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Official
Anglican Church wins cases: Kunonga claims dismissed - Court Watch
21/2012
Veritas
November 22, 2012
Ruling
For the Official Anglican Church and Against Kunonga Camp
On Monday 19th
November the Supreme Court decided two appeals in favour of the
Anglican Church of the Province of Central Africa ["the Church"]
– and against breakaway former Bishop of Harare Nolbert Kunonga
and his adherents. The Church has at last, after a five-year legal
battle, obtained a final court order confirming its legal right
to possession and control of the Church’s property in Zimbabwe
– and putting an end to the claims of Dr Kunonga and his adherents
to Church property. [The background to the appeals was described
in Court Watch 20/2012
of 24th October.]
The
Meaning of the Decision
[Note: "the
Church" refers to the Church of the Province of Central Africa
– the long-standing "official" Anglican Church]
The effect of
this decision is to grant the Church an order:
- prohibiting
Dr Kunonga from claiming to be the Church’s bishop of Harare
- prohibiting
Dr Kunonga and his "board of trustees" from:
- claiming
to be office bearers in the Church
- accessing
and operating the Church’s bank accounts
- working
or doing business from any of the Church’s cathedrals, churches,
chapels and other immovable property
- ordering
Dr Kunonga and his "board of trustees" to surrender
all the Church’s movable assets, including motor vehicles,
to the Church
- ordering
Dr Kunonga and the members of his "board of trustees"
to pay the Church’s legal costs in both the High Court and
the Supreme Court cases.
The Supreme
Court’s decision was written by Deputy Chief Justice Luke
Malaba. Judges of Appeal Vernanda Ziyambi and Omeerjee concurred.
It was read out in open court on Monday 19th November by Justice
Omerjee. [Full text of judgment available from veritas@mango.zw]
Justice
Hlatshwayo’s Decisions both Overturned
Both the appeals
were against decisions handed down in the High Court by Justice
Ben Hlatshwayo awarding control of Church property to Dr Kunonga
and his "board of trustees" notwithstanding their breakaway
from the Church, The Deputy Chief Justice said the question to be
decided was whether those people who had been members of the Board
of Trustees for the Diocese of Harare [Dr Kunonga and his adherents]
relinquished the right to control the Church’s property on
21st September 2007 [the date they broke away from the Church].
The Deputy Chief
Justice said that the judge had gone wrong when he ruled that Dr
Kunonga and his "board of trustees" had continued to
be members of the Church and retained their former rights to control
Church property. He had also erred in relying on the Church’s
failure to take "disciplinary action" against them.
The Church could not, said Justice Malaba, take "disciplinary
action" against persons who no longer belonged to it. Both
Justice Hlwatshayo’s decisions were accordingly reversed.
Kunonga
Camp Created a Schism
The Deputy Chief
Justice, disagreeing with Justice Hlatshwayo’s interpretation
of what had happened, said he had overlooked aspects of the evidence
led in the case. After a detailed analysis of this evidence, Justice
Malaba ruled that in September 2007 Dr Kunonga and those following
him had voluntarily withdrawn from membership of the Church. In
so doing, they had lost the right to possess and control Church
property.
Their action
in establishing a separate church, with a doctrinal position on
homosexuality differing from that of the Church, showed that they
had "separated themselves automatically from ... and ceased
to form part of" the Church. These actions had created a "schism"
– defined as "the separation of a church into two churches
or the secession of a group owing to doctrinal, disciplinary differences"
and, said Justice Malaba, "a person who is responsible for
the creation of a schism cannot be heard to say he or she has not
withdrawn membership from the former church".
Summing up,
Justice Malaba said: " From all the circumstances of the dispute
between the Church and Dr Kunonga and his adherents, it is clear
that they constituted the seceding party. They broke away from the
Church citing irreconcilable differences on the question of tolerance
of homosexuality … It is common cause that the property belongs
to the Church. It has a right to an order for vindication of its
property from possessors who have no right to have it. The learned
Judge was wrong in giving Dr Kunonga and his followers the right
to possess and control the property of the Church without its consent.
They had no right to continue in possession of the congregational
buildings when they had departed from the fundamental principles
and standards on which the Church is founded."
Contents
of the Judgment
Justice Malaba’s
judgment is well worth reading by anyone interested in the story,
not only lawyers. It goes into the whole question most thoroughly.
- It gives
a history of the Church of the Province of Central Africa, showing
that legally the Church has a Constitution with which all members
must comply and that under this Constitution the Church is headed
by an Archbishop. All Church members, including Bishops, are bound
by the Constitution to obey the lawful directions of the Archbishop.
- Ownership
of Church property in the whole Province is owned by the Church
but administered through separate Boards of Trustees in each diocese,
one of who is the Bishop of the Diocese.
- Debate on
Homosexuality Dr Kunonga and his followers insisted that the Church
should not even allow homosexuals to worship God in the Church
and that Church members should not associate with homosexuals
or anyone who supported with or sympathised with them. The Church
doctrine states that "The Church of this Province believes
that marriage, by divine institution is a lifelong and exclusive
union and partnership between one man and one woman. Its Law and
regulation are based on this belief." It also considers
all men and women as God’s children and that homosexuals
remain human beings entitled to be treated with dignity as long
as they do not practise homosexuality in Church or against the
law.
- Steps taken
by Kunonga to secede - On 4th August 2007 at a diocesan meeting
Dr Kunonga and his adherents resolved to secede from the Church
over the homosexuality issue. In a letter dated 21st September
Dr Kunonga wrote to the Archbishop formally withdrawing the Diocese
of Harare from the Church.
The Church’s
formal response on 16th October was:
- that under
the Church’s Constitution the Diocese could not be thus
withdrawn from the Church
- that the
Church accepted that Dr Kunonga and his supporters had by their
letter "severed relationship with" the Church
- to declare
the position of Bishop of Harare vacant, and to appoint a Vicar-General
pending installation of a new Bishop
- to direct
the immediate surrender of all Church properties and assets to
the Vicar-General.
Kunonga replaced
- On 7th November the Church appointed Rt Rev Sebastian Bakare as
Acting Bishop of Harare until the election of a substantive Bishop.
On 20th December the Church revoked Dr Kunonga’s pastoral
licence.
Kunonga’s
formation of a new church - Dr Kunonga and his followers did not
surrender possession of Church property. And on 12th January 2008
they formed a new church called the Anglican Church of the Province
of Zimbabwe, with Dr Kunonga as archbishop and five dioceses headed
by bishops consecrated by him. The Kunonga camp’s refusal
to surrender Church property resulted in five years of litigation
described in Bill Watch
20/2012 of 24th October, culminating in the appeals to the Supreme
Court.
Comment
The Supreme
Court judgment confirms that the Church throughout acted in accordance
with its Constitution and Canons [church laws]. It was Dr Kunonga
and his adherents who did not.
It is regrettable
that it has taken so long for the matter to be resolved –
although the Supreme Court was commendably prompt in arriving at
Monday’s decision less than a month after hearing the appeal
on 22nd October. But earlier stages in the litigation took too long
in both the High Court and Supreme Court.
It is also regrettable
that Dr Kunonga and his adherents refused to comply with Justice
Makarau’s carefully-crafted early January 2008 decision –
subsequently endorsed by other judges – that Church premises
should be shared for purposes of worship pending final resolution
of the dispute. Instead, frequently resorting to violence or with
police assistance, they prevented Church members from using Church
property and seized de facto control of many properties from Church
loyalists.
Remaining
Questions
Getting back
the properties - The Church’s Bishop of Harare, Chad Gandiya,
who took over from Acting Bishop Bakare, has expressed the hope
that those in occupation of Church property will now voluntarily
relinquish it. Where this does not happen, it may be necessary for
the Church’s lawyers to obtain eviction orders from the High
Court. As with any court order in a civil case, eviction orders
would be carried out by the Deputy Sheriff – and the police
would be under a constitutional and legal duty to ensure that the
Deputy Sheriff is allowed to give effect to the evictions. A press
report has quoted police Commissioner-General Chihuri’s as
giving a non-committal response to a question on police readiness
to assist ["I do not belong to that church"]. If correctly
quoted, this is disquieting, bearing in mind the police support
enjoyed hitherto by the Kunonga group.
Minister of
Education’s offer of assistance - Many properties are involved,
ranging from churches and rectories in over 70 parishes, to missions
and an orphanage, and hundreds of schools. The Minister of Education
has pledged to support the Church in the renovation of schools which
have been allowed to run down or converted to other uses under the
Kunonga regime.
The position
in Manicaland diocese - Strictly speaking, the Supreme Court’s
decision applies only to Church property in the diocese of Harare.
But it is a powerful precedent for deciding any corresponding case
in the same way. As mentioned in Bill Watch 20/2012, there was a
separate High Court case concerning the position in the Manicaland
Diocese where former Bishop Jakazi followed the Kunonga lead. In
that case – anticipating the Supreme Court by two and a half
years – the judge ruled Mr Jakazi had voluntarily left the
Church and had no rights to its property or to take part in its
affairs. Mr Jakazi appealed, but his appeal was "struck off
the roll" last month for failure to comply with the rules
of court. As this was not a final dismissal, Mr Jakazi has since
applied to the Supreme Court to have his appeal reinstated. To succeed
in this he must, among other requirements, convince a Supreme Court
judge that his appeal has a reasonable prospect of success –
a formidable task indeed, given Monday’s resounding unanimous
decision against the Kunonga camp on identical facts. Meanwhile,
the May 2010 decision that Mr Jakazi that has no rights to Church
property, or to take part in its affairs is fully operational, because
currently there is no appeal in existence.
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