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Lawyers welcome ruling on Anglican property

Zimbabwe Lawyers for Human Rights (ZLHR) welcomes the judgment delivered by the Supreme Court on Monday 19 November 2012 in which the court upheld an appeal by the Church of the Province of Central Africa (CPCA) led by Bishop Chad Gandiya, and set aside two judgments that had been granted in favour of the Nolbert Kunonga-led “Diocesan Trustees for the Diocese of Harare” entitling them to control of Anglican church properties.

Bishop Chad Gandiya (left) is congratulated by members of the Anglican Church of the Province of Central Africa after the Supreme Court ruling gave them power over church property that was in the hands of the Province of Zimbabwe led by Dr Nolbert Kunonga.
Bishop Chad Gandiya (left) is congratulated by members of the Anglican Church of the Province of Central Africa after the Supreme Court ruling gave them power over church property that was in the hands of the Province of Zimbabwe led by Dr Nolbert Kunonga.

In a judgment delivered by Deputy Chief Justice Luke Malaba and agreed to by Judge of Appeal Justice Vernanda Ziyambi, and Acting Judge of Appeal Justice Yunus Omerjee, the Supreme Court ruled that the church property which had been at the centre of the long-running dispute belongs to the CPCA and that it has a right to an order for vindication of its property from possessors who have no right to have it.

The Supreme Court concluded that the court a quo was wrong to give Kunonga and his followers the right to possess and control the property of the CPCA without its consent and that the breakaway diocese which the ex-communicated church leader formed had no right to continue in possession of the congregational buildings as they departed from the fundamental principles and standards on which the Church is founded.

The landmark judgment that is, in our considered view, legally sound has put all perpetrators and potential perpetrators of rights violations on notice: the violation of religious rights will not be tolerated by the courts, and nobody is above the law – including those who claim to be superior human beings by virtue of their allegiance and association to certain political parties.

Where rights have been gravely violated, as was so clearly the case in this matter, this was the only possible outcome that could have been expected from the courts. This is a judgment that ZLHR highly commends as consistent with the Rule of Law and the Constitution which guarantees freedom of assembly, association and conscience. It offers welcome finality in a matter that had dragged on for an unwarranted period.

The decision reaffirms the right to freedom of thought, conscience, and religion as enshrined in Article 18 and 30 of the Universal Declaration of Human Rights, Article 27 of the International Covenant on Civil and Political Rights and Article 8 of the African Charter on Human and Peoples’ Rights, all of which emphasise that no one may be subjected to measures restricting the exercise of these freedoms.

We recognise that there were also some judicial officers in the courts a quo who tried to protect the CPCA and several of the church’s parishioners, but whose court orders were flagrantly defied with impunity, especially by State actors such as the police. This practice must be condemned and must come to an end, both to protect institutions and individuals who have had their rights violated, and in order to restore the dignity of the courts and public confidence in the justice delivery system.

In a democratic society, such untenable failures should lead to the head of the affected institution resigning his or her position. At the very least, we would expect, in a democratic society, to see such public official publicly accepting responsibility for the professional and ethical failures of those who enforce laws on his or her behalf.

The police have a duty to perform their functions in accordance with the law, uphold the dignity of those before the courts, exhibit impartiality, and avoid any kind of discrimination in order to protect the public interest. The police also have a duty to be aware of and ensure the protection of human rights and fundamental freedoms such as the right to freedom of thought, conscience and religion.

ZLHR trusts that the Supreme Court ruling, which shows the court’s resolute stance in upholding the tenets of democracy and basic universally recognised human rights, will act to provide confidence to the lower courts to act in a similar manner to ensure such violations do not recur, and so contribute towards putting an end to the endemic culture of impunity in our Zimbabwean society.

Immediate and concerted action should also be taken to investigate and prosecute the perpetrators of the violations that, for almost six years, visited Anglican Church parishioners including the disadvantaged young children at CPCA-run orphanages around the country. Such action will have the effect of contributing positively to the restoration of public confidence in the justice delivery system.

ZLHR will continue to monitor the situation and see whether such actions will be forthcoming, as we believe that this has a direct bearing on whether key State institutions are complying with the Constitution of Zimbabwe and the Interparty Political Agreement to restore and adhere to the principles of the Rule of Law and guarantee the full implementation and realisation of the freedoms of assembly and association, which in turn has implications on regional and international confidence in the democratisation of our country, through its inclusive transitional government.

ZLHR now looks to the Executive organ of the State, which has the responsibility to enforce the law, it being the one that is in charge of the State machinery. In enforcing court orders, the Executive complies with its responsibility to ensure that citizens enjoy the right to the protection of the law which right is provided for in our Constitution.

A culture of defiance of court orders severely undermines the judiciary and the justice delivery system and entrenches a culture of impunity and lawlessness. Such a state of affairs is not good for anyone in society. It is therefore hoped that compliance with the Supreme Court order should mark the beginning of an era where both non-State actors and State actors such as the law enforcement agents will comply with every court order, whether palatable to them or not.