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Reassessing Canonical Attitudes Towards African Marriage Practices Based on a Study of the African Synod Agbonkhianmeghe E

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Reassessing Canonical Attitudes Towards African Marriage Practices Based on a Study of the African Synod Agbonkhianmeghe E Marquette University e-Publications@Marquette Theology Faculty Research and Publications Theology, Department of 1-1-1996 Reassessing Canonical Attitudes Towards African Marriage Practices Based on a Study of the African Synod Agbonkhianmeghe E. Orobator Marquette University, [email protected] Published version. Hekima Review, No. 14 (January 1996): 9-18. Permalink. © 1996 Hekima University College. Used with permission. Agbonkhianmeghe E. Orobator was affiliated with Hekima College at the time of publication. eassessing Canonical Attitudes owards African Marriage Practices: ljaSI~a on a Study of the African Synod OROBATOR, S.J. African theologians are virtually unanimous in pointing out that the ex­ tJeJ'iel ~lce and institution ofmarriage constitute a speCial test casefor the proc­ of inculturation in the Church in Africa. This artie/I! studies the problem it was dealt with hy the African Synod, tbat is, Fom the perspective qf the qf Canon Law in relation to extremely important is.<;u.es such as grounds nulli~y, consummation qf marriage and marital cOllsent. In tbe author's 11ft/un tbe ,~ynod opens the wayforfurtber discussion and examination qf issues involved ratber tban prOVide practical solutions. Tbe pastoral proh­ qf compatihili~y qf canonical attitudes with AFican marriage practices . remains an open question. IntrolCluctllon It has been argued that the African Church needs a "Canon Law" to cater for its specific needs, especially in this period of preCipitated transformation of the socio­ cultural and religiOUS contexts in which efforts of JLUJluration currently take place. The peculiarities of some elements of the cultural life which Christianity seeks to dialogue with in a sustainable pnJC<=ss of incu lturation are striking as well as challenging. One such element the institution of marriage. It is no exaggeration to say that this institution . pivotal in the socioeconomic, religious, and cultural organisation of the of Africans. The Special Assemh~y qf tbe Synod of Bisbopsfor Afnca, held in Rome in 1994 to layout a plan for the evangelising mission of the African Chufcl1 on eve of the third millennium, was aware of the importance of addre'ssing urgency and dispatch'" issues concerning African marriage pn~ctices nf("''''' nrion of Bishop Michael Cleary, C.S.Sp. in Bulletin ofthe Ho~y See P,'ess Office, n.\1.; Cf. Paul II , Ecclesiu in Africa Post-Synodal Apostolic Exhortation (Nairobi: Paulines Publi­ cations Africa, 1W'5), n.')O. Heldma Rel!iew, No. 14, January 1996 ReassessinM Canonical Attitudes Towards Afhcan MtlITiage Practices from the perspective of the matrimonial jurisprudence of the Church. While the Synod did not go as far as proposing the promulgation of an African Canon Law of Marriage, the Synodal Fathers did call for "a radical reassessment of our pastoral and canonical attitude towards some African marriage practices like the role of the extended family in marriage consent, barrenness as possible grounds for nullity, marriage by stages and the prac­ tice of Levirate marriage or inheritance of widows."2 In addition, Cardinal Hyacinth Thiandoum did assert that, in the context of inculturation, an Afri­ can rite is a right and not a concession:' One could argue that an African rite includes, among other things, an African Code of Canon Law. It is my aim in this essay to examine briel1y through a close study of available synodal documents those areas where canonical attitudes need to be reassessed. It mllst be stressed that to reassess canonical attitudes as the Synodal Fathers did instead of calling for the promulgation of an African Canon Law of Marriage is something short of my initial expectation. We must allow for the possibility that such an innovation may not as yet be necessaly. Within the framework of what was discussed at the Synod, I begin by outlining briet1y the problem which necessitates the above-mentioned reas­ sessment and what a possible harmonisation of the African marriage prac­ tices with canonical prescriptions would entail. In the second section, I deal with three specific areas (sterility, consummation and consent) where such reassessment and harmonisation are needed. It does not fall within the pur­ view of this essay to study the institution of marriage in Africa. Only those aspects will be mentioned which were of particular interest to the Synodal Fathers. 1. Undoubtedly, the problem is first and foremost a pasto­ The.Problem ral one. It is sllccinctly expressed in the Working Docu­ ment of the Synod: "There are a great number of Catho­ lics excluded from the sacraments, the source of unity and strength, by reason of their irregular marital situa- ! Relatio Post Disceptaliollelll (RPD) (Vatican: Libreria Editrice Vaticana, 1994), n.21; See al~o the interventi()n~ of Bishop Thart'i~se Tshibangll T~hishikll in Bulletin, n.12, and Archbishop Vincenzo Fagiolo in Bulletin, n.14 . .i Relatio Ante Disceptationenl (RAD) (Vatican: Libreria Editrice Vaticana, 1994), n.17. Hekima Review, No. 14, January 199(j 10 nuel OROBATOR. S./. .~i ~I\Jl1.'''i Upon a closer examination the canonical ramifications of this problem J~ I)e(:orne evident. Precisely. this exclusion of Catholics from the sacraments otpm~ from the fact that the above-mentioned irregularity concerns marital which are considered to be non-acceptable, that is, uncanonical, for relating to form of consent, ratification and consummation." Simply it concerns marriage contracted "in a form not recognised by the Church.,,6 As I shall argue later in this essay, these problems are deeply connected the cultural understanding of marriage by Africans in general -Christians non-Christians. I'lence, it is hardly surprising that practically all the inter- "" .Co_" and deliberations of the Synodal Fathers concerning marriage were in the context of inculturation even when there is a strong canonical ring And for this reason any solution proposed must be sensitive to the and cultural situation of African Christians. Although the Synodal Fathers approached the problem from the perspective of inculturation, there was a no­ ticeable shift of emphasis to the connected notion of harmonisation. As the Fathers affirm: "We need greater appreciation for our custom~lIy laws of marriage and efforts to harmonise them with Church law on marriage."7 One could that the thrusts of these two approaches, inculturation and harmonisa- , are different. In my opinion they are not. Rather than draw a strict line distinction between both, it is perhaps helpful to see harmonisation as one ..•.,.... ___ of the process of inculturating African marriage practices. Harmonisation concerns primarily the essential dialogue that must exist lv between Christian marriage, as detailed in and regulated by Canon Law, and v{ African marriage practices as experienced by African Christians.H Already, as ., I1Islmlilel/IIUII Lahoris (I.L.). (Vatican: Lilm:ria Editrice Vaticana, 1(93), n.oH. This prohlem I()und resounding echo in many of the interve ntions at the Synod. Sec, for ex:.lJnple. the interventions of Bishops John O'lliordan, C.S.Sp. in Bllllelili. n.20; Haphacl Mwana'a Nzeki Ntlingi in Bulletill, n.l .3; Archhishops Luc SangarL' in Bulletill, n.20; Paul Verdzekov in Bulle- 1f1l, n.34; Heporr or Discussion Group (Ang/iells III in Bul/elill. n.2'.1 . < See Rl'D. nn.o :Inti 2 1: E/encbus UlliclIS ProjJosiliolllll1l- (Vatican: Lihreria Etiitrice VatiGlI1a , 1<)<)4), 11 .33. (, E/encbus Fil/(tlis ProjJosiliollum (Va tican: Libreria Editrice Vatican:!, l(90). n.35. RAD. n.17: cf. IWD, n.o. Cf. Interve ntions or l\ishop Cle:lJY in Bllllelin. n.9: Archbishop Sanga1'C in Bulletill, n.20: Bishop Vie[()r Tonye Ibknt in Bul/elill. n.B. I-1anl1onisation aiso concerns the need to avoid ·'triple celehration of marri:lge hI' the saille couple --cus[()lll:Jry. civil :lIld Church marriage in the prl'SeIKl' of a priest.·' RPD. n.6; cf. Archbishop Sangarl', ibid and Ilbhop Bakot, ihid. HekilllCl Relliew, No. 14, January 1996 :1i. , ;j Reassessint.: Canonical Attitudes Towards African lv/alTiClMe Practices,i some of the Synodal Fathers point out, "a clear dichotomy" exists betweerll 'I African cultural understanding and practice of marriage and canonical regula ~; tions.'! In this context, then, the aim of harmonisation is to produce an "Afri~: can Christian marriage,"ifI without neglecting what the Synodal Fathers rec-; ognise as the two principles of inculturation: compatibility with the tenets of the gospel and communion with the universal Church. II At this point it is reasonable to ask: What are those areas where hanno­ nisation is needed? I will mention three, which, I believe, are illustrative of a' broader spectrum of reassessment of canonical attitudes towards African marriage practices. My treatment of these areas presupposes -as does that of the Synodal Fathersl2- the essential elements and properties of marriage, namely, mutual exchange of consent (can. 1057; cf. can. 1095 ft), unity of both spouses and indissoluhiliZy of the marital bond (can. 1056). 2.1. Groundslor Nullity: Sterility: The canonical legislation on grounds for nullity, understood as a declaration of the non-existence of a supposed sacramental marital bond, clearly excludes sterility as a ground for invalidat­ ing marriage (can. 1084, n.3), being inconsequential to the sexual act needed for the consummation of the marital consent (can. 1061, nn.1 and 2; cf. can. 1141). This question constitutes the most problematic area in the inculturation of African marriage practices, precisely because
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