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Alaso wedding exposes gaps in Church laws

By Vision Reporter

Added 16th January 2008 03:00 AM

THE marriage between Alice Alaso to Johnson Ebaju is still generating comments from the public. Most commentators have focused on whether Bishop Obaikol was morally right when he solemnised the marriage between Alaso and Ebaju in the Church of Uganda (COU) and what the Bible says about divorce.

By Irene Mulyagonja

THE marriage between Alice Alaso to Johnson Ebaju is still generating comments from the public. Most commentators have focused on whether Bishop Obaikol was morally right when he solemnised the marriage between Alaso and Ebaju in the Church of Uganda (COU) and what the Bible says about divorce.

On December 26 2007, John Omoding reported in The New Vision that the planned wedding had split the COU and Pentecostal Churches. While Bishop Obaikol of the COU had no qualms about solemnising the marriage, the Rev. Francis Atwau, representing the Pentecostal Assemblies of God (PAG) where the Ikiria/Ebaju marriage took place in 1989, insisted that Mr. Ebaju could only remarry in church after Ms. Ikiria’s death.

Ms. Ikiria was also led to believe that her former husband could not lawfully remarry in church as is indicated in her statements published by The New Vision on December 18, 2007 in Woman challenges MP Alaso’s wedding, and on December 30, 2007 in; Drama at Soroti MP Alaso wedding. Many others have been inclined towards the same view.

To date, no legal analysis of this controversial situation has been done. This is an attempt to bring to light the position of the Laws of Uganda on divorce and remarriage, vis-à-vis the Canons of the COU, and scripture on the same. I do not claim to be an authority on the Bible and that aspect needs a lengthy clarification to reconcile the scriptures which leave some doubt about what the position is. Interpretation would depend on what beliefs the interpreter espouses and other ideological perspectives that he/she bases the interpretation on.

Briefly, the basic biblical principle is that God “hates divorce,” (Malachi 2:16). However, Jesus Christ in Matthew 5:32 says “Whoever divorces his wife for any reason except sexual immorality causes her to commit adultery, and whoever married a woman who is divorced commits adultery”. Later in Matthew 19:8-9, in response to the challenge by the Pharisees, Jesus responds: “Moses, because of the hardness of your hearts, permitted you to divorce your wives, but from the beginning it was not so. And I say to you, whoever divorces his wife, except for sexual immorality, and marries another, commits adultery; and whoever marries her who is divorced commits adultery.”

These scriptures have been interpreted by most Christians to mean that divorce is only biblically correct where one of the spouses has committed adultery. This seems to be the origin of adultery as the main ground for divorce for both men and women in the common law tradition, and is thus the main ground for divorce in the Divorce Act. The other possible ground for divorce stated in the Bible is abandonment by an unbeliever (1 Corinthians 7:15). Review of the Canons of the Catholic Church, the Canons of COU and writings of the Orthodox Church on marriage, reveals that only the Catholic Church is unequivocally against divorce, and remarriage in church. However, both the Pentecostal Churches and the COU denounced the marriage between Hon. Alaso and Mr. Ebaju after it had taken place and castigated Bishop Obaikol for solemnising it. The most controversial reactions came from the Dean of the COU, Bishop Nicodemus Okille as published by The New Vision on December 31; ‘Church rejects MP Alice Alaso’s wedding,’ and Mr. Kenneth Kakuru, A divorcee cannot marry in church, The New Vision January 11, 2008. Bishop Okille stated that “The Canons, the doctrines and the dogmas don’t agree with that kind of wedding. My brother Charles wedded them against the Canons of the Church. Only the one who wedded them might recognise it.” Mr. Kakuru affirms this when he states “Alaso’s marriage in ‘church’ is therefore illegal. However, she may wish to legalise it by having it registered at the civil registry.”

Mr. Kakuru’s statement came hot on the heels of Arthur Baguma’s feature article in which he reported that Bishop Zak Niringiye of All Saints Church Nakasero (where Mr. Kakuru is a member of Fathers Union) clarified that the Canons of COU allow for remarriage even where a spouse of a divorcee is still living. Interestingly, Bishop Obaikol had also stated both before and at the wedding that he decided to solemnise the contested marriage on the basis of the Canons of the COU. The COU owes us all a clear explanation why its priests and legal counsel have different interpretations of its Canons. If the COU has a policy not to wed previously divorced persons, which is contrary to its Canons, then this should also be clarified. Review of the arguments that have been going on about this contentious marriage and the divorce before it clearly point to conflicts between scripture, the Canons of the COU, and the laws of Uganda on divorce and remarriage. However, whether one should remarry in church after a divorce or not is not a new dilemma. The historical division of the Anglican Church from the Catholic Church was partly the result of an attempt to resolve this question in favour of those who wish to remarry in church after divorce granted by the secular courts.

Church of England History
The story goes that King Henry VIII of England wanted to dissolve/nullify his marriage to Catherine of Aragon who had not been able to give him a male heir. The Pope would not grant him a dispensation to dissolve the marriage. Henry then took advantage of the brewing Tudor nationalist belief that authority of the English Church properly belonged to the English monarchy and caused a split from the Catholic Church and the authority of the Pope. The divorce was granted by the Church of England and Henry married Anne Boleyn, who was later executed for treason. Henry went through several other marriages in the Anglican Church, both after divorce and the death of his successive wives, and was by law made the head of the Anglican Church in 1534.

The Church of the Province of Uganda has its roots in, or is affiliated to the Anglican Church. According to the Canons of COU, “The Church of Uganda” is understood to mean ‘Anglican Church,’ in communion with the See of Canterbury.” It is thus not surprising that controversy arose when Bishop Nicodemus Okille stated that, “The position of the Church of Uganda is clear. Divorcees are not supposed to be wed by any cleric from the Church of Uganda.”

Focusing further on the position of the COU on divorce and remarriage, there are contradictions in the Canons as to whether divorce is acceptable by the Church, and whether one can remarry in Church after a secular divorce. It is important to note that the Canons of the COU have a mandatory effect and are part of the Ecclesiastical law of the Province. They were adopted by the Provincial Assembly Standing Committee in December 1996 for the governance of the Church. There appear to have been no amendments since then; if there are any they have not been documented or published.

First of all, COU Canon 2.31.8 provides that persons who have been married in church, or by civil process or according to customary law, whose marriages have been dissolved by secular authority, shall not be married by any priest of the COU for as long as their partner in the previous marriage is still living. It is further provided in COU Canon 2.33.1 that because marriage is supposed to be for the duration of the lives of the spouses, divorce is “viewed with disapproval and regret.” Anyone that challenged the marriage between Hon Alaso and Mr. Ebaju based their arguments exclusively on these two Canons and scripture in the Old Testament of the Bible.

The provisions of COU Canon 2.31.8 are rarely applied to customary marriages. It is one of the trying problems of persons married under customary law that their marriages are rarely (if ever) recognised by the COU; COU priests have earned themselves a negative reputation for solemnising marriages between spouses previously married under customary law and others, without any regard to the validity of the customary marriage in issue.

It does not matter to them that the Customary Marriage (Registration) Act specifically provides that a civil/church marriage, after a prior customary marriage to any other person, other than the spouse under customary law (if the customary marriage has not yet converted to a polygamous one) is illegal and void.

Church of Uganda and divorce Surprisingly, contrary to the provisions of COU Canons 2.31.8 and 2.33.8 (against remarriage and divorce, respectively), COU Canon 2.33 goes on to provide very elaborate procedures for “Divorce and Marriage of Divorced Persons.” It provides that applications to remarry according to the rites of COU may be made where the previous marriage has been dissolved by a civil court, or according to the law applicable.

Such applications are made in writing and are received by a parish priest who has an obligation to make investigations regarding the marriage and divorce. The parish priest then forwards the application with his/her report to the Diocesan Bishop who is then supposed to convene an Ecclesiastical Court to consider the application.

COU Canon 2.34 provides for permission to remarry according to the rites of the COU. Note that provision is specifically made in the same Canon for consideration of applications of divorced persons who wish to remarry, but whose previous spouses are still living. On considering such applications, the matters that are investigated include whether there is reasonable hope that the intending spouses will after the marriage continue in that relationship during their joint lives.

According to COU Canon 2.23.1, permission to remarry may be granted by the Diocesan Bishop (such as Bishop Obaikol) if he/she is satisfied that the previous marriage has been validly dissolved according to the law properly applicable thereto.

The applicant must also prove that he/she tried in good faith before dissolution of the marriage to reconcile with the spouse, and that adequate provision has been made for a former spouse of the divorced applicant as well as for the minor/dependent children of the previous marriage. Where such children are to live with the divorced person intending to remarry, the Bishop must be satisfied that there is reasonable prospect that the family relationship will be satisfactory.

Where permission for one to remarry is denied, he/she has a right to appeal to “the Commission” for reconsideration of the application. According to COU Canon 2.34.3, the Commission will not grant permission to remarry to an applicant who has entered into two or more marriages that have been dissolved, unless special circumstances justifying permission are proved. The circumstances are not specified. One may conclude that this is the only situation where COU may deny divorced persons the opportunity to remarry according to its rites.

The varied canons about divorce
It is my view that it is highly unlikely that after making such elaborated provisions to cater for divorced persons who wish to remarry in the church the intentions of the COU were to unequivocally prevent remarriage of divorced persons whose previous spouses are still alive. The likely interpretation of these provisions would be that the subsequent provisions (regarding applications to remarry in the COU) provide exceptions to the provision that prohibits priests of the COU from solemnising marriages of divorced persons.

The combined effect of the various Canons of COU about divorce and remarriage in church could therefore be summarised to read: “No person who is already married whether by the rites of the COU, under customary law or by civil process but whose marriage has been dissolved by civil authority shall be married by any priest of the COU so long as the husband or wife to whom the person was previously married is still alive, unless she/he is granted express permission by the COU.”

Given the above provisions of the Canons of COU, it would appear that as the Bishop of Soroti Diocese, Obaikol was clothed with the authority to make the decision to remarry Mr. Ebaju (divorcee) and Alaso under the rites of the COU. This can only be challenged if it is proved that the Bishop did not go through the procedures required by Canon 2.23.1 before granting Mr. Ebaju permission to remarry. My learned friend Kenneth Kakuru was thus hasty when he prematurely concluded that the marriage between Alice Alaso and Johnson Ebaju is illegal! There is no doubt that the laws of Uganda allow divorced persons to remarry, even when their previous spouses are still alive, either in church or under civil process. Therefore, the contested marriage cannot be declared illegal without a legal inquiry.

The marriage could also be challenged if according to the rules of PAG marriages celebrated in that church cannot be terminated by Magistrates Courts, as was the case in the Ebaju/Ikiria divorce. However, that would be illogical because it would then mean that marriages solemnised by PAG are solemnised under some other law, not the Marriage Act. In that case, we would question whether PAG had the legal mandate to solemnise marriages because all places of worship that solemnise marriages are licensed by the Minister of Justice under section 5 of the Marriage Act. All Christian/civil marriages solemnised outside licensed places of worship (registries of marriage) are illegal and void, except where a special license has been issued by the Minister of Justice.

Having established that the Canons of COU do not completely outlaw remarriage after divorce, it is important to point out that COU Canon 2.34.3 (c) provides that where permission for a divorced person to remarry has been granted either by the Diocesan Bishop or the Commission, an incumbent parish priest may decline “for reasons of conscience” to solemnise such a marriage. This provision is confirmed by s.40 of the Divorce Act which provides that no clergyman in Holy Orders of the COU shall be compelled to solemnise the marriage of any person whose former marriage has been dissolved on grounds of his/her adultery.

Clergymen are also by the same section protected from any suits, penalties or censure for either solemnising, or refusing to solemnise such marriages Contrary to threats that have been issued to punish/discipline Bishop Obaikol for his actions, the Bishop is protected by the Laws of Uganda. Any action taken against him either by the Church or any other party might not be successful because it would be both against the Canons of COU and the Laws of Uganda.

Clarify Church of Uganda Laws
With the increasing rate of divorce in Uganda, situations similar to the one discussed here will soon become common. It is therefore important that the COU reviews its Canons and amends them to clarify its position on divorce and remarriage to avoid arguments over validity of marriages solemnised after divorce.

It was reported that one of the reasons given by Bishop Obaikol for solemnising the contested marriage was that the COU does not recognise marriages solemnised in Pentecostal churches. This presupposes that COU or some of its priests are not aware that there are some Pentecostal churches that are registered to solemnise marriages.

It has therefore become urgent for Parliament to enact a law to provide for registration of Pentecostal churches as Churches (not NGOs). This would weed out Christian NGOs that do not qualify to be called churches, and enable registration of those that qualify to be described as churches to be registered to solemnise marriages under the Marriage Act.

This would put a stop to doubtful/illegal marriages and doubtful divorces.

Alaso wedding exposes gaps in Church laws

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