A lengthy briefing paper has been issued on behalf of the Province of Central Africa concerning the turmoil in the Anglican Diocese of Harare. It was authored by the Rt. Rev. Albert Chama, Bishop of Northern Zambia, Dean of CPCA and Acting Archbishop (the post of archbishop being vacant until all sees in the province are filled), and circulated beginning 4 March 2010. Entitled “Kunonga, the Rule of Law and Justice,” it is reproduced here in its entirety.
KUNONGA, THE RULE OF LAW AND JUSTICE
1. According to the agreement entered into between ZANU(PF), MDC(T) and MDC(M) in 2008, the parties have emphasized the importance of their commitment to “re-orient” their attitude towards respect for the Constitution and the Rule of Law.
2. At an international conference on the Rule of Law and Peace, held recently, it was confirmed that within the framework of the Rule of Law, Governments and their officials, including the police and agents, are accountable under the law for official misconduct, including abuse of office for private gain, acts that exceed their authority and violations of fundamental rights. The international conference recorded, in addition, that judicial proceedings and decisions should be free of bias or improper influence by public officials or private interests, should be fair and protect fundamental rights and the security of property. Judges should be impartial and accountable. Judicial proceedings should be efficient, accessible and effective so that judgments are enforced without unreasonable delay and timely and effective remedies are given to prevent and address lack of compliance with the law.
3. The people of Zimbabwe yearn to restore the tattered reputation of this potentially great country so that with the intended change of attitude and recognition of the Constitution and the Rule of Law, among other commitments, Zimbabwe may become one of the finest, fairest, most democratic and just, peaceful, humane and prosperous nations in the world.
These factors are relevant for purposes of this commentary.
ANGLICAN CHURCH OF THE PROVINCE OF CENTRAL AFRICA (CPCA)
It is also important to set out sufficient information on the Anglican Church of the Province of Central Africa (CPCA) to enable everyone to understand the structure:
1. The CPCA spans across 4 countries : Botswana, Malawi, Zambia and Zimbabwe. There are currently 15 dioceses each with a bishop, one of whom is the Archbishop of the CPCA. In commercial parlance, the CPCA is the holding company and each diocese is its wholly-owned subsidiary. The 15 bishops convene from time to time under the Chairmanship of the Archbishop at what is known as the Episcopal Synod (the “Provincial Executive”). Again using the commercial analogy, each bishop is the equivalent of a managing director of a subsidiary company with the Archbishop as the Chairman of all the subsidiary companies (or dioceses). The decisions of the Episcopal Synod are binding on all 15 dioceses in the Province.
2. On taking office, every bishop swears a solemn oath that he consents to be bound by, and to govern his diocese in conformity with all the Laws and Canons of the CPCA (The Canons are enactments of the CPCA binding on all Anglican priests in the four countries of the Province)
3. In each Diocese a Diocesan Synod or “Diocesan Parliament”, comprising the bishop, all clergy and lay representatives from parishes within the Diocese meets periodically to attend to the affairs of that Diocese. It, like each bishop, has always to comply with the overriding laws of the CPCA.
4. On the subject of property, the CPCA through its Provincial Synod or “Provincial Parliament”, (15 bishops and lay representatives elected from each Diocese) frames rules for the management of property situated in and held by the Dioceses in all four countries. The CPCA has full powers and authority over each diocese to determine in what manner and upon what terms such property shall be used or occupied. CPCA Trustees hold the property in trust. They obey and are under the authority of the Provincial Synod. In turn, Diocesan trustees exercise their powers on behalf of the Provincial Synod and have to ensure the provisions of the CPCA Constitution and Canons concerning property and funds are complied with, not only by the Diocesan Trustees themselves, but by every person or body in their Diocese dealing with property, including the bishop.
5. Finally, for any diocese to break away from the CPCA it is necessary to obtain the approval of every diocese in the CPCA as well as a two-thirds vote of approval by the Provincial Synod and also the endorsement of the Archbishop of Canterbury.
With these laws in mind we can now assess the legality or otherwise of Nolbert Kunonga.
When he came into office as Bishop of the Diocese of Harare, Nolbert Kunonga swore a solemn oath that he was bound by and would govern the Diocese in accordance with all the laws of the CPCA. He knew perfectly well that he could not cause the Diocese of Harare unilaterally to break away from the Province and knows the property of the Diocese of Harare (the Diocese) does not belong to him but to the CPCA.
After his enthronement it became obvious that Kunonga had his own preconceived agenda. His unsuccessful though persistent attempts to amend the laws (Acts) of the Diocese to give himself supreme and unchallengeable power in the Diocese was a clear signal that he had no intention whatsoever to be bound by his oath. Kunonga pursued an oppressive path apparently assisted by his secretary Morris Brown Gwedegwe and others. He intimidated Anglican clergy in the diocese, callously revoked priests licences and dismissed a number without affording them the right of an ecclesiastical trial. He falsely accused priests and members of the laity of misdemeanours, especially that of not being supporters of the ruling party. Allegedly he even attempted to incite a priest to eliminate certain persons. Unilaterally, it seems, he removed memorial plaques from the Cathedral. Unprocedurally and without justifiable reason he dismissed lawfully elected members of existing committees, boards and institutions. He replaced them with his own hardliners so that he could be guaranteed they would do exactly what he told them.
It became increasingly necessary to draw the attention of Kunonga to the laws of the Diocese and the CPCA and respectfully advise him not to transgress them. He ignored this, and supported by his collaborators, moved ahead with his own premeditated plans.
THE SCHEME AND INTRIGUE
With hindsight, it seems clear that Kunonga was determined to break away from the CPCA, form his own Province, be his own master, detach himself from all ecclesiastical laws, and entrench himself as Archbishop of the whole of Zimbabwe.
At the Harare Diocesan Synod held on the 4th August 2007 most members of the Synod were taken by surprise to receive at the beginning of Synod, a notice of motion which read, “The Diocese of Harare does not recognise homosexuals as an acceptable Christian norm and hence does not recognise marriages from such relationships”. Sneaking in the notice at the last minute seemed to be a tactical move to catch Synod members unprepared. A notice of motion must be sent to members of Synod at least 18 days in advance of Synod to enable Church Councils to discuss and formulate their views on it before coming to Synod. In any event, 40 years previously the CPCA had passed a resolution 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”. Kunonga was well aware of this. So there was absolutely no reason to consider the motion tabled at Synod. However, Kunonga and his supporters needed a deceitful excuse to push forward with his plot. The motion was reluctantly passed by Synod but only as a statement. There was no mention of the Diocese withdrawing from the CPCA.
Just four days after that Synod, Kunonga, accompanied by some of his clique attended the Provincial Synod in Malawi. Although it was not on the agenda, Kunonga raised the question of homosexuality. To their surprise he then told Provincial Synod that he and the Diocese of Harare had resolved at its recent Synod to withdraw from the CPCA, which was totally untrue. Indeed Kunonga subsequently admitted to the Herald newspaper on about the 15th September 2007 that the “Canons do not recognise homosexual marriages,” which implicitly emphasized there had been no need for the Diocesan Synod to have had the notice of motion thrust in its face. But despite this, Kunonga addressed a letter on the 21st September 2007 withdrawing himself and the Diocese from the CPCA with immediate effect, thereby unlawfully and without any approval from Synod severing the ties of the Diocese of Harare from the CPCA. The grounds fabricated by Kunonga were that the CPCA supported homosexuality.
THE REACTION BY CPCA
On the 20th October 2007, the CPCA wrote to Kunonga pointing out that the CPCA laws do not permit the Diocese of Harare to sever its links with the Province in this manner. The approval of each diocese, as well as two thirds of the Provincial Synod and the endorsement of the Archbishop of Canterbury are required. The CPCA wrote that as Kunonga had broken his vow of obedience, and had caused a schism, he and his accomplices, present and future, were no longer regarded to be or recognized as Anglicans. Kunonga’s personal withdrawal from the CPCA and therefore also from the Diocese of Harare was accepted but the Diocese of Harare itself remained within the CPCA. He was no longer the bishop of the Diocese of Harare and was told to hand over the property of the Diocese to a vicar-general about to be appointed by the CPCA. The term “Church” in the laws of the Diocese means “the Church of the Province”. These same Diocesan laws call on the Diocesan Trustees to deal with “the property and funds of the Church” in the Diocese which puts beyond doubt that the CPCA owns the Diocesan property and funds.
PROPERTY : KUNONGA IGNORES THE RULE OF LAW AND JUSTICE
Kunonga hotly disputed this and, against the weight of the Anglican Laws, claimed he was still bishop of the Diocese and the Church property belonged to him even though he had withdrawn from the CPCA. The CPCA, like any company, club, organisation or institution has its own rules and regulations. Kunonga swore to obey those rules. The Church decreed in 2007 that because Kunonga had voluntarily removed himself from and is no longer a member of the CPCA, he simultaneously ceased to be the Bishop of the Diocese of Harare which is a constituent member of the CPCA. The Anglican worshippers, the Diocesan assets and funds are not owned, controlled by and do not in any way belong to Kunonga. That is the CPCA law and its ruling.
It would be entirely unlawful, indeed would constitute spoliation, theft, trespass, invasion of privacy among other things, if the managing director of a Subsidiary Company resigned, walked out of the Company and said, “Although I no longer work for the Company and will not recognise the Holding Company, let me warn you I have claimed all the assets and funds of the company as my own. Not one of the workers nor the subsidiary company’s customers will be allowed inside the premises or to deal with company matters unless they first pay allegiance to me and accept me as the head of the subsidiary company and owner of its property. I will pay no attention to any rules or laws.”
This is sheer unsustainable nonsense. In such as case, a court application would urgently result in an order evicting this ex manager from the property and restraining him from trespassing, using or having access to the assets and funds of the Company in any way, and from preventing the workers and customers from entering the premises. A Court of law in these circumstances would order the police or other authority to prevent the ex-manager from interfering with the business of the Company. This is how the Rule of Law and Justice would immediately be applied and how the courts would react in an impartial, independent, free and fair judicial system to ensure effective justice is seen to be done. And the police would immediately react where required to support the judicial officers (judges, sheriffs, deputy sheriffs, magistrates, messengers of court and so on) to make certain the court orders were swiftly, fully enforced and the retired Managing Director removed forthwith from the company premises. He would not be permitted to influence the police nor any public officials.
Yet to the amazement of the world, especially Anglicans and other Christian denominations, in the case of the CPCA, almost the exact opposite to the court and police reaction given above has happened. Kunonga and his hangers-on, aided by the police, throw innocent CPCA members out of churches and unlawfully cling to CPCA assets.
Two notable judgments given in the High Court of Zimbabwe were free of bias. The one commented as a judicial dictum that the court did not recognise Kunonga as having any jurisdiction in CPCA matters as he was not its representative. The other called on the CPCA and the Kunonga faction to share access to the Churches until the “dispute” between the parties over the assets and funds, which was already before the courts in another case, had been resolved. The first judgment was in 2007; the second not long after that. We are now in2010. What steps has Kunonga taken to comply with the “sharing of the premises” court order?
Most of the priests of the Diocese and the great majority of church members refused to follow Kunonga into his self-chosen exile. He contemptuously unleashed a reign of violence and intimidation on these persons, propped up by the police, some thugs and a few persons he hastily ordained as his “priests”. The beatings, persecution, prevention by the police of legitimate churchgoers from attending their normal services, the locking and chaining of the cathedral doors by Kunonga, his wife and supporters to stop CPCA services from being held and the disdainful ignoring of court orders while calling for and receiving unjustified police support, are all indications of a breakdown of the Rule of Law in Zimbabwe. For the Police to arrest the Deputy Sheriff of the High Court when he was apparently carrying out his duty in terms of a High Court order at the Anglican Cathedral in Harare is contrary to the Rule of Law. For the Police, whose duty is to uphold the law and assist fellow officers of the court including judges and Deputy Sheriffs in maintaining justice, to ignore court orders and exceed their authority by violating instead of protecting of fundamental rights is an abuse of office.
The Courts in Zimbabwe are supposed to be independent. They are subject only to the Constitution and the laws of the land and are to apply these without fear or favour or bias. Interference with the operation of the courts is not permitted and the State, including the Police, has an obligation to ensure that judgments as well as the impartiality and independence of the courts are protected.
ABUSE OF LAW
Judges are aware, and the police should be aware, that anything which creates the slightest suspicion that the course of justice is being interfered with, damages the reputation of the judiciary and its law officers – including the reputation of the police where applicable.
Regrettably, there seems to be a continuous, intensifying abuse of office and contempt for the fundamental rights of individuals, including freedom of worship, assembly, access to one’s own property and security thereof. There is a perception that Kunonga has misled police officials by mendaciously telling them his faction is the legal custodian of the Church property in the Diocese of Harare and thus has the sole right to the use thereof, despite the two judgments referred to above. Under such false pretences he has obtained Police support. Directives have purportedly been given by very senior police officers to their juniors to ignore court orders delivered by anyone without first consulting the Provincial Command. Allegedly Kunonga has called on the police, who have made themselves available, to “silence” the CPCA. It has been claimed that Kunonga has even complained that some directives sent from Assistant Commissioners or other officers to police details, presumably at the request of Kunonga, have not been complied with because these police details are (quite rightly) asking for proof of such things as court orders which do not exist or cannot be obtained. In short, senior police officers are perceived to be collaborating with Kunonga, his bogus “priests” and thugs in assaulting and persecuting the very persons who have a legitimate right of access to and worship in their own churches and buildings; property which belongs to the CPCA. Kunonga and his faction have not contributed one cent towards these buildings. On the contrary Kunonga takes rental from CPCA properties for his own purposes. For senior police officers to give directives to prevent lawful churchgoers from worshipping in their own churches, and to assault and remove those who are legitimately inside a church is morally and legally unjust. Yet it is happening. Either the police have been totally duped and hoodwinked by Kunonga or they are deliberately bent on helping him to occupy, retain and use what is not his to the prejudice of the rightful owners and users. This is tantamount to undue and wanton interference in the rights and affairs of the Church by the police which makes them accessories to the increasing victimization and persecution by just a few self-idolising imposters over the massive following of CPCA churchgoers.
In all this, where is the respect for the Constitution and the Rule of Law including the Judicial System which the political parties to the agreement of the 15th September 2008 are committed to? Where is the accountability under the law for violations of fundamental rights? Where is the security of property? Where is the impartiality and fairness?
KUNONGA CONFIRMS SCHISM. FORMS HIS OWN CHURCH
While illogically maintaining he was still bishop of the Diocese of Harare and owner of the property of the Church, Kunonga announced on about the 12th January 2008 the formation of his own church. This underlines the motives he had nurtured for several years; his yearning to be boss of his own organisation.
Marching ahead with his pernicious plans Kunonga held a ceremony on the 23rd February 2008 to establish his very own province with himself as self proclaimed Archbishop. He made Harry Mambo Rinashe, Caxton Mabhoyi, Alfred Munyuni and Morris Brown Gwedegwe bishops in his organisation and subsequently made other appointments including Elson Jakazi as his bishop in Manicaland. This reinforced the fact that Kunonga had cut ties completely with the Anglican worldwide communion and the CPCA. His mindset was to walk out of the CPCA in August 2007, slam shut the door and turn his back on Anglicanism forever. It also stamped irrevocably on him and his men the label of “schism makers”. By these actions he has undeniably accepted that he and his fellow travellers are excommunicated, are no longer priests in the CPCA, are no longer Anglicans and, in fact, do not want to be. To make sure the public knows of the establishment of his new personal faction, he arranged for the announcement to be published in banner headlines in the Zimbabwe Sunday Mail on the 24th February 2008. Kunonga and his retinue obtained robes, crooks and mitres to dress up as bishops. But the formal attire or fancy dress only emphasizes that these persons and their followers are definitely not part of the CPCA and are in a separate clique of their own making. Holding themselves out to be Anglican bishops and priests is inaccurate – a “make believe” masquerade.
THE LAW COURTS
A case has been pending in the High Court of Zimbabwe since about 2007 to obtain a ruling that the property of the Diocese of Harare belongs to the CPCA and not to Kunonga as he alleges. In the meantime numerous interim and other court orders have been made, apart from the two notable judgments previously referred to.
Assisted by aggressive “bogus” priests and hired thugs, backed by a compliant police force, Kunonga immorally and unlawfully pays no attention to court orders that do not suit him and still persists in unjustified assaults on and persecution of the Anglican churchgoers, priests and workers within the CPCA and brings vexatious application after vexatious application before judges in chambers. A number of appeals lie in the “in basket” at the Supreme Court awaiting a hearing. Other judgments are still pending.
One of these applications brought by Kunonga before a particular judge in chambers deserves mention here to illustrate the lengths to which he will go and the astonishing results that, at times, are forthcoming from judicial officers.
It has already been explained that Kunonga had evidently deliberately designed and carried out his breakaway from the CPCA in order to become an archbishop in a new organisation of his own making, and that he had made himself that Archbishop, totally separated from the CPCA and from Anglicanism. It has been explained that he obstinately insisted that, he and the entire Diocese of Harare had left the CPCA and he was still bishop of the Diocese of Harare and all the church property belonged to him. Commonsense, let alone the law, shouts from the rooftops that one cannot be a bishop (or a licenced priest) in one faction (CPCA) and an archbishop in another faction which does not recognise and has broken away from the CPCA, especially as the CPCA has accepted the resignation of the bishop and has defrocked him. But Kunonga kept insisting that the CPCA property, through some obscure untenable reasons, was his and he was bishop of the Diocese of Harare as well as being Archbishop of a body outside and in conflict with the CPCA.
Then, in July 2009 Kunonga put in an urgent application to a judge in chambers challenging the right of the CPCA to ordain and enthrone Bishop Chad Gandiya who was taking over from Bishop Sebastian Bakare, (the bishop who was appointed Vicar-General and Acting Bishop when Kunonga left the CPCA and the Diocese)as Bishop of the Diocese of Harare. In his affidavit Kunonga did an about turn. He now suddenly realized and accepted it had not been lawfully possible to withdraw the Diocese of Harare from the CPCA as this was against the Church laws (which he had up until then ignored). In other words, he admitted without reservation that the Diocese has at all times been part of the CPCA despite his ill-conceived verbal and physical attacks on the CPCA churchgoers, assisted by the police and others to keep them out of what is theirs.
In his affidavit he now argues that as he has conceded the (purported) resolution of the Diocesan Synod dated the 4th August 2007 was invalid, all that he has done after that date must be forgotten and ignored. He will just continue seamlessly from the date of that Synod to be the incumbent bishop and control all the property and funds of the Diocese as if he had never withdrawn from the CPCA and created a schism; becoming Archbishop of his own separate domain. Consequently, he argues, there was no need to have elected Bishops Bakare and Gandiya to be incumbents of his, Kunonga’s, diocese. He goes on to put forward what he seems to maintain is a generous compromise. He is prepared to turn the clock back to the 4th August 2007, reconcile with and forgive all who had been against him and take them back into his fold.
And the presiding judge was perceived in his chambers and in his judgment to have concurred with Kunonga that this reasoning was logical and acceptable! He recognized Kunonga as the present incumbent.
Does such a decision comply with the Rule of Law? Is it just? How can it be possible by any stretch of a tortuous imagination that a person who leaves and clearly stands outside the CPCA, snubs it, forms his own organisation and publicly declares himself its leader and its archbishop, a person who has been deprived of his bishop’s status by the CPCA and, with his followers, is no longer connected with or deemed to be a member of the worldwide Anglican communion; how can such a person who has defied the rules and decisions of the CPCA do a volte face and have the audacity to say he had all along been wrong to assume he could leave the CPCA and take the Diocese with him, but because of his error, he would wind the clock back, return to the CPCA as bishop of the Diocese from the 4th August 2007 and expect to have the CPCA doors open wide to him, the very man who is Archbishop of his own faction opposed to the CPCA? And how can such a process meet with the approval of a judge where justice, fairness, impartiality and the protection of fundamental rights, are supposed to be ingrained as guaranteed tenets of an independent judiciary without fear, favour or prejudice?
In the meantime, despite escalating, unrelenting persecutions aided by the police, the faithful, law abiding Anglican Churchgoers continue to meet in their thousands each week in the open, in parks, outside the churches they are barred by Kunonga from worshipping in, while Kunonga and his fellow “priests” stride through the front door into God’s Houses where the front row is barely filled with Kunonga supporters. In some cases, because no one is present at his “services” Kunonga keeps the churches locked and still will not allow the CPCA Christians to use them. He has banned marriages and funerals in the empty Diocesan churches. He and his few adherents, with police help, have disrupted and stopped confirmation services. He is openly invasive and threatening. But still he has virtually no following.
This is an ideal opportunity for the three political parties to the 2008 Agreement to display actively the need for respect for the Constitution and Law of Zimbabwe and for the police to carry out their duties impartially and be accountable for any abuse of office, and for the judiciary to prove its independence, impartiality and effectiveness in carrying out the law without fear, favour or bias.
Dean and Acting Archbishop
of The Anglican Church
The Province of Central Africa
Date: 4th March 2010