[2024] UGHCCD 198

### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)**

# **MISCELLANEOUS APPLICATION NO. 811 OF 2024 CIVIL SUIT NO. 305 OF 2020**

- **1. RT. REV. AMOS MAGEZI** *(The Bishop of North West Ankole)* - **2. RT. REV. MICHEAL LUBOWA** *(The Bishop of Central Buganda)* - **3. RT. REV. BOGERE EGESA SAMUEL** *(The Bishop of Bukedi)* **::::::::APPLICANTS** - **4. RT. REV. PROF ALFRED OLWA** *(The Bishop of Lango) & 32 Others*

### **VERSUS**

- **1. SENDOWOZA SAIGHT JOHN** - **2. BEMBA MOSES** - **3. SSAJJABI CHRISTOPHER KATENDE** - **4. KAKEMBO MOSES::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

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

### **RULING**

The applicants brought this application under Order 6 rules 29 & 30 and Order 52 rules 1, 3 and 3 of the Civil Procedure Rules and Sections 96 & 98 of the Civil Procedure Act seeking the following Orders;

- *a) The plaint in Civil Suit No. HCT-17-CV 335-2023 be struck out.* - *b) High Court Civil Suit No. HCT -17-CV-335 -2023 be dismissed with costs to the applicants.* - *c) Costs of this application be provided for.*

The application is supported by the affidavit of Rt. Rev. Amos Magezi which briefly states that;

- 1. The plaintiffs/respondents purport to enforce personal rights of Rev Canon. Godfrey Kasana who is not a party to this suit. The plaintiffs/respondents cannot be aggrieved on behalf of Rev. Canon Godfrey Kasana who has already accepted the decision of the House of Bishops, as the instant suit is not a case of public interest. - 2. That the suit is brought against 7 wrong parties who were not present during the sitting of the House of Bishops on 28th June 2023 at Kabalega Resort in Hoima District; *Rt. Rev. Johnson Twinomujuni (the Bishop West Ankole Diocese); Rt. Rev. Henry Katumba-Tamale (Bishop of West Buganda Diocese); Rt. Rev. Bishop Namanya Stephen (the Bishop of North Ankole Diocese);Rt. Rev. Nason Baluku (the Bishop of South Rwenzori Diocese); Rt. Rev. Micheal Lubowa (the Bishop of Central Buganda Diocese); Rt. Rev. Dr. Fred Mwesigwa (the Bishop of Ankole Diocese); Rtd. Rt. Rev. James Nasak (Retired Bishop of North Karamoja Diocese)* - 3. That the instant suit is entirely based on Religious and Spiritual matters involving interpretation of Church of Uganda Rules, Regulations, Practices and traditions which jurisdiction this court is not vested with. - 4. That the Orders sought to consecrate Rev. Can. Godfrey Kasana cannot be enforced by this court and amounts to judicial intervention in religious questions and the doctrine of ministerial exception. - 5. That the revocation of Rev. Canon Godfrey Kasana was done by applicants in execution of their powers enshrined in Art 4(5) of the Provincial Constitution on 28th June 2023 and the respondents have no locus to challenge the decision. - 6. That the election of a Bishop is a Spiritual and Ecclesiastical matter within the jurisdiction of the Church of Uganda Organs subject to the laws, regulations, practices and norms of the Church, which is an independent jurisdiction from that of the Civil Courts.

- 7. The respondents case is frivolous and vexatious and abuse of court process. The respondents are merely busy bodies with no reasonable cause to enforce rights of a person who is not interested in the suit. - 8. That the orders sought by the respondents are untenable and cannot be enforced. This court cannot order for the consecration and enthronement of Rev. Canon Kasana as it is not vested with powers to supervise a religious act.

The respondents filed an affidavit in reply through the 3rd respondent-Sajjabi Christopher Katende who briefly contended as follows;

- 1. That the Constitution of Uganda empowers any person where a legal injury is caused to a person or a determinate class of persons by reason of violation of his/her constitutional rights to maintain a suit in the High Court, therefore, the respondents have a right to bring up this suit. - 2. That it defeats one's imagination to claim as the applicants do that a letter attached as B under paragraph 6 by Rev. Canon Kasana means that he accepted the decision of the House of Bishops. The letter itself bears the words; *"despite the pain that Iam undergoing through…………."* In other line he said *"I wrote three letters (3) to your office and House of Bishops requesting for a review of my nullification……."* Then according to the above, how could Rev Canon Godfrey Kasana have accepted their decision. - 3. That the contents of paragraphs 8 and 9 of the affidavit in support are of a person who fails to distinguish matters of civil disputes and those of religious doctrine. Our case was based on investigating arbitrariness under which the religious leaders handled affairs of Rev. Canon. Godfrey Kasana and as such they laid themselves naked before the law. - 4. That Article 4(5) of the Provincial Constitution of the Church of Uganda which the House of Bishops prides in to have given them powers to revoke the election of Rev. Canon. Kasana Godfrey deals with only qualifications of a person to become a bishop. They had exercised it while electing him but when it came to revocation of his appointment allegedly on basis of misrepresentation of his integrity, the House of Bishops should have turned to Provincial Canon 3.7.5 (b) which provides for the sending back of a

nominee's name in circumstances when it is queried under the integrity so that the Diocesan Nominations Committee reviews the matter.

5. That I wish to emphasize that our case is not on the election of Rev. Canon Godfrey Kasana but otherwise the revocation of his election which was done arbitrarily and without giving him a fair hearing and I'm sure when court entertains this matter, it is not supposed to go into doctrinal or ecclesiastical matters but whether his civil rights were violated.

The respondents/plaintiffs in their plaint sought pleaded and sought the following reliefs;

3. The plaintiffs' claim against the defendants jointly and /or severally is for violation of basic human rights, breach of care to the Christians;

*(a) A declaration that the defendants owe the plaintiffs a duty of care;*

- *(b) A declaration that the defendants sitting as the House of Bishops should act in trust for the laity including the plaintiffs;* - *(c) A declaration that the defendants breached the trust the plaintiffs had in them when they disregarded principles of natural justice and church's established norms and or practices while nullifying the appointment of Rev. Canon Godfrey Kasana as the Bishop of Luwero Diocese;* - *(d) A declaration that Rev Canon Godfrey Kasana is still the duly elected 4th Bishop of Luweero Diocese;* - *(e) A declaration that the actions of the defendants are in breach of Rev. Canon Kasana's right to fair hearing;* - *(f) An Order nullifying or setting aside the defendants' impugned decision of cancellation of the election of Rev. Canon Godfrey Kasana as the 4th Bishop of Luweero Diocese;* - *(g) An Order for the Consecration and/ or enthronement of Rev. Canon Godfrey Kasana as the 4th Bishop of Luwero Diocese;* - *(h) An Order of permanent injunction restraining the defendants from re-electing another person as the 4th Bishop of Luweero Diocese;*

- *(i) Any other relief that this Honourable Court may deem fit and;* - *(j) Costs of the suit.*

#### *Issues*

- *(i) Whether the plaint discloses a cause of action?* - *(ii) Whether the court has jurisdiction to hear and determine matters of a religious nature?* - *(iii) Whether the plaintiffs have locus to institute this suit against the defendants?* - *(iv) Whether the suit is brought against wrong parties?* - *(v) Whether the suit is an abuse of court process as it is a disguised judicial review?* - *(vi) Whether the orders and reliefs sought from this Honourable court are unenforceable and hence cannot be granted?* - *(vii) Whether the suit is frivolous and vexatious?* - *(viii) Whether the court is vested with powers to dismiss the whole suit?*

The applicants were represented by *Mr. Naboth Muhairwe* and *Mr. Asiimwe Mugumya* while the respondents were represented by *Mr. Kibirango Erastus*

#### *Preliminary Considerations*

The respondents' affidavit leaves a lot to be desired and it is very argumentative in content. The respondents counsel decided to make arguments rather than to present facts in answer or reply. Legal arguments, objections and prayers should be left to counsel and not to be ventilated in the affidavit. Affidavits are intended to be probative of the facts which the party filing affidavit seeks to prove before the court. See *Life Insurance Corporation of India v Panesar [1967] EA 614*

Facts deposed to in affidavits are apparent on their face. If they are argumentative or if they are extraneous, then the court ought to strike out such offending paragraphs. The court is not obliged to allow defective and erroneous affidavit or content to be used in litigation without doing anything to rectify or remedy it. See *Pattni v Ali [2005] KLR 269; Re:Bukeni Gyabi Fred HCMA No.63 of 1999*

The deponent for the respondent was an illiterate who does not understand the English language and it is not conceivable that he made the conclusions on law, but rather it was the lawyer who tried to put his case through arguments. A deponent of an affidavit shall make his depositions to conform as near as possible to oral evidence admissible in court and deal with facts and avoid objections, prayer or legal argument and conclusion. An affidavit which is found to be argumentative should be struck out and not relied on. See *Nakiridde Namwandu v Hotel International Ltd [1987] HCB 85*

Affidavits should not loosely be drafted or turned into submissions of counsel in order to drive his legal arguments home. The respondents have not made any meaningful answer to the application on factual basis and the affidavit is accordingly struck out for offending the rules of drawing affidavits and being argumentative. Where an affidavit is found to be prolix and non-compliant with order 19 rule 3 of the civil Procedure rules, such affidavit ought to be struck out. See *Male H Mabirizi K Kiwanuka v AG SC Misc Appn No. 7 of 2018; Rohini Sidipra v Freny Sidipra & Others HCCS No. 591 of 1990*

The affidavit of the respondents is struck off.

# *Whether the plaint discloses a cause of action against the defendants.*

The applicants' counsel submitted that the applicants' did not elect Bishop-Elect nor did they individually cause the cancellation of the election. The election and cancellation of the election were rightly done by the House of Bishops in accordance with Rules, Regulations and traditions and practices of Church of Uganda. Therefore, the respondents enjoyed no right which was violated by the applicants and hence the applicants cannot be held liable.

The applicant's counsel further submitted that the court does not have jurisdiction to hear and determine matters of a religious nature. It was contended that this is a religious matter as it involves the cancellation of the election of the Bishop Elect Rev Can Godfrey Kasana of Luwero Diocese by the Church of Uganda House of Bishops.

It was counsel's submission that the matter falls under the doctrine of ministerial exception and as such its involvement would only tantamount to violation of the Church of Uganda Rules, Regulations, traditions and practices. The *'doctrine of* *Ministerial Exception'* otherwise known as *"Church-Autonomy doctrine"* requires civil courts to consider legal claims to avoid resolving the Religious questions that relate to the claims and instead defer those religious questions to the Religious Organisation's Authority.

There has been no reference by the respondents/plaintiffs to the 1995 Constitution of Uganda from which a right was infringed to warrant a suit before this court. There are no rights of the respondents which have been pleaded to warrant the respondents suit in this court.

It was contended further that this Honourable court has no jurisdiction to interfere in the religious processes of church of Uganda. Since the rights of Church of Uganda are derived from its provincial Constitution and Provincial Canons, the plaintiff should enforce their grievances through existing adjudication mechanisms therein, instead of running to civil courts. The respondents as committed members of the Church of Uganda should have first exhausted the available avenues of resolving disputes of this nature within the Provincial Constitution.

The respondent's counsel submitted that under Article 50 of the Constitution, gives every person powers to apply to a competent court for redress in case a fundamental right has been infringed upon or threatened. According to counsel, Rev Canon Godfrey Kasana's right to a fair hearing was violated by the applicants and their peers when they purported to determine his fate without giving him an opportunity to defend himself.

The respondent further contended that the head suit focuses on the arbitrariness exercised by the applicants while taking the decision to cancel the appointment of Rev. Canon Godfrey Kasana as the 4th Bishop of Luweero Diocese. He invited this court to look at the peculiar circumstances surrounding the main suit. The applicants cannot evade scrutiny by alleging all their actions regarding the nullification so as to be protected by the doctrine of ministerial exception.

The respondent's counsel submitted that the House of Bishops has no mandate to determine disputes since this is a preserve of only tribunals set up at different levels. The House of Bishops avoided the well prescribed procedures or mechanism were Rev Canon Godfrey Kasana's matter would have been handled and probably determined so as to avert the problem.

Counsel contended that the dispute resolution was frustrated by the defendants/applicants and the remedy of reviewing their decision as prayed by rev Canon Godfrey Kasana was not heeded, and therefore the respondents were right to seek redress from this honourable court. In counsel's view, the question before this court is not about qualifications of Rev Canon Godfrey Kasana which would call religious questions but rather how he was treated by cancellation of his election. *Analysis*

As held in *Auto Garage vs Motokov [1971] EA 514* the three essential elements to support a cause of action are where the plaintiff enjoyed a right, that the right has been violated, and finally that the defendant is liable.

The main consideration in this matter is the appreciation of the nature of right the plaintiff enjoyed in this matter and whether such right is justiciable in the ordinary civil courts. The respondents/plaintiffs are claiming a right to fair hearing of Rev Canon Godfrey Kasana to be consecrated as a Bishop of Luweero Diocese after the House of Bishop sat and cancelled his election.

The mere fact of the involvement of the question of fundamental human rights does not automatically entitle the applicants to approach the court by the fundamental human rights procedure under Article 50. It must form the main plank of the action. The court is to determine whether the matter brought before it is really one of fundamental human rights in spite of the urgency of the applicant or his counsel in crafting the case to so look.

In the case of *Charles Harry Twagira v AG & 2 others SCCA No. 4 of 2007* Justice Mulenga noted as follows;

*"Article 50 of the Constitution proclaims the infringement of the rights and freedoms guaranteed under the Constitution to be justitiable. However, the right to apply to a competent court for redress on the ground of such infringement must be construed in the context of the whole Constitution generally and in the context of Chapter 4 in particular.*

The respondents' claim for an action out of breach of fundamental right to a fair hearing is quite far-fetched and borders around an abuse of court process to instituted proceedings of breach of a right to fair hearing on behalf of Rev Canon

Kasana who is not aggrieved but rather the 4 respondents acting more aggrieved than the person whose election was cancelled.

The nature of the plaintiff's case is a religious dispute and therefore religious issues arise out of this dispute since it involves the cancellation of the Rev Canon Kasana's election as the 4th Bishop of Luweero Diocese. Generally, Religion is deemed by our culture to be a matter of persuasion. The law cannot compel a citizen's adherence to a religious belief, and must always protect the privilege of infidelity. In the case of *The Most Reverend Dr. Stephen Kazimba Mugalu v Mazzi Joyce & 5 Others HCMA No. 036 of 2023*; *The Principal Judge Hon Justice Dr. Flavian Zeija* while granting an application to dismiss held that; *The general rule is that religious controversies are not the proper subject of civil court inquiry…. 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 resolve cases that turn to questions of religious doctrine and practice. This is popularly referred to as the 'religious question' doctrine. That means that courts cannot resolve "controversies over religious doctrine and practice…as a result, courts will dismiss claims that hinge on religious question even if no other religious institution is waiting in the wings to resolve the religious dispute. In this way, the religious question doctrine prohibits courts from addressing a wide set of claims even though dismissing such claims will leave plaintiffs without any forum that has authority and ability to provide redress of serious cognizable harms….religious institutions should be empowered to resolve internal disputes that involve matters of faith, doctrine, church governance and polity…."*

Countless are the times when courts have said that religious disputes are not within the jurisdiction of civil suits. This sweeping statement gets limited to read that a 'purely' ecclesiastical or doctrinal issue is outside the scope of civil jurisdiction, thereby enabling them to assume decision-making function over factions whose property squabbles are inextricably interwoven with doctrinal undertones. Or to put it the other way, a judge may say that religious disputes which involve property or civil dispute are within the scope of court.

In the case of *United States v Ballard 322 U. S 78 (1944)* the court noted that; *"Judicial intervention into religious questions is similar to the doctrine of a political question, wherein, it can be understood that just like it is expected that political branches are more opposite to decide the political question, religious bodies are suitable to decide questions about religion."*

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."*

Justice Stephen Mubiru in *Rev Father Cyril Adiga Nakari vs Right Reverend Ocan Odoki and Registered Trustees of Arua Diocese HCCS No. 002/2017* High Court Arua had this to say on Church/religious disputes –

"*This is a suit in which deference to organs of governance with the religious community of the Church ought to be observed. This Court should use restraint and be slow to intervene in internal affairs of the Church whenever it is still possible for the Church to correct its errors within its own institutional means*."

He went on further –

"*On the other hand, the determination of who is morally and religiously fit to conduct pastoral duties or who should be excluded for non-conformity within the dictates of the religion falls within the core of religious functions. Civil Courts will defer to a religious organisation good faith understanding of who qualifies as its Minister where resolution of the dispute cannot be made*

*without extensive inquiry by the Civil Court into religious law and polity, the court will not intervene.*

*The mere adjudication of such questions would pose grave problems for religious autonomy. This kind of second guessing of ecclesiastical decisions would constitute a clear affront to rights of religious autonomy. The Church must be free to choose who will guide it on its way*."

Similarly, the other reason to prohibit courts from this decision making stems not from skepticism regarding judicial ability to resolve religious questions, but rather from concerns that judicial resolutions of such questions will be interpreted as an endorsement of one religious view over another or importing practices not conforming to spiritual and religious teachings.

The non-justiciability of some issues would mean that one cannot seek remedy elsewhere and thus leaving them without any options to vindicate their rights. The court is such circumstances should be open to address the issue before hand. However, where the religious institutions which have dispute resolution mechanism must be upheld. As a matter of constitutional law and sound policy, courts should wade in the waters of disputes turning on religious doctrine or practice so as to afford parties access to an adjudicative forum to provide redress for legal wrongs.

It bears emphasis, that whenever the questions of discipline, of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the courts must accept such decisions as final, and as binding on them, in their application to the case before them. This is premised on the view that courts lack capacity to litigate religion and it stems in large part from worry that religious claims lack objectivity and empirical bases. Thus, "In contrast to ordinary questions of fact, religious questions are understood to lie beyond judicial competence because they do not depend on the logic of law. Instead, religious questions may be answered on the basis of faith, mystical experiences, miracles, or other non-rational sources." In the case of *Ballard v United States (supra)* The Supreme Court noted;

*"Men may believe what they cannot prove-They may not be able to put the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law….when triers of fact undertake that task, they enter a forbidden domain."*

The selection of a Bishop is a religious function in my view and the plaintiff's/respondents claims that are under adjudication would invite court to get involved in the resolution of religious question that involves the interpretation of the Church of Uganda constitution and the Provincial Canons that govern the appointment process. The United States Court of Appeals for the Third Circuit in the case of *Petruska vs Gannon University* noted:

"*The process of selecting a religious Minister is per se a religious exercise*."

## *Article 4(2) of the Provincial Constitution* provides;

*No person shall be allowed to administer as Bishop, Priest or Deacon in the Church of Uganda unless he or she has been licensed by the Archbishop in the case of Bishops or Diocesan Bishop in other cases.*

The House of Bishops which is the highest organ responsible for selecting a Bishop made a religious decision in their view that Rev Canon Godfrey Kasana is not best suited to serve in that position as the Bishop of the Church in Luweero Diocese. The decision to cancel the election of Rev Canon Godfrey Kasana is a religious one based on qualifications set out in the Provincial Constitution and Provincial Canons of Church of Uganda. This mandate as discussed earlier cannot be brought to question in courts of law and it must be respected for harmony in the Church management and administration. The intervention by courts would bring the Church and the State in direct conflict over the religious question contrary to doctrine of Ministerial Exception.

The doctrine of Ministerial exception is drawn from the USA where the First amendment guarantees freedom of religion and forbids Congress from enacting state religion. It is the equivalent of Articles 7 and 29(1) of the Ugandan Constitution. This doctrine has been applied in several American cases and which cases are of persuasive authority as they discuss constitutional provisions which are in *pari-materia* with those of the Ugandan Constitution.

In *Petruska vs Gannon University* the United States Court of Appeal for the Third circuit had this to say –

"*First, like an individual, a Church in its collective capacity must be free to express religious beliefs, profess matters of faith and communicate its religious message, unlike an individual who can speak on her own behalf. However, the Church as an institution must retain the collaray right to select its voice. A Minister is not merely an employee of the Church: she is the embodiment of its message. A Minister serves as the Church public representative, its ambassador, its voice to the faithful. Accordingly, the process of selecting a Minister is per se a religious exercise. The Minister is the chief instrument by which the Church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognised as of prime ecclesiastical concern. Consequently, any restriction on the Church's right to choose who will carry its spiritual message necessarily infringes upon its full exercise to profess its beliefs*."

In *Hossana Tabor Evangelical Lutheran Church and School vs Equal Opportunities Commission*, the Supreme Court of the United States had this to say on the matter

"*A religious organisation right to choose Ministers would be hollow, however if secular courts would second guess the organisations sincere determination that a given employee is a 'Minister' under the organisations theological tenets*."

It went further to state –

–

"*When it comes to the expression and inculcation of religious doctrine there can be no doubt that the messenger matters. Religious teachings cover the gamut from moral conduct to metaphysical truth and both the content and credibility of a religious message depend vitally on the conduct and character of its teachers. A religion cannot depend on someone to be an effective advocate for its religious vision if that person's conduct fails to live up to the religion percepts that he / she espouses. For this reason, a religious body's right to self-governance must include the ability to select and to be selective*

*about those who will serve as the very embodiment of its message and its voice to the faithful*."

These cases though decided by the Supreme Court of the United States of America are relevant because they discuss constitutional provisions which are similar to these in the Ugandan Constitution. The First Amendment in the US Constitution provides that Congress shall make no law respecting an establishment of religion. This is at times referred to as the Establishment Clause. This is similar to Article 7 of the Uganda Constitution which states "Uganda shall not adopt a state religion."

The Free Exercise clause in the American Constitution protects the right of citizens to freely exercise their religious rights and beliefs and is similar to **Article 29 (1) (c) of the Ugandan Constitution** which provides:

"*Every person shall have the right to freedom to practice any religion, and manifest such practice which shall include the right to belong to and participate in the practice of any religious body or organisation in a manner consistent with the Constitution*."

*Justice Steven Mubiru in Rev. Fr. Cyril Adiga Nakari vs 1. Rt. Rev. Sabino Ocan Odoki and 2. The Registered Trustees of Arua Diocese – Civil Suit No. 0002 of 2017* (supra) made reference to the American case of *Petruska vs Gannon University and went on to say:*

*"That statement underscores the fact that a religious organization's fate is inextricably bound up with those whom it entrust with the responsibilities of preaching its word and ministering to its adherents. These are difficulties in separating the message from the messenger. I am persuaded by the interpretation and application given to the First Amendment by the Courts in the United States to hold that Articles 7 and 29(1)(c) of the Constitution of the Republic of Uganda 1995 protect the roles of religious leadership worship ritual and expression.*

*The freedom of religious groups to engage in certain key religious activities (including the conducting of worship services and other religious ceremonies and rituals as well as the critical process of communicating the faith.*

## *He went on further:*

*Religious autonomy means that religious authorities must be free to determine who qualifies to serve in positions of substantial religious importance. Accordingly, religious groups must be free to choose the personnel who are essential to the performance of these functions. If a Church believes that the ability of a priest to conduct worship services or important religious ceremonies or rituals, or to serve as a messenger or teacher of its faith or perform such other key functions has been compromised, then the constitutional guarantee of religious freedom protects the Church's right to remove the priest from his position. The Constitution creates a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs. "forcing a group to accept certain members may impair its ability to express those views, and only those views, that it intends to express" (Boy Scouts of America v. Dale, 530 U. S. 640, 648 (2000). The Constitution leaves it to the collective conscience of each religious group to determine for itself who is qualified to serve as a teacher or messenger of its faith. In the result, all church offices ought to be filled by the exclusive decision of the church concerned. No state body (including the courts) is entitled to rule over the canonical aspects of church offices.*

The same position was adopted by the Supreme Court of the United States which held in the case of *Serbian Eastern Orthodox Diocese for The United States of America and Canada et al vs. Milivojevich*as follows:

"*whenever the questions of discipline or of faith or ecclesiastical rule custom or law have been decided by the highest of the Church adjudications to which the matter has been carried the legal tribunals must accept such decision as final and as binding".*

and went on further to say;

## *"Religious freedoms encompass the power of religious bodies to decide for themselves free from State interference matters of Church Government as well as those of faith and doctrine".*

Therefore, the House of Bishops made a decision that the Rev Canon Godfrey Kasana is not the right messenger to disseminate its message and its beliefs given his integrity issues emanating from allegations of adultery and or having an affair

outside the wedlock and fathering children. The decision must stand and should not be interrogated by courts as discussed earlier since the court is not best suited to handle religious question disputes or it is an affront on the *'doctrine of ministerial Exception'*.

The actions of the plaintiff involving change of date of birth is contrary to the Provincial Canons and the Constitution of Church of Uganda **Canon 3.9.1 (Page 78**

**)** - *A Bishop shall strive to be an example of righteous and Godly living ………"*

If the House of Bishops has determined that Rev Canon Godfrey Kasana does not meet such a standard, it would not be open to the Court to order the Archbishop to forcefully consecrate him. That would amount to forced inclusion and would run counter to the *'Ministerial exception doctrine'* which gives religious institutions residual power free from the Courts in determining who should be entrusted with the governance of its institutions.

The rights that the plaintiff enjoys are derived from the Provincial Constitution of the Church and the Provincial canons and the same must be ably enforced through the existing adjudication mechanisms instead of running to the civil court which is not very competent to resolve the same in ignorance of applicable regulations and guidelines as derived from the Canonical Scriptures of the Old and New Testament as being the ultimate standard of faith, given by inspiration of God. See *Rev. Canon Charles Oode Okunya vs The Registered Trustees of the Church of Uganda HCCS No. 305 of 2020*

Church of Uganda as a religious institution with a Constitution and Provincial canons maintains internal ecclesiastical bodies tasked with resolving religious disputes or litigation. Therefore, Church of Uganda has primary authority over such matters involving religious questions. *Article 16 of the Provincial Constitution* provides;

The Provincial Assembly shall by Canon provide

a) That any Bishop, Clergy or Laity of the Church of Uganda shall not seek redress in any external adjudicatory body unless all the dispute resolution mechanisms provided under this Constitution and Provincial Canons have been fully exhausted.

**Article 17** provides that:

The Provincial Assembly shall provide by Canons for the following tribunals-

a) Diocesan Tribunals;A Provincial Appeals Tribunal; and Provincial Tribunal

The respondents have pleaded that at all material times, been dedicated members of the Great Anglican Church of Uganda congregating and fellowshipping in various churches under Luweero Diocese and are ready to prove their membership to their respective churches and accordingly they are governed by the Provincial Constitution and Provincial Canons.

**Article 21 (4) of the Provincial Constitution** provides as follows –

"*Any person who is subject to this Constitution by virtue of being a member of the Church of Uganda shall not seek redress in any external adjudicatory body in connection with a matter that can be handled before he or she has exhausted all dispute resolution mechanism under this Constitution*."

**Article 4(5) of the Provincial Constitution** provides as follows –

"*Any dispute regarding the formal qualification of any person to Minister as a Bishop, Priest or Deacon in the Church shall be decided by the House of Bishops*."

The plaintiff failed to exhaust the available avenues of resolving disputes within the Church of Uganda establishment and organs and this court would decline to handle the religious question which as discussed earlier is non-justiciable in this court. The respondents have failed show the cause of action they had against the applicants. This matter stands dismissed on this ground.

For reasons stated herein this application is allowed with costs and the main suit is dismissed with costs to the defendants.

I so order.

*SSEKAANA MUSA JUDGE 20 th November 2024*