Non-Justiciability of Religious Disputes: A Ugandan Case Note

In a guest post, Mark Hill looks at an interesting judgment from Uganda on the limits of the secular courts’ jurisdiction over the internal affairs of Churches.

Archbishop of Uganda v Joyce and others HC-17-CV-CS-0034-2023, a first-instance decision of the High Court of Uganda delivered at Luwero on 25 October 2023 in which the Hon. Justice Dr Flavian Zeija delivered a short but significant ruling, is likely to be of interest to scholars of law and religion and to readers of this blog in particular.

The House of Bishops of the Anglican Church of Uganda met on 3 April 2023 and elected the Reverend Canon Godfrey Kasana as the fourth bishop of the Diocese of Luwero (sometimes spelt Luweero) and resolved to have the consecration and enthronement on Sunday 16 July 2023 at St Mark’s Cathedral, Luwero.

On 8 May 2023, prior to the scheduled consecration, a petition to nullify the election was submitted to The Most Reverend Stephen Samuel Kaziimba Mugalu, Archbishop of Uganda. The petition alleged that Canon Kasansa was unworthy of episcopal office, being a serial adulterer, and having fathered at least one child outside marriage. The House of Bishops considered the petition on 28 June 2023 and nullified the election of Canon Kasana, inviting fresh nominations for the vacant see.

Various supporters of Canon Kasana brought a civil suit against the Archbishop in the High Court of Uganda, seeking a declaration that the nullification was null and void, and effectively inviting the court to order specific performance of the consecration. The Archbishop contested the validity of the proceedings and made an application to have them struck out. The matter was determined on affidavits served on behalf of the parties, which also raised a number of procedural issues.

Justice Zeija found the proceedings had been brought against the wrong respondent. The decision to nullify the election, as the plaintiffs well knew, had been taken by the House of Bishops. Therefore, he concluded, “The case was … brought against a wrong party and it stands no chance of success against [the Archbishop]”.

More significantly, Justice Zeija found that the civil court lacked jurisdiction to set aside the nullification of the election as this would amount to an interference with a religious question and a violation of the rules, regulations and traditions of the Anglican Church of Uganda.

He referred to Rev Charles Odeke Akunya v Registered Trustees of Church of Uganda (HCCS No 305 of 2020) and Rev Canon Cyrus Adiga Nakari v Rt Rev Sabino Ocan Odoki (HCSS No 2 of 2017) and cited Justice Mubiru:

“… the courts may refrain from adjudicating purely religious matters, save where the right to property or to an office depends on the questions as to religious faith, belief, doctrine or creed as the courts may be handicapped to enter into the hazardous atmosphere of religion.”

He remarked that Justice Mubiru “declined to enter the murky waters of religious doctrines”.

Justice Zeija identified a general principle that religious controversies are not the proper subject of civil court enquiry, noting Serbian E Orthodox Diocese v Milivojevich 426 US 696, 713 (1976). He summarised the position as follows:

“It is therefore taken as a constitutional gospel in all commonwealth jurisdictions and also the United States that courts have no business handling religious questions. In other words, courts should not resolve cases that turn on questions of religious doctrine and practice.”

Making reference to Perry Dane, “Omalous” Autonomy (2004) BYU Law Review 1715, 1733-34, he went further and said:

“Courts will dismiss claims that hinge on religious questions even if no other religious institution is waiting in the wings to resolve the religious dispute.”

Justice Zeija pointed to Article 29 of the Constitution of the Republic of Uganda, which provides for freedom of worship, commenting: “Once you subscribe to a certain faith, you must go by its tenets”. He noted that the Anglican Church of Uganda has certain canons it follows. Without a doubt, he states, the canons provide for how a bishop is appointed and for how disputes relating to the election of bishops are resolved:

“Courts cannot appoint a bishop for the Church. That is a spiritual matter for which courts cannot claim to be competent. The Anglican Church in Uganda has all the necessary bodies to resolve such disputes.”

Accordingly, the proceedings were dismissed as lacking merit and not tenable at law. Each party was ordered to pay their own costs “to promote reconciliation in the church”.

The underlying principle of non-justiciability of religious disputes was reinforced recently in the United Kingdom Supreme Court in Shergill & Ors v Khaira & Ors [2014] UKSC 33.

Although the judgment does not descend into details of the specific canons of the Anglican Church of Uganda, the clear inference, unsurprisingly, is that they are consistent with the Principles of Canon Law Common to the Churches of the Anglican Communion (Second edition, 2022), which include the following:

Principle 36: Admission to the office of diocesan bishop

  1. Election to the office of diocesan bishop is carried out by an electoral college or other such body, which may consist of representatives of the episcopate, clergy and laity.
  2. An episcopal election may be challenged on substantive and procedural grounds by such persons, in such manner and to such extent as is provided by law.
  3. The authority to confirm or reject the election of a bishop vests in an archbishop, episcopal assembly or other competent lawful authority.


I am grateful to my friend and colleague Dr Faith Kabata of Kenyatta University, Nairobi, for supplying me with a copy of the judgment.

Mark Hill KC

Professor Hill is Global Visiting Professor and Distinguished Fellow at the University of Notre Dame London Law Program and an Extraordinary Professor at Pretoria University, South Africa. He is a Board Member of the African Consortium of Law and Religion Studies.

[Cite this article as: Mark Hill, “Non-Justiciability of Religious Disputes: A Ugandan Case Note” in Law & Religion UK, 21 November 2023,]

3 thoughts on “Non-Justiciability of Religious Disputes: A Ugandan Case Note

  1. This blogpost reminds of a similar finding of non-justiciablity on an ecclesiastical dispute in the Samoan Congregational Church by the Samoan High Court in 2016, although it was subsequently over-ruled in the Appeals Court.

    The ruling of the then Chief Justice Sapolu in the initial High Court judgement was particularly interesting, not least given the later political context of Samoan lawmakers rewriting the national constitution in 2017 and explicitly declaring Samoa as a Christian state.

    In the court judgement, CJ Sapulo ruled that state could not intervene in internal church affairs, despite those common law jurisdictions Samoa often draws on in its judicial decision-making – e.g. UK and Australia – frequently claiming ‘natural justice’ grounds to do so. Fascinatingly, Sapulo argued precisely to this point because ‘Samoa is a country founded on Christian principles and God’. Respecting the separation of church and state was held as a fundamental tenet of Christianity itself. This viewpoint, of course, recalls the fact that it was largely from Christian piety that John Locke championed separationist principles in his Letter on Toleration.

    Indeed, it may be that it is those dominantly Christian societies across the Global South – rather than those European ‘secularised’ ones – where ideals of separation (in law at least, if not in politics) may remain more rigourously guarded.

    • Addendum – Just to correct/clarify some inaccuracies in above [the above was a quick late night reply without a thorough rechecking of my sources – my apologies!]. The Samoan push-back against the a softer UK separation specifically concerned whether a church’s relation with its clergy were entirely spiritual, or also contractual, and therefore establishing socio-economic rights that could be adjudicated by civil courts. I admit that succession of leadership may well be a different matter altogether…

      But on this specific issue of contractual (and spiritual) relations, rather than seeing Shergill as a doubling-down on ministerial exception, CJ Sapulu viewed Shergill as a loosening of it…

      Some juicy quotes from the case above – Reupena v Senara [2016] WSSC 140 (3 August 2016) – below…

      “Shergill v Khaira departs from the traditional common law approach in one key aspect, that is, it views the constitution or rules of an incorporated religious institution as contractual. This is inconsistent with the common law cases like Mabon v Conference of the Methodist Church of New Zealand Inc [1998] 3 NZLR 513 which recognises
      that not all agreements are intended to give rise to legal relations. In similar vein, in Law of Contract in Zealand (2012) 4th ed by Burrows, Finn and Todd, the learned authors state at para 5.1 (Lexis Nexis NZ Ltd):
      “The law…does not proclaim the existence of a contract merely because of the presence of mutual promises. Agreements are made every day in domestic and social life, where the parties do not intend to invoke the assistance of the Courts should the agreement not be honoured. To offer a friend a meal is not to invite litigation”.
      54. It would appear that in terms of Shergill v Khaira (2014) UKSC 33, there is a presumption that the constitution or rules of an unincorporated religious institution is contractual whereas the position in Mabon v Conference of the Methodist Church in New Zealand Inc [1998] 3 NZLR 513 is that an intention to be contractually binding
      is not to be presumed but must be proved on the facts.

      55. The important question that has arisen is whether Samoan law should follow the traditional common law approach or should follow the new approach of the United Kingdom Supreme Court in Shergill v Khaira [2014] UKSC 33. The traditional common law approach as it appears from the New Zealand authorities of Maban v Conference of the Methodist Church of New Zealand [1998] 3 NZLR 513 and Marshall v National Spiritual Assembly of the Baha’i’s of New Zealand Inc [2003] 2 NZLR 205 is that ecclesiastical disputes or disputes which involve purely spiritual or religious issues are non-justiciable and the Courts have been reluctant to intervene in such issues unless civil, economic, or proprietary rights have been infringed…

      56. After careful consideration, I have decided to follow the traditional common law approach adopted by the New Zealand, Australian, and Canadian Courts and not the decision of the United Kingdom Supreme Court in Shergill v Khaira [2014] UKSC 33 for these reasons. In the first place the situation in the United Kingdom is quite different from that in Samoa. It appears from the English cases that a minister of religion is called by the Church to serve in a parish and his remuneration or stipend is paid for by the Church. With Samoa, a minister of a village church is chosen and appointed by the congregation of that village. His remuneration is paid for by the congregation from voluntary donations by its members. There is no fixed remuneration, a minister’s remuneration depends on what the members of the congregation can afford and are willing to donate. The congregation can also terminate the service of the minister if they want to at any time without having to consult the Church or its governing body. It is unheard of that a minister can sue a village in Court if his service as minister is terminated for whatever reason by the village congregation and many ministers have been terminated over the years. The church building where religious services are held is also built by the village congregation and belongs to them and not to the Church. The land on which the church building is built also belongs to the village and not the Church. The residence of the minister is also built by the village congregation on village land and belongs to them. The use of the residence by the minister is rent free. A minister also occupies a special position within a village and is accorded special treatment and the highest respect in accordance with Samoan customs and the Christian beliefs of the Samoan people. He is the spiritual father of the village. In such circumstances, there can be no contract between a minister and the Church. The relationship is one between the minister and the village congregation and it is not contractual.

      [The argument about Samoa’s Christian status went as such…]

      58. Secondly, the special position of the Church and of ministers of religion in Samoan society is reflected in the preamble of the Constitution which provides that Samoa is founded on God. And the Samoan people normally speak of Samoa as founded on God rather than on the Constitution of the Independent State of Samoa. The preamble of the Constitution also records that Samoa is founded on Christian principles and Samoan custom. Articles 11 and 12 of the Samoan Constitution also expressly record and preserve freedom of religion and religious instruction in a manner consistent with the preamble of the Constitution, and the place of Christian values at the centre of Samoan society.

      [He then finishes with this particular flourish!]

      59. All of the above would be consistent with the traditional common law approach of non-intervention in the internal affairs of a voluntary unincorporated religious institution. Perhaps, the United Kingdom with European influence has reached a stage in its development that would justify the approach taken by the United Kingdom Supreme Court in Shergill v Khaira [2014] UKSC 33. In my respectful view, the situation in Samoa, on the other hand, is very different. I therefore hold all of the plaintiff’s causes of action are non-justiciable and should be dismissed.

  2. Given the nature and basis of the decision – that (broadly) the church is none of the courts business – the costs order is interesting: each party to bear their own costs, “to promote reconciliation in the church”.

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