COURT WATCH 21/2012
[22nd November 2012]
Supreme Court Decides Anglican Church Appeals:
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 email@example.com]
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.
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.
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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