Mbabazi v Church of Uganda Provincial Assembly & Another (Miscellaneous Cause 229 of 2023) [2025] UGHCCD 11 (24 January 2025)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **[CIVIL DIVISION]**

### **MISCELLANEOUS CAUSE NO. 229 OF 2023**

#### **PIERRE MBABAZI NYETEGYEREIZE::::::::::::::::::::::::::::::::: APPLICANT**

### **VERSUS**

### **1. CHURCH OF UGANDA PROVINCIAL ASSEMBLY**

# **2. THE BOARD OF REGISTERED TRUSTEES OF THE CHURCH OF UGANDA:::::::::::::::::::::::::::::: RESPONDENTS**

#### **BEFORE: HON JUSTICE SSEKAANA MUSA**

#### **RULING**

This is an Application brought under the provisions of Section 36 Judicature Act (as amended), Section 98 CPA & Rules 3, 6, 7 & 8 of the Judicature (Judicial Review) Rules 2009 for the following reliefs:-

- *1. An order of mandamus issue directing the Respondents to constitute the Provincial Tribunal to hear and determine ecclesiastical charges instituted by the Applicant against the Bishop of the Diocese of Kigezi, Rt. Reverend Gaddie Akanjuna.* - *2. An order of mandamus issue directing that the Respondents set down the case against the Bishop of the Diocese of Kigezi, Rt. Reverend Gaddie Akanjuna for hearing by providing hearing dates or schedules.*

- *3. A Declaration that the Respondents refusal to constitute the Provincial Tribunal it's an infringement on the applicant's right to a fair hearing which is non-derogable as provided under the 1995 Constitution of the Republic of Uganda.* - *4. An award of punitive and exemplary damages be made to the Applicant for the Respondent's refusal to constitute the Provincial Tribunal.* - *5. Costs of this application be provided for.*

The application is supported by an affidavit by the Applicant, outlining grounds but briefly are that:

- 1. On the 31st day of March, 2023, a one NELSON HABASA instituted a case against Rt. Rev. Gaddie Akanjuna, the Bishop of the Diocese of Kigezi for the willful violation of the Provincial constitution and canons of the Church of Uganda by filing Articles of presentment of the ecclesiastical offence. - 2. The Rt. Rv. Gaddie Akanjuna, the Bishop of the Diocese of Kigezi is alleged to have committed an ecclesiastical offence to wit; accepting nomination and consequent consecration as Bishop very well aware that he did have the requisite academic qualifications. - 3. On the 31st day March, 2023 the said NELSON HABASA requested the leadership in the Respondents to constitute the Provincial tribunal to hear and determine the aforementioned case in terms of the Church of Uganda Provincial Constitution and canons, the corpus of ecclesiastical law of the Church of Uganda. - 4. Following the Respondents' failure to constitute the Provincial Tribunal, M/s Lawgic Advocates issued the Respondent a notice of

intention to sue on 8th May, and demanded for the immediate constitution of the Provincial tribunal.

- 5. In response to the notice of intention to sue, the Respondents' through its principal legal advisor, the Provincial Chancellor in a letter dated 17th May, 2023, acknowledged receipt of the articles of presentment and stated that the Provincial Tribunal was not yet duly constituted and arrangements were being made to constitute it before the end of July, 2023 after which hearing schedules shall be communicated. - 6. By the end of July, 2023, the Provincial Tribunal had not yet been constituted and no hearing schedules had been availed by the Respondent which prompted the Applicant to formally request for hearing schedules in a letter dated 15th August, 2023. - 7. The Respondents responded to the Applicants request for hearing schedules in a letter dated 21st August, 2023 in which it summarily dismissed the Applicants efforts to be availed hearing schedules on the basis that the said NELSON HABASA had withdrawn his petition and the new petition filed by the Applicant instead was irregular and illegal therefore the Provincial Tribunal had nothing to adjudicate upon. - 8. The Respondents exercise quasi-judicial functions by virtue of the Provincial Constitution and canons that provide that the Provincial tribunal shall be the court of first instance for the trial of charges against a Diocesan Bishop who is alleged to have committed an ecclesiastical offence.

9. The Applicant has exhausted all internal mechanisms and all efforts to have the Provincial tribunal constituted to hear the charges against Rt. Rev. Gaddie Akanjuna to no avail.

The Respondents filed an affidavit in reply through REV. CANON CAPTAIN WILLIAM ONGENG, the Provincial Secretariat to the respondent stating that;

- 1. That Rt. Rev. Gaddie Akanjuna did not act in committee or any ecclesiastical roles as he was not part of the Nominations Committee and or the House of Bishops which elected him as Bishop of Kigezi Diocese. - 2. That his duties include implementing the decisions of the Provincial Assembly, Provincial Assembly Standing Committee, and carrying out general administrative duties, and also acting as a liaison between the Province and the Dioceses. He is also responsible for receiving court documents against the Church of Uganda and its officials. - 3. That the Applicant is a member of the Church of Uganda and a practicing Anglican is not within the Provincial Secretary's knowledge. - 4. The **Provincial Constitution Article 13.6**, which requires a candidate to have a degree and an additional diploma in theology, and states that Rt. Rev. Gaddie Akanjuna had these qualifications and was qualified to become a Bishop. - 5. That the Canon 3.7.22 of the Provincial Canons regarding postgraduate diplomas is contradictory and in conflict with the Provincial Constitution and its Canons, and the Provincial Constitution overrides the Provincial Canons.

- 6. The request for the Respondent to constitute a Provincial Tribunal is misplaced as the Respondent is not the organ of the Church mandated to do so by the Constitution or the Canons. - 7. The Respondent has no constitutional mandate to constitute a Tribunal and while a Notice of Intention to sue was issued, it was directed to the wrong party. - 8. The Provincial Tribunal was set up by the Church of Uganda after a Notice of Intention to Sue was served on May 17th 2023 and was set up under **Minute 26/PASC3/PFH/JUNE2023 (a)** of the Provincial Assembly Standing Committee which was made under **Article 17(8)** of the Provincial Constitution. - 9. The Provincial Chancellor was served with Amended Articles of Presentment on August 15th 2023, and a letter was sent on that day requesting the documents, as well as, a copy of the Amended Articles of Presentment were included in the documents provided to the applicant. - 10. The Provincial Chancellor responded to the Amended Articles of Presentment, by letter dated 21st August 2023. The Provincial Secretary states that the letter and Amended Articles of Presentment have never been served on the Provincial Secretariat, which is the designated office for receipt of all court documents. - 11. That it is my evidence and understanding that the Provincial Assembly, the 1st Respondent here in, is not a legal entity capable of suing or being sued in its name. - 12. That under the Provincial Constitution and Canons of the Church of Uganda, the Provincial Assembly does not constitute a Provincial Tribunal.

- 13. That I am advised my lawyers Agaba and Co. Advocate, whose advise I take to be correct that this Honourable Court cannot issue an Order for Mandamus against Provincial Assembly to constitute a tribunal because; - (a)A Tribunal has already been set up and therefore this Application is moot; - (b)The Provincial Assembly has no statutory mandate to constitute a tribunal.

### **The following Issues were raised for determination**

- *1. Whether the application is amenable for Judicial Review?* - *2. Whether the failure by the respondents to constitute the Provincial tribunal and provide hearing schedules for the charges levied against Rt. Rev. Gaddie Akanjuna is unjustified, unreasonable and illegal.* - *3. What remedies are available to the parties?*

# *The legal representation.*

The applicant was represented by *Counsel Munanura Gibson* while the respondents were represented by *Counsel Mutayomba Geoffrey*.

The parties duly filed the submissions which I have duly considered in this application together with the affidavit evidence for both parties.

### *Preliminary Consideration*

The applicant filed a notice of withdrawal in this matter which was brought to the attention of court in the course of determination of the case. It is in the spirit of reconciliation between the parties that the court should consider and encourage the out of court settlement. This court has found it necessary and prudent not to consider the gist of the dispute in order to allow the applicant, the respondents and other believers to forge a way forward in the dispute beforehand through their established mechanisms of determining their religious disputes or conflicts.

# *Determination of the application.*

# *Whether the application is amenable for Judicial Review?*

### *Analysis*

The respondents have contended that the dispute is moot as the Provincial Tribunal which the applicant sought to establish has already been set up. The Provincial Constitution prescribes members of the Provincial Tribunal to include the Provincial Chancellors who shall be the chairman of the Tribunal, six Bishops nominated by the House of Bishops, one clergy and one lay person appointed by the Archbishop.

The Provincial Tribunal is mandated as a court of first instance for the trial of any Bishop who is alleged to have committed an ecclesiastical offence. The Church should ensure that their grievances are promptly addressed through the established channels to limit potential litigants filing religious disputes to the courts of law unnecessarily.

The Provincial Tribunal should give effective guidance in their decisions in order to avoid making the courts as appellate divisions of the religious disputes. Delays in determination of any disputes escalates the disputes and strains the operations church leadership and its followers which may result in breakaway factions and further acrimony.

Since the Provincial Tribunal is already established it should determine the dispute and this court should not interfere in the processes of the church in the dissolution of any disputes within the church.

The court is basically ignorant of the historical beliefs and the reasoning behind it; hence they apply the judicial mind to check the veracity of faiths and beliefs because of which their interpretation is different from the beliefs of devotees. The court has to understand that they are ill-equipped to deal with religious beliefs and practices because of remoteness and lack of familiarity hence should only interfere when any practices seriously damage the constitutional fabric. This makes it the main reason for prohibiting courts from litigating religion because they lack the ability to address religious questions. There is '*limited jurisprudential competence'* to decide such religious matters.

Therefore, courts generally have extracted the prohibition against litigating religion from the '*church autonomy doctrine*' which requires judicial deference to religious institutions *''whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by……church judicatories." See Rt Rev Amos Magezi & 35 Ors v Sendowoza Saight John & 3 Others HCMA No. 811 of 2024*

This application fails and the parties are encouraged to settle their disputes through established avenues.

Each party shall bear its costs.

I so Order

*Ssekaana Musa Judge 24th January 2025*