Non-Justiciability of Religious Disputes: A Ugandan Case Note

21 November, 2023

In this case summary, Mark Hill looks at an interesting judgment from Uganda on the limits of the secular courts’ jurisdiction over the internal affairs of Churches.

Non-Justiciability of Religious Disputes: A Ugandan Case Note

21 November, 2023

In this case summary, Mark Hill looks at an interesting judgment from Uganda on the limits of the secular courts’ jurisdiction over the internal affairs of Churches.

Archbishop of Uganda v Joyce and others HC-17-CV-CS-0034-2023, a first-instance decision of the High Court of Uganda delivered at Luwero on 25 October 2023 in which the Hon. Justice Dr Flavian Zeija delivered a short but significant ruling, is likely to be of interest to scholars of law and religion and to readers of this blog in particular.

The House of Bishops of the Anglican Church of Uganda met on 3 April 2023 and elected the Reverend Canon Godfrey Kasana as the fourth bishop of the Diocese of Luwero (sometimes spelt Luweero) and resolved to have the consecration and enthronement on Sunday 16 July 2023 at St Mark’s Cathedral, Luwero.

On 8 May 2023, prior to the scheduled consecration, a petition to nullify the election was submitted to The Most Reverend Stephen Samuel Kaziimba Mugalu, Archbishop of Uganda. The petition alleged that Canon Kasansa was unworthy of episcopal office, being a serial adulterer, and having fathered at least one child outside marriage. The House of Bishops considered the petition on 28 June 2023 and nullified the election of Canon Kasana, inviting fresh nominations for the vacant see.

Various supporters of Canon Kasana brought a civil suit against the Archbishop in the High Court of Uganda, seeking a declaration that the nullification was null and void, and effectively inviting the court to order specific performance of the consecration. The Archbishop contested the validity of the proceedings and made an application to have them struck out. The matter was determined on affidavits served on behalf of the parties, which also raised a number of procedural issues.

Justice Zeija found the proceedings had been brought against the wrong respondent. The decision to nullify the election, as the plaintiffs well knew, had been taken by the House of Bishops. Therefore, he concluded, “The case was … brought against a wrong party and it stands no chance of success against [the Archbishop]”.

More significantly, Justice Zeija found that the civil court lacked jurisdiction to set aside the nullification of the election as this would amount to an interference with a religious question and a violation of the rules, regulations and traditions of the Anglican Church of Uganda.

He referred to Rev Charles Odeke Akunya v Registered Trustees of Church of Uganda (HCCS No 305 of 2020) and Rev Canon Cyrus Adiga Nakari v Rt Rev Sabino Ocan Odoki (HCSS No 2 of 2017) and cited Justice Mubiru:

“… the courts may refrain from adjudicating purely religious matters, save where the right to property or to an office depends on the questions as to religious faith, belief, doctrine or creed as the courts may be handicapped to enter into the hazardous atmosphere of religion.”

He remarked that Justice Mubiru “declined to enter the murky waters of religious doctrines”.

Justice Zeija identified a general principle that religious controversies are not the proper subject of civil court enquiry, noting Serbian E Orthodox Diocese v Milivojevich 426 US 696, 713 (1976). He summarised the position as follows:

“It is therefore taken as a constitutional gospel in all commonwealth jurisdictions and also the United States that courts have no business handling religious questions. In other words, courts should not resolve cases that turn on questions of religious doctrine and practice.”

Making reference to Perry Dane, “Omalous” Autonomy (2004) BYU Law Review 1715, 1733-34, he went further and said:

“Courts will dismiss claims that hinge on religious questions even if no other religious institution is waiting in the wings to resolve the religious dispute.”

Justice Zeija pointed to Article 29 of the Constitution of the Republic of Uganda, which provides for freedom of worship, commenting: “Once you subscribe to a certain faith, you must go by its tenets”. He noted that the Anglican Church of Uganda has certain canons it follows. Without a doubt, he states, the canons provide for how a bishop is appointed and for how disputes relating to the election of bishops are resolved:

“Courts cannot appoint a bishop for the Church. That is a spiritual matter for which courts cannot claim to be competent. The Anglican Church in Uganda has all the necessary bodies to resolve such disputes.”

Accordingly, the proceedings were dismissed as lacking merit and not tenable at law. Each party was ordered to pay their own costs “to promote reconciliation in the church”.

The underlying principle of non-justiciability of religious disputes was reinforced recently in the United Kingdom Supreme Court in Shergill & Ors v Khaira & Ors [2014] UKSC 33.

Although the judgment does not descend into details of the specific canons of the Anglican Church of Uganda, the clear inference, unsurprisingly, is that they are consistent with the Principles of Canon Law Common to the Churches of the Anglican Communion (Second edition, 2022), which include the following:

Principle 36: Admission to the office of diocesan bishop

  1. Election to the office of diocesan bishop is carried out by an electoral college or other such body, which may consist of representatives of the episcopate, clergy and laity.
  2. An episcopal election may be challenged on substantive and procedural grounds by such persons, in such manner and to such extent as is provided by law.
  3. The authority to confirm or reject the election of a bishop vests in an archbishop, episcopal assembly or other competent lawful authority.

I am grateful to my friend and colleague Dr Faith Kabata of Kenyatta University, Nairobi, for supplying me with a copy of the judgment.

The piece was originally published in Law & Religion UK, 21 November 2023.