On Monday 19th June 2017, in an article published by the New Vision, Dr. Joseph Serwadda wrote endorsing a move by government to pass out the Religious and Faith-Based Organisations Policy.
However, Makerere University 4th year law student and former guild presidential aspirant, Simon Ssenyonga in a rebuttal thinks the celebrated man of God made his submission in complete contravetion of the law regarding freedoms of worship and association as enshrined in the constitution of the republic of Uganda.
The pastor highlighted that one of the challenges facing the Born again faith is from the procedural anomalies due to ineffective legislation that can regulate its activities conduct. According to the pastor, the State has the right to put in place guidelines for “anything it considers useful” to societal growth for common peaceful co-existence with others of like spirit and that the state is justified to put in place a legislation to allow law abiding citizens to enjoy their religious freedom, to “wade off” detractors and “plan well” for the future generation.
“Whereas this opinion sounds right and persuasive, it is flawed with legal anomalies, grave factual inconsistencies, isolated incidents portrayed as a general representation of the status quo and subsequent justification of a policy that will lead us down the path of violation of constitutionally enshrined and protected fundamental and other human rights and freedoms”, Ssenyonga says in his article.
“I hold fundamental disagreements with Dr.Serwadda, principally, on legal grounds but subsequently on basic commonsense”, he added.
Ssenyonga states that basic human rights are inherent and cannot be seen to be granted by the state let alone its operatives. Citing articles 21, 29, and 43 of the constitution, he explains the level of limitations these freedoms of worship and association could be subjected to and proves his case that the government plans that Dr. Serwadda seemed to back are in complete contravetion of existing law, international charters and declarations of basic human rights.
Accordingly therefore, Ssenyonga says the Constitution simply does not permit the State, or anyone else to decide what beliefs and practices would be acceptable and what wouldnt, or to clamp down on those churches and pastors whose beliefs and practices are deemed ‘unacceptable’ because that would be a gross violation of religious freedom and autonomy, and freedom of association!
Below is his full article;
LEGISLATION ON THE BORN AGAIN CHURCHES IS UNECESSARY.
By Simon Ssenyonga.
In an Article Published by the New Vision Newspaper on Monday 19th June 2017, Dr. Joseph Serwadda (“presiding Apostle of the Born Again Faith”) made a case for the Religious and Faith-Based organisations policy that is now in its formative stages. He labored to give us a historical perspective of the dark days of the Church in Uganda generally and the Balokole movement specifically. He also highlights that one of the challenges facing the Born again faith stems from procedural anomalies due to ineffective legislation that can regulate its activities and even conduct. Voraciously, he asserts that the State has the right to put in place guidelines for “anything it considers useful” to societal growth for common peaceful co-existence with others of like spirit. In his tripartite conclusion, he wraps up the policy to be one that caters for registration of religious entities; a guarantor of perpetuity of churches and other worship places and equality of Born Again Churches to other traditional faiths in the face of the Constitution. Finally, he boldly affirms that the State is justified to put in place a legislation to “allow” those “law abiding” citizens to enjoy their religious freedom, to “wade off” detractors and “plan well” for the future generation.
Whereas this opinion sounds right and persuasive, it is flawed with legal anomalies, grave factual inconsistencies, isolated incidents portrayed as a general representation of the status quo and subsequent justification of a policy that will lead us down the path of violation of constitutionally enshrined and protected fundamental and other human rights and freedoms. I hold fundamental disagreements with Dr.Serwadda, principally, on legal grounds but subsequently on basic commonsense.
Basic human rights principles ought to be stated. Human rights are inherent and not granted by the state. This means that the state, its operatives, institutions and/or apologists/diehards cannot posture as the guarantors and rewarders of human rights. Human rights are universal, interdependent, and indivisible and interrelated. As such, human rights do co-exist and in essence are not self-supporting or self-executing. A violation of one human right could lead to the subsequent violation of another human right.
The freedom of religion is enshrined in Article 29 of our Constitution. This right is exercised together with the freedom of expression and assembly. As such, a violation of this right would lead to the automatic violation of other rights. This right is not an absolute right and can be limited under Article 43.Enjoyment of this right is subject to non-discrimination under Article 21.Internationally, Freedom of religion or belief is enshrined in Articles 18 of both the Universal Declaration of Human Rights (UDHR) and of the International Covenant on Civil and Political Rights (ICCPR), which should be read in the light of the UN Human Rights Committee’s General Comment Number 22 and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. In relation to its limitation, reference ought to be made to the Siracusa Principles on the Limitations to the rights under the ICCPR and leading common law authorities such as the Uganda Supreme Court Decision of Charles Onyango Obbo and Another versus Attorney General, Reverend Christopher Mtikila v Attorney General and a plethora of cases from the African Commission, African Court on Human and Peoples Rights, European Court on Human Rights, communications from the Human Rights Committee of the ICCPR, General Recommendations and reports of Special Rapporteurs and Digests on Freedom of belief and religion. This right has two components (a) the freedom to have or not to have or adopt (which includes the right to change) a religion or belief of one’s choice, and (b) the freedom to manifest one’s religion or belief, individually or in community with others, in public or private, through worship, observance, practice and teaching. Theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief are protected under article 18 ICCPR. The terms “belief” and “religion” are to be broadly construed and the article’s application should not be limited to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. States should not restrict the freedom to hold any religion or belief. Coercion to change, recant or reveal one’s religion or belief is equally prohibited.
While it is so that some ‘Pastors’ hold some very strange (often unbiblical) beliefs, it is not for the State or any institution (as a “State institution”) to tell pastors, or their congregants, what they may/should, or may/should not, believe and how they may/should give outward expression to those beliefs. The right to believe whatever one wants to believe, belongs equally to the Pastor who believes that God can heal the sick, and to the ‘Pastor’ who believes that a flower can turn to chocolate in a person’s mouth. From a legal point of view, both should be free to believe, preach and teach, and practise that belief – without questioning, or interference by the State. (That is not to say that, from a Biblical point of view, the Church itself should not mark ‘pastors’ who, in the name of Christianity, teach false doctrines). By the same token, in terms of our Constitution, anyone is free to start a new church (whether in a building, a tent or under a tree) and invite others to be a part of such voluntary association of persons for religious purposes. This right to establish religious associations, assemble and secure premises for these purposes, is fundamental to the right to freedom of religion.
The draft policy is hinged on protection of national values such as accountability. This would be used as a mechanism of curbing exploitation especially by the self-appointed and media-created Pastors/ministries as Dr. Serwadda would love to call them. Subsequently, Pastors would be required to give evidence regarding “the mechanisms utilised by the church to generate and/or receive income (tithing / pledging / donating / offerings / investments)”, and also “how the income from the church is utilised (salaries / investments / community work.)”. To this end, the policy will require pastors to produce the Church’s annual financial statements, as well as bank statements of all bank accounts of the Church. Again, while I understand the Directorate’s concern for financial propriety in religious communities, my concern is for issues of doctrine which should be safe from investigation and/or regulation. For many believers, tithing is a Biblical command (based on Scriptures such as Matthew 23:23), and no church should have to defend its doctrine in this regard. In similar vein, some churches hold the view (based on Scriptures such as 1 Timothy 5:17-18) that the Bible commands them to make sure that their Pastors do not just scrape by but are well-paid – for them it is a doctrinal issue and as such, one in which the State has no business.
To the extent that the FRBO policy requires pastors to give evidence regarding “the institution where they studied and where they received accreditation”, and proof of the “person/s or the authority that ordained them”, again my concern is that this aspect of the investigation is touching on doctrinal issues. Some churches (particularly those who view church as “an institution”) will only appoint persons who hold a degree in theology or are similarly qualified, to positions of leadership in the church; other churches believe that the only qualifications for leadership are those set by Scripture. According to their interpretation of Scriptures such as 1 Timothy 3:1-13, it is not theological training that qualifies one for appointment as a pastor (or deacon) in the church, but godly character and a sense of the call of God to ministry. As such, the issue is squarely doctrinal.
Whereas I share the concerns about unscrupulous pastors who abuse their positions to manipulate the poor for selfish gain, I’m more concerned that the scope of coverage of the proposed policy is overbroad and touches on matters of religious doctrine which are protected from State interference. In similar vein, the proposed solution to the problem, namely “self-regulation” of religion (including the Church), is not a workable or a constitutionally permissible solution. The South African Constitutional Court in Prince v President of the Law Society of the Cape of Good Hope, 2002 found that people should be free to believe, teach and preach, and practise their beliefs without interference or punishment by the State, no matter how “bizarre, illogical or irrational” those beliefs may seem. Doctrine (being a belief or set of beliefs) is therefore protected by the Constitution and, as a matter of principle, is immune from interference or restriction by the State or by anyone else – unless there is a constitutionally acceptable purpose for the interference or restriction. Such an aspect should satisfy the detailed preconditions under Article 43 of the Uganda Constitution.
The proponents of this draft policy advance the notion of self-regulation of the Church. Again, it is important to understand that “self-regulation of the Church” in the sense proposed by the policy, does not mean that churches will be free to regulate (meaning “govern”) their own internal affairs, free from interference or restriction by the State or anyone else. Instead, one of the ideas that have been mooted is the creation of a central oversight body, made up of representatives of the various Born-again faith, but which body is recognised by the State and has the power of the State behind it by reason of the legislative regulations creating such body, and giving it its powers, functions and responsibilities, in the first place. It is “self-regulation of the Church” in THIS sense that raises deep concerns.
Firstly, because religious freedom guarantees people the right to make up their own minds as to what they believe (including how they interpret the Scriptures) and also how they practise their beliefs. The State cannot regulate this, and neither can it be regulated by a State-recognised religious group who would have the force of the State behind it. The Constitution simply does not permit the State, or anyone else for that matter, to decide what beliefs and practices would be acceptable and what not, or to ‘clamp down’ on those churches and pastors whose beliefs and practices are deemed ‘unacceptable’. This would be a gross violation of religious freedom and autonomy, and freedom of association!
Contrary to what has been suggested, pastors are not the same as lawyers, engineers, doctors or social workers. While it is obvious that, in the case of lawyers, doctors and social workers, a certain level of knowledge and expertise is required in order to qualify and practice as such, this is not necessarily true of pastors who (as many would believe, according to their interpretation of the Scripture) are qualified by godly character and the call of God only. If the State (or an oversight body recognised by the State) were to insist on a theology degree from a university (many of who teach very liberal theology) or similar qualification in order for a person to be formally recognised as a “pastor”, the State would be elevating itself above the Word of God and require what God Himself does not. (Think about John the Baptist and the Twelve Disciples – none of them had special training in the Scriptures qualifying them for ministry. Even Jesus Himself would have been disqualified for lack of “accreditation”!). Placing such restrictions on leadership, would be a serious overstepping on the part of the State and a gross interference with religious freedom and the autonomy of the Church to govern her own affairs.
Further, from a church history point of view, regulation (even “self-regulation”) cannot be supported. Church history has shown that regulation by any human body with the power of the State behind it, always ends up persecuting the true Church. One only needs to think of John the Baptist, Jesus and The Twelve who were not recognised by the religious oversight bodies of their day and thus persecuted and often killed by the State. History shows Luther breaking away from Catholicism to reform the Church, and Protestants breaking from Protestants to reform the Church. None of these could have happened with a State-recognised group deciding what is “acceptable”.
We must remember that even the great reformer and theologian Calvin (who had the State backing him in ecclesial power) ordered the drowning of the Anabaptists because he believed the doctrine of adult immersion (baptism) heretical. Or later, Calvinists who persecuted Arminians, closing their churches, arresting and killing their pastors and driving out Arminian belief and Christians from much of Europe – with the power of the State. Also, Wesley and Methodist churches, along with many Protestant, charismatic churches could not exist had this State power not been removed from the Calvinists.
In terms of the common law, churches or Pastors who make themselves guilty of fraud, or misappropriation of funds, can be prosecuted by the Police and be held liable in terms of the criminal law. Likewise, pastors who place congregants lives or health in danger by forcing or unduly influencing them (in the name of religion) to do certain things, could have criminal charges pressed against them (for example for assault or causing serious bodily harm, or attempting to do so) and if found guilty, be fined and/or imprisoned. Where emotional or psychological abuse takes place, and/or a congregant’s dignity is impaired, such a Pastor can likewise be charged with “crimen inuiria” under the criminal law. Where “churches” in fact operate as drug cartels or terrorism hubs, they should be prosecuted in terms of the drug trafficking, money laundering, terrorism and/or organised crime legislation.
The same principle would apply in respect of unlawful activities conducted by members or leaders of other religions. For example, Satanic rituals involving human sacrifice, rape, child pornography, ritual abuse (of for example children) among others should be prosecuted under the criminal law. Likewise, terrorism and/or the killing of innocent people in the name of religion (for example by ISIS, being a jihadist Islamic extremist group), should be prosecuted under the various existing terrorism and criminal laws. These laws can be better implemented and policed other than regulation if indeed the purpose of such regulation would solely be for administrative and financial accountability and not to regulate doctrine.
Rather than creating another regulatory body, I propose that government be called upon to strengthen the Directorate of Ethics and Integrity by providing resource and funding for the establishing of a Specialised Investigation Unit within the Directorate, to whom religious leaders that are suspected of criminal activity can be reported and which Unit will work with the relevant authorities and the Police to investigate and ‘clamp down’ on such persons or organisations.
In addition, the Directorate has a major role to play in educating Pastors and/or Churches with regard to the various laws that apply to them, and assisting them to some degree in complying therewith for example by making available example Constitutions and Memorandums of Incorporation (MOIs), helping them to apply for marriage licences in terms of the Marriage Act among others. The Directorate can encourage (but not force) Preachers to undergo theological training, and even point them to different accredited institutions and/or Bible schools for this purpose. Ideally, the Directorate would function as a “one stop shop” for Pastors and/or churches on issues affecting them, and to this end also I would support any proposals to government for resource and funding that will further empower the Directorate to serve the religious community in Uganda.
The suggestion that born agains are seeking some sort of equality with the traditional faiths is extremely outrageous, baseless and petty. The spirit of this statement portents existence of elements of discrimination. Why would the Church, as the Presiding Apostle purports, clamor for state recognition as other than recognition by God? Granted, the deviant teachings are existent but what is the Biblically prescribed way of addressing them? Where have we placed the essence of scriptural accuracy while addressing contentious issues? The potency, spiritual enlightment, sacredness, revelational empowerment, manifestation and demonstrable power of scripture should not be watered down by myopic views espoused in empty coinages and loathed verbiage such as the Bible being a set of rules and regulations.” Wrong teachings in the Church can and must be addressed by emphasizing and teaching the right gospel and not legislation against certain religious groups. This attitude of “tusaba gavumenti etuyambe” (we beg government to help us) should neither be allowed to creep nor blossom in the Church. As soon as it’s detected, it should be expunged.
If we do not learn from history, we will continue to make history’s mistakes and need I add that history is good if dealt with historically. Luther said, “The Church is always reforming herself” and a regulatory body of power over all as would be the import of this impugned legislation, would stop the Church from being able to reform, persecuting the new moves of God’s Spirit. Whereas credence can be rendered to shortfalls and self-inflicted challenges and resonating justifications, the modern day church cannot be curtailed in the face of constitutionally guaranteed rights and freedoms as profound as the freedom of worship and subsequent international obligations that our dear state ought to fulfill. The tough societal fiber weaved from keen observance, protection and promotion of this freedom is a guarantee to our esteem of Constitutionalism and abhorrence to “Constitu-cide” (the murder of the Constitution-akin to suicide).
The writer is a law student at Makerere University Kampala and a born again Christian.
