The family is the basic unit of the state. As such, it is often that we see the hand of the state in families right from formation to dissolution. For example, the state requires that a family must be formed by a man and a woman. The state further requires that the man and the woman must be adults who have given their personal consent to form such a family. The state even requires that upon marriage of the man and woman, the marriage must be consummated. The state has prescribed what constitutes consummation and has set a time limit within which the consummation must happen.
For the bearing of children, the state provides health care for expectant mothers and the rate of infant and maternal mortality is a national issue.
The state also guarantees free basic education to children born to all families within the state’s boundaries.
Rights such as equality accrue to all persons. Even at the point of marriage, parties have equal rights on formation, during and upon dissolution of the marriage.
The Constitutional Court in Uganda has a petition before it, brought by one Michael Aboneka against Watoto Church. The petitioner wants the court to determine the constitutionality of the requirements for marriage as imposed by the church on congregants.
Below are some of the things that the church requires for solemnization of marriage:
- Letter of consent from the parents of the bride to be
- Pastor’s endorsement of fitness for marriage
- Evidence of HIV status from one of the identified hospitals and a counselling report from the respective hospital
The story behind this petition made national news at the end of last week. A friend who shared this news on Facebook remarked, “this is what happens when you miss your discipleship classes”. And indeed, he is right. From a church member’s point of view, the requirements from the church make sense.
The petitioner argues that the requirements above are an imposition by the church and have no basis in law.
The requirement that he should present a letter of consent from the parents of the bride to be, the petitioner argues, is discriminatory and undermines the interest, welfare, dignity and status of women which is contrary to the Constitution of Uganda. And indeed, one wonders why if any such consent is required, why it is not required from the parents of the groom to be.
The petitioner also argues that the said letter from the parents of the bride to be undermines the legal requirement that parties to a marriage must give their consent to such a marriage. What one wonders is whether the church requires proof of consent of the parties. If not, is a third party’s consent more needed than a party’s consent?
He further argues that the requirement of an HIV status report is a violation of the right to privacy. But shouldn’t the church be bothered about the HIV scourge? But how can it be bothered without violating the rights of citizens?
It is among the petitioner’s humble prayers that:
- A temporary injunction stopping the church from conducting any weddings using those requirements
- The court annuls all marriages conducted using those requirements
- A declaration that the said requirements are irregular, unfounded in law and therefore unconstitutional.
Jurisprudential position of the Aboneka Case
In the early centuries, the Pope was a king maker, and therefore the state maker. He could give direction to kings and they owed him allegiance. But the concept of the church and the state has long been rejected by legal theorists and philosophers. The state, it is now trite law, must be separate from the church. The church is subject to the state’s control and therefore subordinate.
This debate is a rather sensitive one because religion is powerful, just like the state.
Religion often compels to people to do things even when they are not founded in law. The law compels people to do things for public order, and management. Even when it is within one’s right not to do something, the state may compel such an individual to that thing if it is for his good, or if it is in public interest. This the god father role played by the state, on all persons, institutions and entities within its boundaries.
For example, all persons have a right to liberty, but such liberty may be curtailed if it in the interest of the public, such as preventing the spread of a contagious disease. The state uses the force of law to coerce people into compliance. The force of law comes with a threat of punishment for non-compliance
The church is founded on religion and people are compelled to abide even when they do not wish to be bound by the church’s rules in fear a higher power, eternal damnation and hell fire. By faith, people easily oblige to the rules of the church without question. The church also plays a god father role on its members.
The power of the church is unlike that of the state whose power may be questioned and subjected to a system of check and balances. The church does not have such a system. Its rules are law and may not be questioned.
So, which god father role is superior?
It is that of the state. The Aboneka Case simply wants the court to reassert the power of the state on the church.
This article was written by our Law Review Columnist, Samali Kukundakwe, for our weekly law newsletter, The Deuteronomy. To contact Samali, write to her on email@example.com. To receive The Deuteronomy in real time, click HERE.