the relevant traditional council of that area? They took no steps, they could have easily gone to the Traditional Council to say these are the rites that we feel should be performed, please look at it, approve it and get it registered with the government. I am not saying that they didn’t do this, but I am not aware that any such step was taken. Nothing of such has been done. So, the law is clear and people should not twist it.

Looking at it generally with regards to the freedoms guaranteed by the constitution – freedom of religion, freedom of association, etc, vis-à-vis the traditional rites in the state’s chieftaincy law, is there no conflict?

It is actually simple. What the law says in 55(II) is that “A traditional ruler shall be entitled to be buried in accordance with the customs and traditions of the land.” We shouldn’t have a take-off point that the practices of religions are so diametrically opposed or divergent that there must be controversy all the time. That is not where we should start from. If the constitution has given to the late Awujale, to you and I the right to freedom of religion, the law also says that the traditional ruler shall be entitled to be buried in accordance with the customs and traditions of the land. They are not totally at variance, and one way they are not totally at variance is this: Firstly, those traditional rites may not necessarily be in conflict with the religion of the deceased oba. But then, how would we know if we do not know what those rites are? We won’t know. Then, those rites must not necessarily involve the physical presence of the body of the oba. This is my own conjecture. They could, for example, be having their own rites elsewhere and the family of the deceased oba is having their burial according to Islam or Christianity or Hare Krishna etc., elsewhere. It could, for example, be that the closure of markets be one of those rites. But then, how would we know if nothing has been brought to us in black and white? It all comes down to compliance with the law.

Before this law was passed, there was a public hearing and it was debated and eventually, it was passed. A lot of thought has gone into this law, but this is also not to say that all laws are perfect. But when a law has been passed, it remains a law until perhaps the court intervenes or, maybe, it is repealed or something else is passed in its place. But as of today that is the extant law in Ogun State.

The calls for the preservation of the Yoruba heritage are another angle to the issue, especially the issue of cultural cohesion which might be negatively impacted…

Ogun State is one of the states that observe Isese Day on every August 8. I stated earlier that Ogun State prides itself on the religious harmony that exists in the state. This is why I don’t understand why people want this matter to cause some tension or even conflagration in the state. It is absolutely unnecessary.

From my explanations, I hope those concerned would understand that the proposed action would be a waste of time because what anybody would ask is if they complied with the law which says let us know what it is you want to do. The answer will be no. You cannot put something on nothing.

If the Ifa adherents still decide to pursue their case in court, which may not be adversarial, even if it is for further judicial clarification and so on, would the state government through your office support further judicial clarification of this matter?

There would be several options open to us. We might invite them, sit them down and explain to them why we feel that their action is unfounded and why we feel this will not help religious harmony in the state and hopefully, after that explanation they will see reason with us and take steps to comply with the law. If they do not, of course, we cannot force them to take our views. We can only persuade them to take what we believe is better reasoning. If they fail to reason with us, then we will let the courts decide.

Are there other means the state government is deploying to further explain this law and bring the people to understand what it is meant to achieve?

We have done so. A few weeks ago, there was a statement released by the government explaining all these things. This was even before the Awujale passed. We believe we have done enough in terms of transparency, in terms of education and persuasion. But we will not relent because ultimately, our goal is to ensure that Ogun State continues to enjoy the peace for which it is known, and we will not let this minor misunderstanding threaten the peace of the state. We will continue along that path even though we have actually done a lot in terms of enlightenment. Like you said, when it comes to religion, people can be emotional. People find it difficult to put their emotions aside and look at things dispassionately. We quite understand that we are emotional beings. I believe that at the end of the day, reason will prevail.

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