The Diocese of Harare of the Province of Central Africa has received a setback in the legal struggle to assert its canonical status as the rightful expression of Anglicanism in the historic Harare diocese and the proper holder of all diocesan property and financial assets. On Monday of this week, May 3, the nation’s Supreme Court dismissed on the basis of a technicality the diocese’s appeal of an earlier ruling that favored renegade Bp. Nolbert Kunonga. In the complex and convoluted state of Zimbabwe’s legal system the implications of the ruling are not entirely clear, especially in view of the manifest government interference both in the legal process and in the enforcement of rulings.
Bp. Chad Gandiya issued a statement to the diocese and its friends on Friday, May 7, assuring them that the ruling’s implications are limited, that the suit concerning property still stands, and that the diocese will be entering another legal plea that rectifies whatever defects were found by the court in the earlier appeal.
Following is Bp. Gandiya’s statement, after which appears the Voice of America report on the Supreme Court ruling.
DIOCESE OF HARARE CPCA UPDATE – 07/05/10
Dear brothers & sisters in Christ,
Greetings! May mercy, peace and love be yours in abundance.
Events of the last few weeks have left many of you baffled because instead of the expected positive change many have witnessed an escalation of the disturbances. Honourable judge Malaba’s judgment on Monday this week has also added to the confusion of what is actually going on. Most of you will have read in today’s Herald that Dr. Kunonga is calling for reconciliation and was “making all church buildings accessible to all Anglicans on times to be arranged with clergy from different persuasions of the church”. We are therefore writing to inform you about the position of the diocese on the matter and to encourage you all to stand firm in your faith and commitment to the lord Jesus Christ and his Church. First we would like you all to remember that the church is people. You are the church and not buildings even though they are important. Dr. Kunonga if quoted correctly in today’s Herald newspaper seems to be accepting Honourable President Judge Makarawu’s initial judgment that we shared use of church buildings at agreed times until the Courts made a determination on the matter. That matter is still before the High Court of Zimbabwe and we are waiting for a date to be set for the trial. Second, we should guard against discussing church business including matters that are before the courts in the papers. I understand the need both to disseminate correct information to a wider audience and to counteract propaganda and lies that are at times peddled through the papers as “gospel truth” about our situation. This has to be balanced with other prudent considerations such as the wisdom of refusing to play according to someone’s tune no matter how great the temptation may be. Third, do not act on the basis of what you read in the newspapers without checking with us first. Again, we do not conduct our business through the papers. We will inform you officially about any changes to the status quo. For instance, Dr. Kunonga has not contacted the province or us as he indicated in the Herald. If and when he does and the province or diocese has anything to share with you, we will do so without delay. In the meantime if you are able to use your churches please go ahead and do as it is in accordance with Makarawu judgment. If the police prohibit you, please do not resist because it could then end up in violence.
Our response to Judge Malaba’s judgment is as follows:
We, the Church of the Province of Central Africa (CPCA), Diocese of Harare, would like to comment on the article that appeared in The Herald of Tuesday 4 May 2010 entitled Church assets go to Kunonga, The reportage of the article aforesaid is not factually correct. The Supreme Court did NOT declare Dr Nolbert Kunonga and his board of trustees legitimate and did NOT grant them control over properties of the Anglican Diocese of Harare, CPCA.
The Supreme Court granted a chamber application brought by Dr Kunonga to dismiss the appeal noted by the CPCA on a procedural technicality. The appeal brought by the Province related to the High Court Order that was granted by the Honourable Justice Hlatshwayo declaring Dr Kunonga and six others trustees of the Diocese of Harare.
That order vested the custody and control of diocesan property to Dr Kunonga and his six ‘trustees’ who have since left the CPCA and formed their own organization known as the Church of the Province of Zimbabwe and made Dr Kunonga archbishop of that church.
Since Dr Kunonga and his six ‘trustees’ are no longer part of the CPCA, they cannot, and are not part of the church that owns the property to which they are ‘trustees’. It is for this reason that the CPCA appealed against the order of the Honourable Justice Hlatshwayo.
The main matter pertaining to the ownership of diocesan property is still pending in the High Court and has not been disposed of. Since that matter is still pending in another court, the Supreme Court did not make any fining on it. It is therefore a misnomer to report that diocesan assets now belong to Dr Kunonga as the ownership of assets was never an issue in this appeal. The High Court in the not too distant future, will determine the main property issue.
The CPCA also notes that in an article published on the front page of The Herald on Friday 7 May 2010, Dr Kunonga is alleged to have stated that all churches in the diocese were now accessible to all Anglicans on times ‘to be arranged with clergy from different persuasions of the Church’. This is indeed the way it ought to have been as set out in the ruling of the Honourable Justice Makarau were it not for the illegal use of the police to bar CPCA parishioners from accessing church premises in clear contempt of the ruling.
The CPCA has always complied, and will continue to comply, with court orders issued by the courts of Zimbabwe. The CPCA will be filing an application to re-instate the appeal to the Honorable Justice Hlatshwayo’s order with the Supreme Court to ensure that the matter is determined on the merits.
My brothers and sisters in Christ, remember the words of St. Paul in 2 Cor. 2:7-10: “…we are hard pressed on every side, yet not crushed; perplexed, but not in despair; persecuted, but not forsaken; struck down, but not destroyed – always carrying about in the body the dying of the Lord Jesus, that the life of Jesus also may be manifested in our body”.
Now, to him who is able to keep you from falling and to present you before his glorious presence without fault and with great joy— to the only God our Savior be glory, majesty, power and authority, through Jesus Christ our Lord, before all ages, now and forevermore! Amen.
Every blessing in Christ,
The Voice of America article:
Zimbabwe Supreme Court rules for controversial Harare Anglican Bishop Kunonga
Zimbabwe Supreme Court Deputy Chief Justice Luke Malaba said the Anglican Church of the Province of Central Africa had improperly lodged its appeal as it had filed the application less than five days after notifying its opponent
Sandra Nyaira | Washington 04 May 2010
The long-running battle for control of the Anglican Church in Harare, Zimbabwe, took a new turn on Monday as a Supreme Court judge threw out an appeal by the Anglican Church of the Province of Central Africa challenging a 2009 High Court ruling declaring former Harare Bishop Nolbert Kunonga and his board are legitimate.
Upholding the ruling, Deputy Chief Justice Luke Malaba questioned the way the province lodged its appeal, saying it had abused the system. He said judicial procedure requires notice of appeal to indicate the application will be made on a date in future, not less than five days from the date of its service on the respondent as was done.
“It is ordered that the appeal noted in case SC 180/09 be and is hereby dismissed in terms of rule 36(3) of the Supreme Court Rules with costs on a legal practitioner and client scale,” read part of Malaba’s ruling.
Malaba’s ruling was based on the technicality that the CPCA had not followed proper court procedures in filing their appeal. The deputy chief justice said the CPCA had not provided security costs for the appeal within the prescribed time and as such were under an automatic bar imposed by the court.
High Court Justice Ben Hlatshwayo ruled in 2009 that the Kunonga church board was legitimate. The CPCA then approached the Supreme Court to appeal this decision.
Speaking on behalf of Kunonga, Bishop Alfred Munyanyi told VOA Studio 7 reporter Sandra Nyaira the ruling means the dispute is over and Kunonga has full control of the church’s properties and assets.
But Central Africa Province registrar and legal representative Mike Chingori said a separate ruling on the church properties is still pending, saying his clients will continue their fight to win back control of the Harare churches.