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By:
HARRISON MAINA | |||||||||||||||||||||||||||
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Jul,12-2016 18:16:07
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(AJABU AFRICAN NEWS, Saturday, July 9, 2016), BOSTON__While moving to dismiss the case against Rev. Fredrick Thanji of the Kenyan All Saint Community Church in Quincy, near Boston, Norfolk Superior Court Judge Jeffery Locke said Tuesday that the court lacked subject matter jurisdiction to rule on the case due to the limitations of separation of Church and State as set in the First Amendment of the US Constitution as well as Massachusetts law.
In so doing, the judge effectively removed the court from the hot potato dispute, and back into the arms of the Anglican Church of Kenya (ACK), where different Bishops have competing claims regarding who holds the jurisdictional authority over the All Saints Community Church Quincy and other Kenyan Community churches in North America and Canada wishing to be affiliated with the over 4 million member motherland Anglican Communion. In the 20 page ruling obtained by Ajabu Media, the Superior Court Judge said that, although evidence showed disputed 2012 Church Constitution was not voted for or adopted by the All Saints Congregants, he has found enough evidence that the initial 2002 Constitution was valid as a church governing document. Therefore, by itself, the 2002 All Saints Church Constitution might give the court enough reason to remove itself from the dispute to avoid intruding in the internal matters governing the affairs of the church against the Principles of the First Amendment, he indicated.
Judge Locke also said that there was ample evidence that All Saint church Quincy had some form of affiliation with the Anglican Church of Kenya though the Thika Diocese, even through that relationship was questionable, as there existed competing claims between the Archbishop of the Anglican Church of Kenya, Eliud Wabukala, and his junior, Bishop Julius Wanyoike who heads the Thika Diocese. The Judge wrote that documents and testimony provided proved that Bishop Wanyoike had signed missions partnership deed with Rev. Frederick Thanji without the knowledge or approval of the Archbishop Wabukala who is represented in the USA by Bishop William Murdock of the Anglican Church of North America (ACNA). While testifying before the court, the judge added, Bishop Murdoch had said that the ACNA had revoked the license to Rev. Thanji to operate under the Anglican Church of Kenya in 2011 after he refused to follow and comply with ACNA Constitution. But even after his license was cancelled, evidence available indicated that Rev. Thanji and Bishop Wanyoike signed a partnership agreement, and that Rev. Thanji was installed as a Canon with the Anglican Church of Kenya in 2014. "Notwithstanding the ecclesiastical directive to join the ACNA, Reverend Thanji and at least one other Kenyan church) established an affiliation with the Thika Diocese of the Anglican Church of Kenya. On May 18, 2014, Reverend Thanji was installed as a Diocesan Canon of the Thika Diocese by Bishop Julius Wanyoike," Judge Lock said. The other Kenyan church that the judge refered to is the St. James Community church in Attlebory led by Rev. Canon Paul Mwaniki.
The judge further said that Bishop Wanyoike and Rev. Thanji signed an affiliation agreement entitled "Companions and Partners in Mission" that was executed in May 2014 when Bishop Wanyoike was at the All Saint Community Church where the bishop also consecrated a new Sunday school building. "While the ACNA and the New England Diocese assert that they have provincial authority over all Anglican communities in North America, their claim is undermined by the actions of the Thika Diocese and it's bishop, Reverend Wanyoike." " Whether Bishop Wanyoike overstepped his authority in establishing an affiliation with All Saints, as is suggested by Archbishop Wabukala's May 21, 2016 letter, can best, (and only) be determined by the Anglican Church itself. A civil court cannot decide the dispute without intruding into the internal structure and governance of the Anglican Church in derogation of established First Amendment Principles," he continued in the epic ruling. Archbishop Wabukala retired two weeks ago, handing over the leadership of the ACK Communion to the newly elected Archbishop Jackson Ole Sapit. Reliable sources disclosed to Ajabu Media that the new Archbishop has said that the mess between the Anglican Church of Kenya, the Thika Diocese and the Anglican Church of North America that has crystallized the other mess at the All Saints Quincy Church will be his first order of business to sort out when he settles down in his new capacity within the next two weeks or so. In addition to the subject matter jurisdiction handicap, the judge ruled that the case should also be dismissed based on the defendant's second motion to dismiss on the grounds of "misnomer of parties." The judge added that none of the congregants who brought the suit showed evidence of being an official, director or agent of the All Saints Church Incorporated, therefore they had no legal had authority to institute a lawsuit on behalf of the religious organization incorporated in Massachusetts. The ruling was in line with what the judge had warned during his opening remarks at the start of the 3 day hearings conducted at the Norfolk Superior Court in Dedham, near Boston over a period of three days last month.
Delivering his opening remarks, the judge had indicated that his first and foremost priority would be to "establish whether there was a controlling document in the church" that laid out procedure of governance of church affairs. If he found enough evidence for that, whether in the form of a Constitution, By-Laws or other mechanisms, then he would dismiss suit and send back the congregants to their church find their own solutions in "their own ways". When the parties returned to court for final arguments, Judge Locke admonished both sides and said it as a big shame for people otherwise "expected to show good faith efforts" to forgive each other and compromise to fail to do so. Therefore when the ruling came out early Tuesday morning, it was not totally unexpected by camps on both sides--who were well aware of all the stark possibilities--having failed to compromise on three occasions provided by the court. However, in a surprising move, the judge threw a lifeline to the 59 congregants who filed a petition against their pastor claiming they have contributed lots of their financial and time resources towards building the All Saints Church, paying off the mortgage in "few short years", and are therefore against Rev. Thanji's efforts to kick them out of the church by refusing to adhere to the terms and conditions they wanted reflected in the revised 2012 Constitution that is under dispute.
The judge said that the dispute came to a boil at a particular church service in September 2015, and rapidly degenerated to find its way into the court in January this year. "In response to what he may have perceived as a challenge to his authority, Thanji rashly declared that as a founder, president, and pastor of All Saints, he was the "boss", and did not need permission to act for the Church,"' said the Judge in the ruling. He added that following the contentions comments, a sizeable number of the membership boycotted Sunday services in early 2015, and demanded a special general meeting be held, which the Church Council agreed to schedule for October 31, 2015. However, at the particular Special General meeting, the judge continued, members raised a number of issues, including the desire to have a new valid church Constitution, dissolution of the existing Church Council, and election of new council members by the congregation. They also demanded a date on which Rev. Thanji would retire following his previous announcement that he would like to retire. The members sought to put together a selection process fore the appointment of a new pastor, and confirmation that ownership of the church real estate at 33 Grafton Street in Quincy was vested in the membership and not owned by the pastor and his family. "The issues were subsequently memorialized in a petition that was signed by 59 members of the congregation (represented to be about 75% of the total membership). However, the petition was rejected by Thanji and the Church Council, resulting in with five of members of the Church Council to quit in protest." The pastor, the judge continued, then swiftly moved to fill the now vacant seats with his own appointed officials, resulting in an instant suit by the enraged petitioners. Recognizing the difficult situation the suing group faced, Judge Locke said that since Rev. Thanji had indicated in his motion to dismiss that they had failed to exhaust the dispute resolution procedure as laid out in the disputed 2012 Constitution, then the pastor should provide them the opportunity to seek the same remedies they have been aspiring for over a long time. The hawkeyed judge spotted article XV in the disputed Constitution that provides for grievances to be arbitrated, in the first instance, by the rector or the Church Council, and if not resolved, they should be decided by the church Chancellor.
If that doesn't work, the judge continued, "Article XVI provides for appellate procedures a panel of clergy, Anglican lay persons who are not members of All Saints, and the Chancellor. Although this Court is not persuaded that the 2012 Constitution was validly adopted by the church membership, the defendant (Rev. Thanji) may well be estopped from denying plaintiff the right to pursue their grievance according to the disputed resolution mechanism he contends is controlling here," noted the judge, effectively limiting Rev. Thanji's ability to kick out the dissenting members, and kicking the can down the road and back into the All Saints Church Quincy and the Anglican church of Kenya. He clarified that in acknowledging the church autonomy in resolving such disputes, civil courts apply the said respect to both congregational as well as hierarchical churches. He added that even in a situation where a church claims to be independent or congregational in nature, civil courts' jurisdiction can only be applied to the extent of identifying the authority authorized to act by the church, and "enforcing the resolution of the conflict by that authority", hence the All Saints Church and the Anglican Church of Kenya must step in to end the ugly dispute that has embarrassed religious leaders and worshippers in the Kenyan Diaspora community in USA and back home. Reacting to the surprising ruling members who sued the pastor hailed the outcome as not so bad for them, considering that they were poorly misinformed from the get go about the limitations on civil courts in adjudicating church disputes as provided by the First Amendment and Massachusetts law. They thanked the judge for stopping their pastor form his efforts to kick them out, which he had already started to accelerate this past Sunday by banning the assistant pastor, Dorcas Abreletch from appearing at the church any more. "We are not going anywhere. The judge has confirmed all we have been saying all along. All Saints Church is our church, we have built it and we have a right to be there. We understand that the court's ability to decide on this matter was complicated by the First Amendment," said John Brett Giathi, one of the leaders of the suing group during a telephone interview with Ajabu Media. "This was a very simple issue. I tried to tell the pastor to agree to meet with the people and fix the problems in the new Constitution that they wanted but he refused. This thing should, have never gone to court. The court is bad and can even go under the bed to find what is hidden there, revealing things that to people that they should have never known," said Rev. Dorcas while reiterating that the neither she nor the suing members should leave the church at all.
"Even the sign outside the church says "All are Welcome". Why should I be stopped from attending my Church?"' She posed. During the service last Sunday where Rev. Dorcas was banned from attending the church forthwith, over 30 members of the suing group had appeared in the church in orange and yellow t-shirts branded with messages indicating that they would not leave the church under any circumstances. United in purpose and solidarity, the members sat on one isle in the sanctuary, while about 12 members supporting the pastor sat on the other. Efforts to get comments from the pastor or congregants supporting him have been met with utter silence and in most cases, with open hostility. The dispute involves the control of church property worth an estimated USD1.5million (KES151,791,750 million), including the main church building that was previously a Synagogue that the Kenyans converted into a place of worship after purchase, a newly construccted Children's Learning Center as well as unspecified amount of cash in the bank. The All Saints Quincy church saga is being followed closely by parishioners in other Kenyans community churches, some of whom have lost hundreds of thousands of funds in real estate and in cash after unresolved disputes led to collapse of the churches, with proceeds from sale of such real estate going unaccounted for, usually ending with clergymen,their families and die-hard close associates. Many Kenyans in the area and beyond view the All Saints dispute as a text book profile of what not to do, or what details to pay attention to in the process of establishing, developing or upgrading church constitutions, registered directors of the incorporated religious organizations, and even the composition of the Church Council members--before allocating hard earned cash to frequent church building and development fundraisers. As it stands right now, the All Saints saga has just entered round two, with both camps digging-in thei heels and no end in sight.
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Source:
AJABU AFRICAN NEWS
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