THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CASE No. HCT-00-CV-MA-0282-2003
BEFORE:- THE HONOURABLE MR JUSTICE AWERI OPIO
J U D G M E N T:-
The plaintiffs allege that the defendant has refused and or failed to consecrate and enthrone the Bishop-Elect thereby failing to perform his constitutional duties and that the defendant unlawfully took over Muhabura Diocese as caretaker Bishop. The defence case on the other hand is that the defendant is willing to consecrate and enthrone the Bishop-Elect but he is being prevented by the conflicts that ensured after the election of Bishop-Elect. Further that the defendant lawfully and constitutionally took over Muhabura Diocese as a caretaker Bishop.
During the scheduling conference the following facts were agreed upon by the parties:-
2) That in accordance with the constitution of the Church of the Province of Uganda, and the Diocese of Muhabura , Diocesan Synod on the 11th August 2001, nominated Rev. Wilson Baganizi and Rev. Canon David Sebuhinja to the House of Bishops, in order for it to elect a new Bishop.
3) That on the 5th September 2001, the House of Bishops, in consultation with the defendant, elected Rev. Canon David Sebuhinja as Bishop-Elect of the Diocese of Muhabura in order for the defendant to appoint as required under the constitution of the of the Church of the Province of Uganda and set 25/4/2002 as the date of his consecration and enthronement in the Diocese of Muhabura.
4) That following the announcement of the decision of the House of Bishops, there were representations by members of the laity both in favour and against the decision.
5) That on 24th January 2002, the defendant sought and obtained advice from the Provincial Chancellor, to the effect, inter alia, that there was no error or wrong made by either the Electoral College which nominated the two candidates or the House of Bishops which elected Rev. Canon David Sebuhinja as the Bishop-Elect of the diocese of Muhabura.
6) That following the advice of the Provincial Chancellor, the office of the defendant issued a press release to that effect.
7) That on 29th March 2002, the defendant declared that he was to take over the Diocese as caretaker Bishop, postponed the consecration and enthronement of the Bishop-Elect and on 8th April 2002, asked Bishop Shalita to handover the Diocese.
8) That on 13th November 2002, the House of Bishops re-affirmed their decision electing Rev. Canon David Sebuhinja and set 19th January 2003 as the new date for consecration and enthronement.
9) That on 23rd November 2002, the defendant convened and chaired a Synod in which the enthronement and consecration of the Bishop-Elect was discussed upon which some members walked out in protest.
10) That on 11th January 2003 the defendant again postponed the consecration and enthronement of the Bishop-Elect.
11) That on 7th April 2003 the defendant convened a Diocese Council and appointed Commissaries headed by Canon Muluta who took over the management of the Diocese.
2) Whether the defendant refused to consecrate and enthrone the Bishop-Elect; and
3) Whether the plaintiffs are entitled to the remedies sought.
Another preliminary issue which I would like to dispose of is failure by the defendant to attend court personally to give evidence in proof of his defence. The Learned Counsel for the plaintiff submitted that the defendant had a duty to personally and physically appear and give evidence in proof and support of his defence with or without witnesses.
Having failed to do so the defendant was caught up by the doctrine of adverse inference in that the plaintiffs would be entitled to infer that he feared to appear and give evidence about the allegations against him because he would be discredited in cross-examination.
He cited a number of cases in support of this contention. With due respect, I find the above proposition not only strange but novel. As far as I am concerned, there is no law which obliges either the plaintiff or the defendant to personally and physically appear to give evidence in proof and support of his case. what is crucial is that there ought to be evidence in proof and support of any claim in law.
In the instant case the defence contended that the Archbishop is an institution and that the Archbishop does not act alone. I do agree, DW1 Rev. Stanley Ntagali being Provincial Secretary was the right person to swear affidavit and testify on behalf of the defendant. In any case if the plaintiffs had thought that the defendant’s testimony would assist Court in arriving at a just decision, they should have applied under Order 14 rule 1 of Civil Procedure Rules to have him produced physically by Court. For the above reasons, I rule that the plaintiffs cannot gain any milage in the absence of the defendant to personally appear and adduce evidence in defence. The law does not oblige him to do so. In the same vein I find a litany of cases cited by the Counsel for the plaintiffs irrelevant and or distinguishable.
I now turn to the merit of the case. In an attempt to prove their case the plaintiffs adduced the evidence of four witnesses while the defendant relied on two witnesses.
Whether the defendant lawfully took over Muhabura Diocese as caretaker Bishop:-
As a general background, the province of the Church of Uganda is administered in accordance with the Provincial Constitution and canons made thereunder while various dioceses, Muhabura inclusive have their constitutions which pay allegiance to the Provincial Constitution and canons. At the scheduling conference, the Provincial Constitution and that of Muhabura Diocese were admitted as exhibits.
Article 9 (a) of the Provincial Constitution provides for the functions of the Archbishop as follows:-
ii) Illness of the Diocesan Bishop.
iii) When the Diocesan Bishop is affected by any other incapacity.
iv) Where a Diocesan Bishop does not hand over the office upon attaining the age of 65 years.
Issue No. 2:-
Whether the defendant refused to consecrate and enthrone the Bishop-Elect:-
From the pleadings and evidence on record it is the plaintiffs’ case that the defendant has refused/neglected to consecrate and enthrone the Bishop-Elect while the defendant’s case is simply that he is ready and willing to consecrate and enthrone the Bishop-Elect, but he is prevented by insecurity arising out of the conflicts in the Diocese.
The law which provides for the appointment and consecration of Bishops is found in Article 13 (a) of the Provincial Constitution which states as follows for the shake of clarity:-
13 (b) – Bishop co-adjuter, a suffragen or assistant Bishop.
13 (c) - Bishop by transaction i.e. exchange of sees between two or more Diocesan Bishops.
The term if need be presupposes that appointment may be made of persons who have already taken oath of consecration like the two categories I have mentioned above. It does not mean that the Archbishop had discretion in the matter. I shall return to this point later.
In the instant case all the normal procedures had been complied with. That position was duly confirmed by the Press Release issued by the Provincial Secretary Rev. Canon George Tibesigwa which reads in part as follows:-
Rev. Canon Stanley Ntagali (DW1) testified that after the election of Rev. Sebuhinja as Bishop-Elect, the defendant’s office received memoranda and reports some in favour of the election and others against the election of the Bishop-Elect. There was a memorandum signed by 1002 Christians of Muhabura against the Bishop-Elect (Defence Exhibit D2). There was also a memorandum from Christians of St. Andrews Cathedral Seseme signed by 201 Christians (Defence Exhibit D3). DW1 further cited the Kyamugambi report and Bishop Sinabulya’s report to show the nature of the conflict. He stated that the conflict reached the attention of the desk of the Inspector General of Police who advised that an amicable solution should be found to the conflict. DW1 concluded that the only way forward was to reconcile the two factions of Christians and then arrange for consecration and enthronement of the Bishop-Elect.
Rev. Canon Baker Habimana (DW2) also confirmed that the Bishop-Elect could not be consecrated and enthroned because of the conflict in the Diocese. He stated that the retired Bishop Shalita reported some of the cases to Police and even wrote a letter to the Resident District Commissioner and the Archbishop about the conflict and the likelihood of bloodshed in the Diocese. He also stated that as a result some churches aid parishes like Kyeibumba, Nyakabungo, Gisorora, Matinza and Rwaramba do not have leadership. Those church leaders were thrown out by the faction against the election of Rev. David Sebuhinja as Bishop-Elect. He concluded that as a result of the conflict armed securico guards were now guarding the Diocesan offices, the Bishop-Elect and the retired Bishop whereas before the conflict the Diocese offices were only being guarded by night watchmen who were not armed and retired Bishop and Bishop-Elect were not being guarded at all.
The plaintiffs on their side maintained that the conflict was normal and as such it should not have stopped the process of consecration and enthronement. They maintained that there was no insecurity in the Diocese to warrant postponing the consecration.
From the foregoing it is vivid that the church of the province of Uganda is run in very sound principles and doctrines. First of all the procedure for the appointment of a Bishop must be adhered to. In the instant case, there is no doubt that Rev. Canon David Sebuhinja was properly elected as Bishop-Elect of Muhabura Diocese under Article 13 (a) of the Provincial Constitution. It is also the doctrine of the church as provided by Canon 3:1 that consecration in mandatory before a Bishop can take up an office. It states:-
In the instant case all the principles and doctrines had been complied with in appointing the Bishop-Elect. It is in agreement by both parties that the decision of the House of Bishops on that matter is irreversible. That being so the issue of conflict in the Diocese would therefore have been of a secondary consideration which would not have stopped the defendant from consecrating the Bishop-Elect as that would undermine the authority of the church. The authority of the church which is based on principles and doctrines which are contained in the Provincial Constitution and Canons and form the foundation of the church, ought to be honoured and protected at all costs. Democracy should come in only as a means of improving those principles and doctrines and not to destroy them. It is along that line that I do not find any basis on the side of the defendant in protracting consecration allegedly for the purpose of reconciling the factions. Reconciliation in my view must be premised on sound principles. I do believe that reconciliation is good for the running of the church but it should not undermine the authority and foundation of the church like in the instant case. For the above reasons I hold that it was wrong for the defendant to protract consecration for such a length of time on allegation of insecurity brought about by factions in the Diocese. Consecration was a lawful activity for which Government would have been an interested party in providing security. Above all there is no law which provides that service of consecration should only be in the Diocese of enthronement. What the law provides is that the candidate must have qualification, celebration must be done by the Archbishop or his appointee with at least two other Bishops and the same must take place on a Sunday or a Holy day unless the Archbishop, for urgent and weighty case, appoints some other day: See Canon 3:6.
For the above reasons the defendant could have and can still opt for another venue other than Muhabura Diocese. In all these I observe that the defendant did not exercise his discretion lawfully under the Provincial Constitution and Canons to have the Bishop-Elect consecrated and enthroned. The factions he bowed down to were a mere question of intolerance which should have been looked into after the consecration and enthronement and in case of severity that would have constituted a subject of his taking over the Dioceselawfully this time under Canon 1:3:8. That is where a Diocesan Bishop is incapacitated from running his Diocese by any factor. In light of the above observations the second issue is answered in the affirmative.
Whether the plaintiffs are entitled to the Remedies sought:
A preliminary point of law was raised during the submission by Counsel for the defendant that the plaintiffs had no cause of action in law. The Learned Counsel contended that the plaintiffs did not enjoy any right protected under the law and that they were not aggrieved parties in this matter.
The matter before this Court is based on the allegations that the defendant had violated the Provincial Constitution by refusing to consecrate and enthrone Bishop-Elect. The plaintiffs are members of the Laity of Muhabura Diocese. As members of the Laity they are bound by the above constitution in the same way the defendant is. It is therefore within their rights to see that the provisions of the Constitution are enforced to the letter and possibly the spirit and they become aggrieved in circumstances where they feel that the constitution and canons are being flouted. Therefore, the scenario before this Court clearly clothes the plaintiffs with a cause of action against the defendant: See Auto Garage & Others Vs Motokov  EA 514.
I now move to the remedies available to the plaintiffs. In view of my findings above, the following orders are pertinent and reasonable in this matter. They are:-
(ii) Though the defendant is willing and ready to consecrate and enthrone the Bishop-Elect it is ordered that the same be done within a reasonable time.
(iii) Since the Commissaries were appointed by the Synod I order that they continue running the affairs of the Diocese together with the Diocesan Council as the defendant prepares to consecrate and enthrone the Bishop-Elect.
(iv) No order of injunction shall issue against the defendant in view of his general power of leadership and supervision of the whole Province of the Church of Uganda;
(v) Costs of this suit shall be provided for in favour of the plaintiffs. I so order.
Mr Kagumire present for Defendant.
Richard Mwebembezi for the plaintiffs.
Judgment read in chambers as in open Court.
RUBBY AWERI OPIO