RELIGIOUS FREEDOMS AND THE LAW; AN ANALYSIS OF THE RELATIONSHIP BETWEEN THE STATE AND RELIGIOUS ORGANISATIONS

The Oxford Dictionary defines religion as the belief in and worship of a superhuman controlling power, especially a personal God or gods. There are many religions in the world, each with its own unique set of behavior, hierarchy, dogma, ceremonies and style of worship. Each religion has always thought of itself as being right and superior to the next. As a result of these distinctions and a selfish sense of superiority, discussions of religion have always evoked emotional sentiments, divisions and in many cases violence. This has been the case from the biblical times through the crusades and still prevails today through the various episodes of terrorist attacks inspired by religion, albeit with lesser violence, if one is to discount the terrorists.

Uganda, has not been any different. As a nation, we have experienced and still experience many religious based contestations between the different religions, the most notorious being the religious wars of 1888 – 1892. The impact of the above wars coupled with the onset of British protectorate rule, set the foundation for subsequent conflicts and sentiments of religious alienation. While religion has over the years, played a very fundamental role in supporting the social, educational and medical developments in the country, it has also been behind some of the worst events. From the various rebellions such as the Lord’s Resistance Army (LRA), the Holy Spirit Movement of Alice Lakwena, the Allied Democratic Forces (ADF), the Kanungu massacre of 2000; vague religious ideologies have informed the creation, practices and operations of these groups’ unmatched impunity and with resultant devastating consequences.

Informed by the above history, the framers of the Ugandan Constitution were mindful of the need to create a balanced and enabling environment for all the different religious groups to freely operate. It has been said by the South African Constitutional Court, that a Constitution is the “autobiography of a nation”, the “window to a nation’s soul” or the “mirror in which a society views itself”. This is indeed true of our Ugandan Constitution. Articles 7 and 29 of The Constitution of the Republic of Uganda, 1995 prohibit Uganda from adopting a State religion and every person is guaranteed freedom of thought, conscience and belief and the freedom to practice any religion and manifest such practice, which includes the right to belong to and participate in the practices of any religious body or organisation in a manner consistent with this Constitution.

From the time the 1995 Constitution was promulgated, Uganda and Ugandans have for the greater part enjoyed religious freedoms and save for some complaints  in some circles (which is humanly expected) it would be pretty impossible for any group to complain of blatant religious intolerance, discrimination or persecution, at least not from the state. The Constitutional spirit has also been buttressed by the Political leadership, especially from the President, who has historically endeavored to strike a balance in many of the executive appointments, of course with varied levels of success, as there are definitely many other considerations to be factored in, in addition to religious affiliations.

It is partly on account of Uganda’s legal enabling environment, that there has been a recent increase in the number of independent religious communities, especially among the Christians. As expected, almost each group or church operates with its own style of worship, set of principles/ dogma, rites and hierarchy among others, and seem to be centered on individual personalities rather the hitherto ‘traditional’ religions which are organized around institutions.  As expected, some sections of the public have voiced concerns around the lifestyle of some church leaders which is alleged to be funded by the perceived vulnerable and desperate members using the prosperity gospel.  But that is an entirely different discussion, which would entail theological or doctrinal evaluations, which I don’t seek to attempt here.

Some people have however mooted the idea of regulating churches in a bid to control what is perceived to be the prevailing extreme ‘religious freedom’. These people, as reported in the media are championed by the Minister of Ethics, Rev. Fr. Simon Lokodo and Hon. John Baptist Nambeshe (NRM, Manyija County). While the latter has since has withdrawn his proposal to introduce the Religious Organisations’ Bill 2019 intended to regulate religious Organisations in the country, the former’s plans to introduce a Policy to regulate religious Organisations is still being mooted and can’t be discounted at this point in time.  As expected, some religious groups, such as the members of the Inter- Religious Council of Uganda have come out in support of the proposal while various Pentecostal pastors and churches have vehemently opposed the same, fearing that it is a disguised witch-hunt against them.

While I have not had the benefit of reading through any text of the proposed policy, assuming it exists, it is imperative that we revisit the parameters of the constitutionally recognised religious freedoms and cast it against the context of our prevailing circumstances.

For starters, no religion operates in a vacuum. Accordingly, no individual or community or believers, can claim an automatic right to be exempted by their beliefs from the laws of the land. Similarly, no democratic country should promulgate laws that cause extreme pain to the believers and conflict of loyalty between fidelity to their beliefs or else respect and fidelity to the law of the country. Fortunately, the Ugandan Constitution creates no such conflict.

The Hon. Justice Stephen Mubiru, in the case of Rev. Fr. Cyril Adiga Nakari versus the Rt. Rev. Sabino Ocan Odoki & the Registered Trustees of Arua Diocese, High Court of Uganda sitting at Arua, Civil Suit No. 02 of 2017, delivered a Judgment, which is by far, one of the most exhaustive and comprehensive legal analyses of the constitutionally guaranteed freedom of religion. While the case dealt with an intra- religious dispute, the principles discussed therein are definitely applicable across the entire religious spectrum and most importantly are part of our law. The Court in the above case, made several findings that are of paramount importance to the current public discussions surrounding the proposed policy, which all parties ought to reflect on;

The Court discussed the relation between the State and the Church as one based on two principles. “First, that there is no State Church; Church and State are separated. Second, “religious bodies” regulate and administer their affairs autonomously (independently but in cooperation with the state) within the limits of the law, i.e. the right of churches and other religious communities to conduct religious activities autonomously (e.g., build places of worship, conduct worship services, pray, proselytise, teach, select their own leaders, define their own doctrines, resolve their own disputes, etc”. To further emphasise this second principle, the Hon. Justice Stephen Mubiru further held that, “Those religious bodies which are “recognised by the law” may then arrange and administer their inner affairs autonomously, for the accomplishment of their declared mission in the world. They are entitled to organise themselves according to their own creed, own, acquire and administer property, movable or immovable, and maintain institutions for religious or charitable purposes. They are free to organise their own ceremonies, exercise worship, and undertake such other related activities. No public authority may interfere in the designation of their religious ministers. Neutrality of the state can be seen as the most important principle governing the state in regard to religious communities. The separation of Church and state not only means that the State should not interfere with the internal workings of any church, but also that no state pressure may be applied in the interest of enforcing the internal laws and rules of a church. Church autonomy means the right of religious communities to decide upon and administer their own internal religious affairs without interference by the institutions of government”.

The Court further stated that, “Fundamental rights can be limited only if this is inevitable to ensure another fundamental right or constitutional interest. The limitation has to be proportionate to the goal that is intended to be achieved. With this balancing test, courts consider whether a general law, if applied to a religious institution, would inhibit its freedom more broadly than justified and, in those circumstances, courts could exempt the church”. The Court also stated that religious freedom can be curtailed by the state in, “furtherance of a compelling public interest or pressing social need that is necessary in a democratic society and represents the least restrictive means of furthering that compelling public interest…”

The takeaway points from the above holding, are that; all religious groups should from the onset of their set up comply with the laws of the Country regarding the incorporation and establishment of legal capacity. Gladly, the country already has various laws to take care of this, notably the Companies Act and the Non-Governmental Organisations Act, which I believe, have been followed by many of the religious Organisations.   One of the justifications for the creation of the Policy, at least going by the public utterances of the Reverend Canon Aaron Busingye, the Director for Religious Affairs in the Ministry of Ethics and Integrity, is to vet and recommend the registration of religious Organisations. It begs the question of whose religious yardstick will be used to vet religious Organisations or leaders, as there has never been any unanimity regarding these issues. This would be a potential ground for abuse and discrimination. I would rather the Government sticks with compliance and monitoring, to ensure that all religious groups are duly set up under the law.

The second take away point is that, religious Organisations need to be reminded that the enjoyment of religious autonomy does not in any way extinguish the capacity of the state to intervene in their internal affairs if the public interest is threatened. Unfortunately, the Ministry of Ethics, has not attempted to demonstrate what public interest, if at all, has been threatened. The common complaint of people giving tithe or other types of offerings are not only based on many religious texts but are also voluntary in nature. How would a government regulate such for example? Such interventions would for all intents and purposes be very appropriate to curb the extremism that culminated in the Kanungu massacre. On the 2nd day of December, 2000, the then second deputy prime minister and minister of Internal Affairs Moses Ali announced the creation of a judicial commission of inquiry into the Kanungu massacre. The Commission had terms of reference including; to define a cult, establish what happened at Kanungu and reveal the perpetrators of the murders. The commission would also provide government with recommendations on how to avoid such incidences in the future. The team had six months in which to execute its work. Unfortunately, the commission never met to date. That was a missed opportunity, which hopefully will not leave room for a similar occurrence in future. This is perhaps one issue that the government ought to pay more attention to and I believe, would receive greater public acceptance.

The third take away point is that; the Ministry of Ethics needs to be reminded that the government cannot under the present constitutional framework, get involved in regulation standardization of the training, selection and appointment of ministers/ leaders for the respective churches, as such matters fall under the ecclesiastical domain and therefore outside state control. There are however, a number of issues such as the incorporation of religious Organisations; planning and building standards; noise/ environmental pollution; employment laws e.t.c, which would properly fit within the realm of the state and whose enforcement by the relevant state actors, would be very appropriate.

As I conclude, the different religious groups need to have a common voice on some of the proposed issues that delve into the realm of ecclesiastical matters. There is more that unites religious Organisations (especially Christians) than what divides them. An affront against one group is an affront against all. It is in that regard befitting to conclude with the timeless words by the German Lutheran pastor Martin Niemöller, “First they came for the socialists, and I did not speak out— Because I was not a socialist. Then they came for the trade unionists, and I did not speak out— Because I was not a trade unionist. Then they came for the Jews, and I did not speak out— Because I was not a Jew. Then they came for me—and there was no one left to speak for me”.

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