Church – State Relations in Uganda with Special Reference to Administration of Church- Founded Schools and Hospitals

Home , Donation of Pepin

TANGAZA COLLEGE

THE CATHOLIC UNIVERSITY OF EASTERN AFRICA

SCHOOL OF THEOLOGY

VINCENT MUTEBI, C.S.Sp (11100T)

CHURCH – STATE RELATIONS IN UGANDA WITH SPECIAL REFERENCE TO ADMINISTRATION OF CHURCH- FOUNDED SCHOOLS AND HOSPITALS

Supervisor

Rev. Dr. Robert Lezohupski, OFM Conv.

A Long Essay Submitted in Partial Fulfilment

Of the Requirements for Baccalaureate in Sacred Theology.

NAIROBI 2015 II

To Canon Law Club of Tangaza University College

And

The Family of Dr. Mubiru George William

III

STUDENT’S DECLARATION

I, the undersigned, declare that this long essay is my original work, achieved through my personal reading, scientific research and critical reflection. It is submitted in partial fulfilment of the requirements for Baccalaureate in Sacred

Theology. It has never been submitted to any other College for academic credit. All sources have been cited and acknowledged.

Signed:………………………………………………………………………

Name of the Student: MUTEBI VINCENT, C.S.Sp.

Date:…………………………………………………………………………

This long essay has been submitted for examination with my approval as the

College supervisor.

Signed:……………………………………………………………………….

Name of Supervisor: Rev. Dr. Robert Lezohupski, OFM Conv.

Date:…………………………………………………………………………..

ACKNOWLEDGEMENT

I hereby, wish to extent my sincere gratitude to everyone without whose support and guidance this work could not have been accomplished. First, I thank

God who has enabled us all to make this work a reality. Second, I thank all the

Tangaza family that has provided the necessary resources and an environment that is conducive for study and research.

A special vote of thanks goes to my moderators Fr. Robert Lezohupski and

Fr. Lennoxie Lusabe and other lecturers who gave me a good foundation in theological studies and a profound interest in Canon Law. I thank my fellow classmates especially those with whom we shared courses and Canon Law as our area of focus.

Finally I greatly appreciate my Spiritan Confreres especially Fr.

Bonaventure, W. Ssebyanzi and Fr. Festo Adrabo for the necessary information I got from their research and apostolate respectively.

I thank all those who have greatly assisted me in proof reading like Fr.

Gerard Nnamunga C.S.Sp, Fr. Paddy Roe, C.S.Sp, Sr. Nakato Noelina (D.M) and

Sr. Justine Naluggya (I.H.M.R.S). I appreciate all the corrections and suggestions that I have received and take responsibility for any mistakes that may still be found in this work. May God reward you abundantly.

CONTENTS

DEDICATION ...... Error! Bookmark not defined. STUDENT’S DECLARATION ...... III ACKNOWLEDGEMENT ...... IV ABBREVIATIONS ...... VIII GENERAL INTRODUCTION ...... 1 Motivation ...... 1 Problem statement ...... 2 Objectives ...... 5 Methodology ...... 6 Structure of the Essay ...... 6 CHAPTER I ...... 8 CHURCH - STATE RELATIONS AT THE UNIVERSAL LEVEL ...... 8 1.0 Introduction ...... 8 1.1 Historical Overview: Unity and Separation of Altar and Throne in Church-State relations ...... 9 1.1.1 Unity between Altar and Throne ...... 9 1.1.2 Separation between Altar and Throne ...... 11 1.2 Interdependence between Roman Civil law and Church law ...... 13 1.2.1 Church Law as a Legal System ...... 13 1.3 Spiritual and Temporal Powers of the Roman Pontiff ...... 16 1.3.1 The Powers of the Roman Pontiff in Ecclesiastical Law ...... 17 1.3.2 The Pope as Bishop of the Roman Church ...... 18 1.3.3 Supreme, Full, Immediate, Universal and Ordinary power ...... 19 1.3.4 The power of the Bishops ...... 23 1.3.5 The Donation of Pepin III and the Papal States ...... 24 1.3.6 Creation of the Vatican City State ...... 27

1.3.7 Administration of the Vatican City State ...... 28 1.4 Categories and Roles of Pontifical Legates ...... 29 1.4.2 Categories of Apostolic Legates ...... 30 1.4.3 Ecclesiastical Roles of Papal Legates ...... 32 1.4.4 Diplomatic Roles of Papal Legates ...... 32 1.5 Conclusion ...... 33 CHAPTER II ...... 35 BASIC PRINCIPLES IN CHURCH-STATE RELATIONS ...... 35 2.0 Introduction ...... 35 2.1 The Human Person in the Teaching of the Church ...... 35 2.2 The Concept of Person in Canon Law ...... 36 2.3 Principles of Church – State Relations ...... 38 2.3.1 The Principle of Human Dignity in the Spirit of Vatican II Council ...... 39 2.3.1.1 Sources of doctrine on Human Dignity ...... 41 2.3.1.2 Meaning of Religious Freedom ...... 42 2.3.1.3 Protection of Religious Freedom in Civil law ...... 44 2.3.2 The Principle of Separation ...... 46 2.3.3 The Principle of Cooperation ...... 49 2.3.4 The Principle of the Common Good ...... 52 2.4 Canonical analysis in the context of Divine, Ecclesial and Civil laws ...... 52 2.5 Conclusion ...... 56 CHAPTER III ...... 57 ADMINISTRATIVE PERSPECTIVE OF CHURCH-STATE RELATIONS IN UGANDA, IN CHURCH-FOUNDED INSTITUTIONS ...... 57 3.0 Introduction ...... 57 3.1. The Catholic Church in Church-State Relations in Uganda ...... 58 3.1.1 Juridical status of Churches in Uganda ...... 58 3.1.2 Contribution of the Church and other Faith-Based-Organisations...... 59 3.2 The Concept of Administration in Canon Law ...... 60 3.2.1 Administration of Ecclesiastical Temporal Goods ...... 61 3.2.2 Duties of Administrators ...... 62 3.3 The Catholic Church and Education in Uganda ...... 63 3.4 Catholic Identity in Church Founded Institutions ...... 66 3. 5 National Education Act and Implication for Stakeholders in Education ...... 70 3.5.1 National Education Act in Relation to Catholic Education in the 1983 Code ..... 71 3.5.2 Constitution of respective Boards and Committees of Administration...... 71

VII

3. 6 Administration of Hospitals as a Health care Apostolate ...... 74 3.6.1 National Provisions for Private Partnership in Health ...... 75 3.6.2 UCMB Hospital Administrative Principles and Structure ...... 76 3.6.3 Villa Maria Hospital Administrative Structure ...... 77 3.7 Ownership, Control and Sponsorship of Church-founded Institutions ...... 80 3.8 Conclusion ...... 83 CHAPTER IV ...... 84 EVALUATION, CHALLENGES AND RECOMMENDATIONS ...... 84 4.0 Introduction ...... 84 4.1.1 Evaluation on Policy Implementation in Education ...... 84 4.1.2 Evaluation on Policy Implementation in Health Care Facilities ...... 87 4.2 Challenges in Policy Implementation in Church-founded Institutions ...... 88 4.2.1 Challenges in Education Policy Implementation ...... 89 4.2.2 Challenges in Health care Apostolate ...... 91 4.3 Recommendations ...... 93 4.3.1 Pastoral Recommendations ...... 93 4.3.2 Canonical Recommendations ...... 94 4.4 Conclusion ...... 95 GENERAL CONCLUSION ...... 97 BIBLIOGRAPHY ...... 100 APPENDICES ...... 105 Appendix I: Extracts from Education Policies...... 105 Appendix II: Extracts from Medical policies and Reports ...... 106

VIII

LIST OFABBREVIATIONS

AAS Acta Apostolicae Sedis BOG Board of Governors BOT Board of Trustees c. canon cc. canons CCE Congregation For Catholic Education CCEO Codex canonum Ecclesiarum Orientallium CCLA CAPARROS, E., et al. (eds.), Code of Canon Law annotated CD SECOND VATICAN COUNCIL, Decree Christos Dominus CIC/17 Codex iuris canonici, Pii X Pontificis Maximi iussu digestus CIC Codex iuris canonici, auctoritate Ioannis Pauli PP. II promulgates CLSA Canon Law Society of America CLSA Comm1 CORIDEN, J., T.J. GREEN and D. E. HEINTSCHEL, ed, New Commentary on the Code of Canon Law: A Text and Commentary CLSA Comm2 BEAL, J. P, J. A. CORIDEN, T. J. GREEN (eds.), New Commentary on the Code of Canon Law CLSANZ Canon Law Society of Australia and New Zealand CLSGBI Canon Law Society of Great Britain and Ireland CMS Church Missionary Society CORPs Community Resource Persons (Community Health Workers) CoU Church of Uganda CBOs Community-Based Organisations CSOs Civil Society Organisations DDHS District Director of Health Services DHMT District Health Management Team DSC District Service Commission ECS Ethiopian Catholic Secretariat EfS Education for Sustainability ERDs Ethical and Religious Directives Exegetical Comm MARZOA, A., J.MIRAS, R. RODRIGUEZ-OCEANA ed., and E. CAPARROS (gen. ed. of English Translation), Exegetical Commentary FB-PNFP Facility-Based Private Not-For Profit FBOs Faith - Based Organisations FLANNERY1 FLANNERY, A. (gen. ed.), Vatican Council II, Vol. 1

GE SECOND VATICAN COUNCIL Gravissimum Educationis, Declaration on Christian Education GS SECOND VATICAN COUNCIL, Pastoral Constitution Gaudium et Spes GoU Government of Uganda HC Health Centre HDPs Health Development Partners HMIS Health Management Information Systems HMT Hospital Management Team HPAC Health Policy Advisory Committee HPRC Health Policy Review Commission HRD Human Resource Development HSSIP Health Sector Strategic and Investment Plan HUMC Health Unit Management Committee Jn John LC Local Council LG SECOND VATICAN COUNCIL, Dogmatic Constitution Lumen Gentium Lk Luke LLU Lower Level Unit MADDO Masaka Diocesan Development organisation MHCP Minimum Health Care Package MoES Ministry of Education and Sports MoFPED Ministry of Finance, Planning & Economic Development MoH Ministry of Health MoLG Ministry of Local Government Mt Matthew NGO Non-Governmental Organisation NHA National Health Assembly NHP National Health Policy NFB-PNFP Non-Facility-Based Private Not-For-Profit NTS Nurses Training School PDC Parish Development Committee PEC Parish Education committee PLWA People Living with AIDS PNFP Private Not - For- Profit PPPH Public-Private Partnership in Health RCC Roman Catholic Church RRP Regolamento per le rappresntanze ponficie (Regulation for Pontifical Representation) RSV Revised Standard Version Bible SDC PONTIFICAL COMMISSION FOR JUSTICE AND PEACE, Compendium of the Social Doctrine of the Church SMCs School Management Committees UCMB Uganda Catholic Medical Bureau UCS Uganda Catholic Secretariat UEC Uganda Episcopal Conference (Conference of Catholic Bishops of Uganda) UNESCO United Nations Educational Scientific and Cultural Organisation UJCC Uganda Joint Christian Council UMMB Uganda Muslim Medical Bureau UNMHCP Uganda National Minimum Health Care Package UPHA Uganda Private Health Unit Association

GENERAL INTRODUCTION

Motivation

For any pastoral agent in a foreign country one of the salient issues of concern would be the person’s relationship with the civil authorities and the impact and implications of his or her work in the society. The motivation for this essay arises from two years of pastoral experience in Ethiopia (2009 -2011), from which the writer was captivated by the church-state relations in this country to reflect back on the situation and legal status of the Catholic Church in his home country Uganda.

It is interesting to note that in Ethiopia up to the time of this writing, all the required documents such as identity cards and working permits for all foreigners in pastoral activities of the Catholic Church are processed through the ECS. This is the

Ethiopian Catholic Secretariat, a body that deals with all matters pertaining to the

Catholic Church in partnership with respective state offices.

A lot of advantages accrue to such a procedure. First among others is the securing of legal documents and acquisition of necessary facilities for apostolate and humanitarian support projects. Second is the exemption from taxes for the use of these facilities so long as they are not for profit. These include both movable assets like vehicles for transport facilitation, and immovable assets especially land for residence and projects such as schools and hospitals.

Unfortunately, at all levels; social, political and economic, the Catholic

Church is taken as a Non- Governmental Organisation (NGO). In the local language of the Borana People it is Dirigitti, which means Association, Company or

Organisation. This has a lot of impact on religious missionary presence and work in

Ethiopia today. For instance, many of the schools founded and run by the Holy

Ghost Fathers (Spiritans) could not get any assistance from the government in terms of food and scholarly material such as books, simply because they belong to an organization, which is the Catholic Church in this respect.

Relating the above scenario with studies in Church History and the Social teaching of the Church, one can easily establish a chain and flow, a trend of interaction and relation between Church and State. These have at times been close allies in cooperation for the common good and yet at other times so antagonistic.

Behind all is a claim for both temporal and spiritual power on the side of Church which civil rulers have accepted or rejected depending on how it suits their political interests at a given time. This will be further elaborated in the first chapter of this essay.

Problem statement

The central question addressed in this essay is how should Church and State relate when it comes to administration of church founded schools and hospitals? As social institutions, they are subject to the civil regulations that govern them on one hand, and on the other, as founded by the Catholic Church and in a way, means of her evangelising mission; these institutions have to keep their Catholic identity.1

This obligation is mandatory irrespective of whichever grants the state may

1 Cf. JOHN PAUL II, Ex Corde Ecclesiae, On Catholic Education, 1990. It is a supplementary legislative text to the canons on Catholic education and deals with the nature and identity of Higher Education Institutions.

contribute to their running. In any of such interactive collaborations there has to be a set of guiding principles for smooth administration and delivery of services.

Unfortunately, many pastoral agents and administrators of Catholic Church- founded institutions like schools and hospitals are not adequately informed and conversant with the existing guiding principles and policies as stipulated in both

Church and civil legislations. This often results in conflict especially in terms of administration whereby, some government impositions may contradict the intentions and teaching of the Church as a foundation body. For instance, the government may restrict religious education in schools or promote controversial practices of family planning methods, abortion or euthanasia in hospitals, which are against the stand of the Catholic Church in view of the respect accorded to human life and dignity.

The administrators will be in a dilemma as to what principles to follow in making a decision especially if, with failure to comply, the state threatens to withdraw its aid or to close the institution in question. In this case, recourse to the available policies that govern such partnership between the foundation body and the state would be handy in resolving the problem.

Such an insight was a great motivation for venturing into this thorough research on the availability of policies and their implementation, especially in view of the current trend of many Church - founded schools and hospitals in Uganda being taken up or aided by the Government. The point of interest here is in finding out the impact of such cooperation or intervention of the Government of the

Republic of Uganda in some of these institutions in matters of administration. This work is also intended to analyse the canonical implications of this phenomenon in view of what policies exist and how they have been implemented to suite

contemporary needs. The essay will go further into examining the level of awareness and application of these policies in respect to, and in safeguarding the intentions of the Church as a founding body and steward of Ecclesiastical goods.

Basing on the findings, the essay will suggest some pastoral and canonical avenues as recommendations for better awareness and progress in Church and State relations in Uganda. The scope of the research is limited to the current situation in sampled schools and hospitals that belong to Masaka Diocese, under whose ecclesiastical jurisdiction is the largest part of the South Western region of Uganda.

Hypotheses

At the background of this research there is a firm conviction in the propositions that;

i) Church and State can peacefully co-exist if they both realise their

interdependence in promoting the welfare of humanity.

ii) Again, healthy Church-State relations can only prevail where there is

respect for the inalienable rights of both physical and juridical

persons.

iii) The research also envisages that enduring Church-State relationship

can be achieved in observance of ecclesiastical and civil laws.

Therefore, in simple terms this work begins with acknowledging, respecting and emphasizing, that the human person is the raison d’être for the existence of both church and state. These two institutions should at no moment be considered or even seek to operate as entirely separate entities. However, a modicum of autonomy is to be guaranteed for the realisation of the distinct though related ends of each of these human institutions. In this respect, using similar means, the state has to focus on the

common good for the growth of both individuals and the society at large. The

Church, which is the conscience of society, goes a step further to stress integral development by incorporating the physiological and spiritual needs of the human person as stressed in her social teaching. In the teaching of the Second Vatican

Council, it is the integral development of the human person that brings the Church and State together (cf. GS, 40).

Besides, the given hypotheses take into consideration the dignity of the human person upon which all other rights are attached as natural or acquired rights.

Among such inalienable rights that every state is expected to respect is the freedom of expression and worship, that is, religious freedom as also expressed in the 1948

UN Declaration of Human rights. The broader view of rights incorporates both physical and juridical persons like the Catholic Church and other organisations recognized as such in international and state laws including the 1995 Constitution of the Republic of Uganda as will be treated later. Thus, the stand on church-state relations, in a generic sense, is that of distinctive complementarity.

Objectives

It is anticipated that this work will be of great assistance in fostering and sustaining a good rapport in institutional administration especially in respect to the dignity of the human person. This will be through more awareness and application of the guiding principles and policies laid down in the interaction between churches and organisations as foundation bodies, and civil authorities as stakeholders in regard to the respective institutions.

With such awareness, many will also discover that Church Law is but an instrument to facilitate ministry in ensuring, safeguarding and promoting the

obligations and rights of Christ’s faithful who are equal in dignity and action by which they all cooperate in building up the Body of Christ which is the Church (cf. c. 208).

Methodology

The approach in this essay is exegetical, analytical and propositional. In this case, the work takes into consideration the canonical provisions on administration of church institutions and analyses the situation in terms of how such provisions are implemented. After such a thorough analysis, pastoral and canonical recommendations are given for a better relationship between the Catholic Church and the State in running institutions and safeguarding the catholic ethos in rendering services for the common good.

This approach requires a practical reference where appropriate, to civil law as applied in Uganda at the moment of this research. Some areas of interest here will be the legal status of the Church, the regulations surrounding acquisition, administration and alienation of property in respect to schools and hospitals. The research greatly relies on library material, some internet sources and personal interaction with the administrators of some schools and hospitals.

Structure of the Essay

The essay comprises four chapters. The first chapter deals with Church and

State relations at universal level. This is traced from the historical context of the

Roman Empire where Christianity became a state religion in the fourth century. The second chapter takes into consideration the principles that govern Church-State relations as found in the social doctrine of the Catholic Church. They are also expressed in her legal codification especially in c. 22 which is practically applied in

some canons on temporal goods. As deemed expedient, reference will be made to other canons which highlight the collaboration that exists between Church and State at both universal and particular levels.

Having established the principles, the third chapter turns to their practical application in the administration of schools and hospitals taking Masaka Diocese as a case study. A special attention is here given to the Education Act of 2008 and the guidelines of the Uganda Catholic Medical Bureau (UCMB) in relation to the

Uganda Government National Policy on Public Private Partnership in Health

(NPPPPH). Finally, chapter four will conclude with the canonical and pastoral recommendations based on the findings of the research.

The conclusion envisages that all stakeholders maintain a well-defined relation between the Church and State in Uganda based on the guiding principles agreed upon by both institutions. This entails among other considerations; a separation in terms of competencies, which calls for cooperation and interdependence rather than an absolutist form that, would make the two parties rival competitors instead of complimentary partners in service to the human person. With such approach and due respect to the intrinsic values, both the Church and the State will work hand in hand for the integral development of the human person who is at once endowed with, and entitled to, natural realities as means to his or her supernatural destiny.

CHAPTER I

CHURCH - STATE RELATIONS AT THE UNIVERSAL LEVEL

1.0 Introduction

This chapter begins with a brief historical background on the unity and later separation of church and state on temporal matters. This will be followed by an exposition on the influence of Roman civil law on Church law that developed into interdependence between the two legal systems. In the interest of practical application, there will also be an analysis of the Papacy in view of the spiritual and temporal powers of the pope. Given that the exercise of such powers is, in a practical way, linked to the Universal Church and the Vatican City State, this chapter will explore as well the creation of the Papal States that culminated into the erection of the Vatican City State. This will lead to the roles of Papal Legates who are the ambassadors of the Pope at the level of particular churches and states.

1.1 Historical Overview: Unity and Separation of Altar and Throne in Church-State relations

The Historical traces of the relationship between church and state owe a lot to the leadership of the Catholic Church. This revolves around the episcopacy in general and the papacy in particular. Here, the focus is on the influence of the papacy in spiritual and temporal matters, and the interdependence that existed between the Roman civil law and the Church law also referred to as Canon law.

It is quite evident that through her leadership and organisation the Church gained a lot of social influence that in turn political leaders beginning with Roman

Emperors of the fourth century and other subsequent monarchical regimes of Europe used the Church as an ally for their political hegemony. For instance Emperor

Constantine I sought to unite the empire through Christianity as a state religion.2

This of course had its ups and downs on the society in general and on the Church in particular.

1.1.1 Unity between Altar and Throne

In the fourth century Christianity began to be seen as a symbol of uniting the whole empire as Christendom. The pace for this was set by Emperor Constantine I

(311-337A.D) who declared Christianity a state Religion, thus putting an end to its persecution on political grounds. With this Edict of Milan 313 which, was only actualised (ca. 380A.D) under Theodosius I,3 Christianity started its golden moments characterised by a modicum of unity between the altar and the throne, that is, the Church and the Empire. Such moments also recorded a greater influence of

Roman legal system throughout the Empire. The first ecumenical Council of Nicaea

2 N. TANNER, A New Short History of the Catholic Church, London: Burns and Oates 2011, 29-30. 3 Cf. R.H. SCHMANDT, “Theodosius I Emperor of Rome”, in New Catholic Encyclopaedia, XIV, Washington D.C.: University of America – Heraty and Associates Inc., 1981, 25-26.

(325 A.D) indicates a primary incidence of imperial involvement in church affairs because of the search for political unity within the Roman Empire.4

The reign of Constantine and his followers really “transformed the relationship between the Christian Church and the Roman government. They not only embraced Christianity themselves, but made it a pillar of the Roman official establishment. In that process the Church became virtually an organ of imperial government, enriched by privileges, favours, and public funds, but also used as an arm of imperial administration.”5

Among other subsequent privileges Granfield highlights the abrogation of laws prejudicial to Christians, the return of confiscated church property which had been taken during the liquidation campaign of Diocletian, and the permission granted to Christians to form a legal corporation. Indeed one can rightly concur with him when he says: “The decree of toleration was one of the decisive events in world history. The Empire gave the Church its freedom and the Church in turn shared with the Empire its stability and spiritual resources.”6

Again, besides the increase in number of Christians and building of more churches as a consequence, the Church realised institutional development as a result of the Edict of Milan.

Church government and law were modelled more and more after the Roman Ideal, giving the Church a marked institutional development. Once Constantine moved the seat of the Empire to Constantinople […] the papacy began to exert a stronger influence in the West. By the end of the fourth century, not only had Christianity become the official religion of the state – under Theodosius I in 380 – but already several popes were slowly moving toward an explicit statement of papal primatial authority. The Edict

4 Cf. J. STEVENSON, ed., A New Eusebius: Documents Illustrating the History of the Church to A.D. 337; New edition, revised by W. H. C. Frend 1987, 344- 347. 5 J.A. BRUNDAGE, Medieval Canon Law, 7-8. 6 P. GRANFIELD, The Papacy in Transition, New York: Doubleday and Company Inc.,1980, 4.

of Milan then marks an important transitional date in the history of the papacy.7

At times, political situations favoured the exercise of both powers either by the emperor or by the pope. Comparing the East and West in approach to temporal power, Cairns observes that; “In the absence of effective political control in the

West, the pope became a temporal as well as a spiritual leader in times of crisis.

Emperors were almost popes in the East, and in the West popes were almost emperors.”8

1.1.2 Separation between Altar and Throne

Troubles cropped in when the time was ripe to render to Caesar what belongs to him and also to God what belongs to God (cf. Mt 22:15-21). In other words, it was a claim for distinction, or even absolute separation, between the two centres of authority over the same human being that has both a spiritual calling as a

Christian, and a moral as well as social obligation as a citizen of this world (cf. GS,

40, 43 and 76). Therefore, there is both a temporal and supernatural destiny of the human person that both ecclesial and civil authorities should acknowledge and respect.

The move towards separation was initiated by the invasion and capture of the

Roman Empire by Germanic people in the fifth and sixth centuries. The rulers of

Germanic kingdoms withdrew political and juridical powers from the clergy and took a personalistic rather than territorial attribute to law. In this respect, Church law only bound catholic families while others were also bound by laws of their heritage.9

7 P. GRANFIELD, The Papacy in Transition, 4-5. 8 E. CAIRNS, Christianity through the Centuries: A History of the Christian Church, 3rd Ed., Grand Rapid- Michigan: Zondervan 1996, 196. 9 Cf. J. A. BRUNDAGE, Medieval Canon Law, 19-21.

Agitation for separation became more prominent in the liberal nationalistic movements of the eighteenth and nineteenth centuries following enlightenment and

French Revolution. In addition, Carlos Jose’ traces ‘antijuridical’ theories from

Protestant Reformation of the sixteenth century. Here, the reformers sought to identify themselves more with civil authorities having disregarded Church authority and, in that way, denied any juridical significance to Church law.10

The controversy on the side of the Church was not just about separation and independence but supremacy of the spiritual over the temporal power. It was a serious bone of contention that marked imperial and ecclesial relations right from the fifth to the eleventh century in the fight against lay investiture during the reign of

Pope Gregory VII (1073- 1085).11

John of Paris as quoted by John Courtney Murray explains the relationship between the temporal and spiritual powers in that they are “distinct and independent in their origins [the spiritual from God and the temporal from the people], distinct too but not wholly independent in their ends. His first concern is to establish the primacy in dignity of the sacerdotal power by reason of the primacy of its end, ‘the enjoyment of God,’ to which the good life on earth, over which the royal power has charge, is itself ordained.”12 The implication here is that despite their distinction the two powers are complimentary. Such complementarity inevitably calls for connection and interdependence in legislative matters to which the following section is dedicated.

10 C. J. M., ERRAZURIZ , Justice in The Church: A Fundamental Theory of Canon Law, English Trans, Jean Gray, Montreal: Wilson and Lafleur 2009, 26-30. 11 Cf. E. CAIRNS, Christianity Through the Centuries: A History of the Christian Church, 204-205. 12 Cf. M. J. COURTNEY, “Contemporary Orientations of Catholic Thought on Church and State in the Light of History”, in Theological Studies 10 (1949), 177-234, 202-203.

1.2 Interdependence between Roman Civil law and Church law

Because of prior persecution especially during the time of Emperor

Diocletian, traces of Church law in the first three centuries centred on internal matters like order of worship, relationships among members of the community, and rights and obligations assigned to different subgroups. Examples of such laws included the Didache, Traditio Apostolica and the Didascalia Apostolorum all of which were derived from the teachings of the Apostles.13

1.2.1 Church Law as a Legal System

After the imperial persecutions, the legal system of the Catholic Church developed to ensure proper discipline and administration for effective realisation of her ultimate purpose which is the salvation of souls (cf. cc. 747, § 2 and 1752). It all emerged within the cradle of the Roman Empire and such an approach became expedient due to expansion and growth of the Church into a social institution that called for orderly procedure. Here, “its leaders quickly realised that a viable community not only needed good will and fraternal love, but also required some rules and regulations for the orderly conduct of its business, to define the functions of its officers and to govern relationships among its members.”14

The Church thus became more legalistic and hierarchical in organisation.

Hence, by the beginning of the fifth century “Canon law had begun to emerge as not only an important element of Christian religious life, but also as an autonomous legal system of late Roman government.”15

In practice we can say that rather than mere influence, there was mutual interdependence between Church law and Roman civil law. The Bishops’ courts

13 Cf. J. A. BRUNDAGE, Medieval Canon Law, New York: Longman 1999, 5-7. 14 J. A. BRUNDAGE, Medieval Canon Law, 5. 15 J. A. BRUNDAGE, Medieval Canon Law, 17.

(audientia episcopalis), at the time lacked penal procedure against serious deviations like heresy and moral lapses. To this end Brundage argues: “Since canon law in the fourth and fifth centuries had barely begun to develop its own distinctive rules governing evidence and procedure in contentious matters, episcopal courts by and large adopted for their own purposes the norms current in Roman civil law.”16

However, there was a lot of variation depending on regions or on different judges even within the same region.

1.2.2 Interdependence between Roman Civil Law and Church Law

Interdependence arises from the fact that whatever pertains to an institution like the Church, has in one way or another, a bearing on the civil society and therefore cannot be totally dissociated from civil regulations. In the same way, civil stipulations do not exonerate church members since they are also part and parcel of a society bound by civil law.

Hence, as Lynskey notes, depending on the relationship, the Catholic Church has always consulted with the heads of state and civil law on a range of matters.

These could entail the “constitution and division of dioceses, the selection of bishops, the teaching of religion in the schools, and the laws governing marriage, religious orders, ecclesiastical and religious property and the maintenance of cemeteries.”17

The interdependence between the Catholic Church and State became more vivid in the Middle Ages and in the process came to be reflected in their legal systems. Church leaders and courts were instrumental in determining social and civil disputes and, where the Church law was lacking, appeal to civil law became

16 J. A. BRUNDAGE, Medieval Canon Law,12. 17 E. M. LYNSKEY, The Governance of the Catholic Church, New York: P. J. Kennedy and Sons 1952, 88.

expedient. A case in point could be the laws on marriage and property ownership.

Such legal interactions developed into the ius communes – the general rules that incorporated Roman civil law and Canon law (ecclesiastical law) in court proceedings.18

In this line of thought Caparros adds: “The Middle Ages universities taught both legal systems, the so called utriusque iuris which was a mixture of Roman law contained in the Corpus iuris Civilis and canon law which was being compiled in the

Corpus iuris Canonici […] This mixture of legal systems was known as the Ius

Commune, a common law which was in force throughout Europe not withstanding some local adaptations.”19

According to Brundage, interdependence became more significant in the sense that, “canonists in the late twelfth century habitually borrowed terms, ideas, concepts, and institutions from civilians, while civilian writers frequently compared canonical institutions and practices with those that they found in Roman legal texts.”20 Such a spirit is still reflected in the 1983 code of Canon Law especially cc.

17and 22 in respect to interpretation of the Code and canonization of civil law.

The salient issues of concern to the Church in relation to the Roman society were; Christian marriage and family law, attitude toward slavery, economic activities and the relation between Christians and their non- Christian neighbours.

There were many other restrictions imposed and distinctions set in the church law that further separated Christians from other pagan Roman citizens in regard to their

18 Cf. J. A. BRUNDAGE, Medieval Canon law, 60-62. 19 E. CAPARROS, “Criminal law Protection of Human Rights”, in The Penal Process and the Protection of Rights in Canon Law: Proceedings of a conference held at the Pontifical University of the Holy Cross Rome, March 25-26, 2004 ed. Patricia M. Dugan, Montreal: Wilson & Lafleur 2005, 204-205. 20 JAMES A. BRUNDAGE, Medieval Canon Law, London- New York: Longman 1999, 59.

way of conduct even in business affairs and education of their children.21 Despite all these legal and social differences the Pope has up-to-date retained both temporal and spiritual powers. How this happened in the course of history is the next point of concern.

1.3 Spiritual and Temporal Powers of the Roman Pontiff

Catholic tradition has in its patrimony that the papacy is the continuation of the Petrine ministry that Jesus entrusted to Peter and his successors. This power is transmitted in its fullness plenitudo potestas by virtue of office, independent of personal character. The papacy as Patrick Granfield remarks “is an essential and permanent element in the Church of Christ, because it is willed by Christ. It has both a human and divine foundation, but it is the latter that guarantees its permanence.”22

Because of her divine origin and supernatural end, the Church has always vindicated the right against undue imperial interference. This is in matters pertaining to her internal organisation, defining of doctrine, the purpose and aim of the Church and in organisation of Christian life.23 Hence, this perspective accords supremacy to the spiritual over temporal powers especially as vested in the Roman Pontiff.

Examples are abundant in such inclinations as manifested in Popes like

Gregory VII (1073 - 1085), Innocent III (1198-1216) and Boniface VIII (1294-

1303). As pontiffs at their respective time, they were strong on the power of the papacy in both temporal and spiritual affairs and engaged in the struggle against lay

21 Cf. J.A. BRUNDAGE, Ibid., 12-13 22 P. GRANFIELD, The Papacy in Transition, New York: Doubleday and Company Inc., 1980, 3. 23 Cf. W. ULLMANN, “Papacy”, In New Catholic Encyclopaedia, X, Washington D.C.: University of America Press- Jack Heraty and Associates Inc, 1981, (951- 960), 953.

investiture that dominated the Middle Ages especially their time, that is, from the eleventh to the fourteenth centuries.24

However, since then there has been tension at different levels and in different countries especially when it comes to matters pertaining to the temporal goods of the

Church as a means for realising her supernatural end. To clarify and resolve such tensions, the canonical tradition stresses that, as a moral and juridical person, the

Catholic Church has an inherent right to lawfully acquire, retain, administer and alienate temporal goods in pursuit of her proper objectives (cf. cc. 1254-1255). 25

Jordan Hite concurs with the four main parts that form the titles of Book V that deals with temporal goods in the Code of Canon Law. These include acquisition, administration, contracts and alienation of property, and on pious wills and foundations.26 From these, this essay concentrates on administration in the third chapter. It is in the person and office of the Roman pontiff that the supreme power over spiritual and temporal affairs of the Church is vested. His power is both temporal and spiritual as treated in the following section.

1.3.1 The Powers of the Roman Pontiff in Ecclesiastical Law

The second book of the 1983 Code entitled The People of God, deals with the hierarchical constitution of the Church in its second part. The first section of eight canons (cc. 330-337) is dedicated to the supreme authority of the Church.

After the introductory canon, the first article treats the power of the Roman pontiff.

24 Cf. E. CAIRNS, Christianity Through the Centuries: A History of the Christian Church, 204-207. 25 Codex iuris canononici , auctoritate Ioannis Pauli PP. II Promulgatus, fontium annotatione et indice analytico-alphabetico auctus, Libreria editrice Vaticana, 1983, 1997, New English Trans. Code of Canon Law, Canon Law Society of Australia and New Zealand ( = CLSANZ). 26 J. HITE, “Church Law on Property and Contracts”, in The Jurist Studies in Church Law and Ministry, 44 (1984), 117.

Suffice it here to cite a few canons about the pope and his relation to the college of bishops in terms of jurisdiction.

1.3.2 The Pope as Bishop of the Roman Church

In the Spirit of the Second Vatican Council especially Lumen Gentium 22, and following the long standing tradition of the Catholic Church, the 1983 Code allots full, immediate, supreme and universal, proper and ordinary power to the bishop of the Roman Church by virtue of his office. The Latin terminology potestas for power or authority, and munus for office highlight the spirit of service that has to permeate authority in the Church. Canon 331 legislates on the papal titles and his power of jurisdiction when it states:

The office uniquely committed by the Lord to Peter, the first of the Apostles, and to be transmitted to his successors, abides in the Bishop of the Church of Rome. He is the head of the College of Bishops, the Vicar of Christ, and the Pastor of the universal Church here on earth. Consequently, by virtue of his office, he has supreme, full, immediate and universal ordinary power in the Church, and he can always freely exercise this power.

A better understanding of this prescription requires an explanation of the salient attributes; supreme, full, immediate and universal ordinary power, in connection with the jurisdictional power and the office of the pope. Some of these terms had been used in earlier legislative texts like the 1917 code while others are peculiar to the Second Vatican Council and the revised code of 1983. To this end,

Knut Walf is of the view that the elements in the definition are not new but the combination of the terms.27 For instance, Granfield mentions the use of these terms in the First Vatican Council in its constitution Pastor aeternus without postulating any significant limits. 28

27 Cf. K. WALF, “The Hierarchical Constitution of The Church”, in CLSA Comm2, 423- 428. 28 GRANFIELD, P., The Limits of The Papacy: Authority and Autonomy in the Church, London: Darton, Longman and Todd 1987, 39.

1.3.3 Supreme, Full, Immediate, Universal and Ordinary power

The supreme power is with respect to the universal Church and is attributed to the Pope and the college of bishops together with him, as explained in c. 336.

Some expressions of this supreme power of the Pope are evident in the restrictive provisions that; no appeal can be made against his judgment or decree (c. 333, § 3); he is the head of the college of Bishops (c. 336); and supreme shepherd and teacher

(c. 749, § 1).

Furthermore, in the context of juridical praxis it is noted that the pope constitutes the court of final appeal in the Church. For instance, c. 1442 states: “The

Roman Pontiff is the supreme judge for the whole catholic world. He gives judgment either personally, or through the ordinary tribunals of the Holy See, or through judges whom he delegates.” Besides, the Roman Pontiff can be judged by no one (c.1404) and certain cases are by law reserved to him (c. 1405, § 1, 1°, 2°,

3°) while others he may reserve to himself (c. 1405, § 1, 4°). At the background of this legislation is the earlier contention that the pope “stands outside and above the

Church entrusted to him,” and therefore, “Papa a nemine iudicatur.”29

The prescriptions above are also reminiscent of the late 19th century struggle for recognition of papal supremacy from civil governments as seen in the First

Vatican Council (1869-1870).30 It was this Council too that more vividly consolidated the spiritual power of the papacy contemplating the loss of Papal States as will be treated later in this chapter.

Concerning his power as full, the Roman Pontiff as Vicar of Christ exercises the power of Christ in and over the Church, vicariously exercising Christ’s pastoral

29 W. ULLMANN, “Papacy”, in New Catholic Encyclopaedia, X, 953. 30 Cf. K. WALF, “The Hierarchical Constitution of the Church”, in CLSA Comm2, 423- 428.

care for God’s people. According to Roman canon law tradition, as jurisdictional, the pope has public power of ruling that obliges obedience. Hence: “The Pope is subject to no superior human power in the Church because his authority lacks nothing. The papacy is not simply an office of inspection or direction, nor is a pope’s power only a part, however important, of supreme power.”31

On the same wavelength, Ullmann argues that the primacy of the Pope is both magisterial and jurisdictional given its biblical foundation in Mt 16:18-19 and

Jn 21:17. It is magisterial in terms of defining doctrine and infallible teaching of the

Church, and it is jurisdictional in the form of making final decisions on governance.32

The bishops as well share in this power with the pope. Hence, together with the pope by virtue of ordination or episcopal consecration, bishops receive the fullness of the tria munera Christi; that of sanctifying, teaching, and governing.

Therefore, the Pope has a truly episcopal power like other bishops in their respective dioceses only that, in him that power is supreme and independent, while that of other bishops, though immediate and ordinary, is dependent on him. So, while he exercises it freely, with or without the college of bishops, the bishops can only do so in communion with the Roman Pontiff.33 However, there is no separation of powers in the Church at the universal level: the Holy Father is Supreme Legislator, Supreme

Judge, Supreme Executor, although he uses various organs of government for these different functions.34

31 GRANFIELD, The Limits of the Papacy; Authority and Autonomy in the Church, 39 - 40. 32 W. ULLMANN, “ Papacy”, 951. 33 Cf. Ibid., 41. 34 Cf. K. WALF, “The Hierarchical Constitution of The Church”, in CLSA Comm2, 435.

These are various organisms of the Roman Curia, through which the Roman

Pontiff usually conducts the business of the Universal Church, act in his name and with his authority, for the good and for the service of the Churches (cf. c. 360). They function within the roles of their offices and according to the faculties, ordinary or extraordinary, which have been granted them by the Holy Father. They are bound to respect the Canon Law, except insofar as they have the faculty to dispense therefrom, and there can be recourse to the Apostolic Signatura, pleading illegality against administrative decisions (c. 1445, § 2), except those given by the Roman

Pontiff himself or by an Ecumenical Council (c. 1732).

In this line of thought, “The Fathers of the Council judge[d] that it would be most advantageous if these departments (of Curia) were to have more frequent recourse to the advice of laymen of virtue, knowledge and experience, so that they also may have an appropriate role in the affairs of the Church” ( Christus Dominus

10).

Again, the power of the Roman Pontiff is immediate because he has the right of freely communicating with the shepherds and flocks of the whole Church in the exercise of his office, so that they can be instructed and guided by him in the way of salvation. He does not need to go through any other intermediary whether political or ecclesiastical. In this respect then, any of the faithful can have recourse to the

Holy Father (c. 212, § 3) and he can deal with them directly without necessarily going through the other local ordinaries, and those who are equivalent to ordinaries by law (cc.134, § 1 and 368).

Besides, the Pope has Universal Power in relation to the whole Catholic

Church, not merely to the so - called Latin Church (c. 1) but also to the sui iuris

Churches of the Oriental Rites as reflected in both the Latin and Oriental codes: c.

333, § 1 and CCEO cc. 43 and 45. By virtue of his office, the Roman Pontiff not only has power over the Universal Church, but also has pre-eminent ordinary power over all particular Churches and their groupings. The First Vatican Council spoke of the Roman Pontiff’s power as truly episcopal over the whole Church and all its parts; however the use of this term was misunderstood and while the import is the same in Vatican II and in 1983 Code, nevertheless the term episcopal is not used.35

The Roman Pontiff also exercise his power as ordinary in the sense that this power is attached to his office by virtue of law itself, ipso iure (c. 131, § 1). In the case of the Supreme Pontiff, his authority derives basically from the divine law itself. The following paragraph of the same canon explains the exercise of ordinary power either as proper or as vicarious. It is proper when exercised in one’s own name and in virtue of the law itself, and it is vicarious, when attached to the office by law but exercised in the name of another (c. 131, § 2).

Though supreme and full it is important to highlight that the power of the

Pope is not absolute. This idea also emerged in both the first and second Vatican

Councils. To this extent, in concurrence with many canon lawyers, Granfield succinctly points out the limits to the office of the pope which are official, legal, dogmatic and practical. He thus concludes his argument: “The office of the papacy, granting its extensive prerogatives, is not a pure example of unfettered or absolute power. The Pope’s actions are limited by the purpose of his ministry; the natural

35 According to canon 218, § 2 of the 1917 Code, this power is truly episcopal, ordinary and immediate both in all and each of the churches, and in all and each of the pastors and faithful, independently of every human authority.

divine and ecclesiastical law; revelation, defined doctrine; and practical circumstances.”36

1.3.4 The power of the Bishops

As hinted on above and in line with Lumen Gentium 21, and c. 375, § 2, the bishops by virtue of their consecration share in the power of the Bishop of Rome as successors of the apostles. The difference comes in the way they exercise this power in that, the bishops are limited while the pope is not, and also in the fact that, in addition to the consecration, the pope acquires his power by valid election and acceptance of the same (c. 332, § 2). The bishops assist the Roman Pontiff in exercising his office. Canon 334 elaborates on the ways of this cooperation:

The Bishops are available to the Roman Pontiff in the exercise of his office, to cooperate with him in various ways, among which is the synod of Bishops. Cardinals also assist him, as do other persons and, according to the needs of the time, various institutes; all these persons and institutes fulfil their offices in his name and by his authority, for the good of all the Churches, in accordance with the norms determined by law.

The relationship between the Pope and local Bishops in the exercise of power is geared towards maintaining the link between the local Church and the

Universal Church. On this point, Granfield remarks: “The purpose of the Pope’s universal authority is not to absorb the responsibility of the local bishop. The Pope as Bishop of the Church of Peter and Paul manifests solicitude for all the Churches; he is at the service of the universal communion.37 Buckley understands the connection between the two in relational terms. He insists that “primacy and episcopate must be categorized as relations […] as the words denote either the

36 P. GRANFIELD, The Limits of the Papacy: Authority and Autonomy in the Church, 76. The whole of the third chapter entitled “The possibility of Limitation” in its 26 pages (51-76) deals with this issue in detail. 37 P. GRANFIELD, The Limits of the Papacy, 120.

relationship itself (“Primacy”) or bearers/subjects of a set of relationships

(“episcopate”).”38

The relations so far treated concern the internal affairs of the Church under the care of the Pope and the Bishops in communion with him for the Universal

Church, and as symbols of unity within their respective dioceses. The external matters in connection with the practical exercise of temporal power can be traced from the creation of Papal States that began with the donation of Pepin III which is elaborated in the next section.

1.3.5 The Donation of Pepin III and the Papal States

Almost three centuries before the donation of Pepin nuances for the superiority of the spiritual over the temporal power had begun to appear as early as the fourth and fifth centuries. This was during the times of Ambrose of Milan (ca.

390 A.D) and Gelasius I (492-96 A.D) respectively. Ambrose had taught that;

“‘where matters of faith are concerned, it is the custom for bishops to judge

Christian emperors, not for emperors to judge bishops’[…] ‘The emperor is within the Church and not above the Church.’” In his turn, Gelasius I used the figure of the two swords; one for spiritual and the other for temporal power. Both of these powers

Christ entrusted to Peter who delegates the temporal power to a king or emperor as ruler and in this case, the latter remains inferior to the former. 39

Pepin’s donation came from the interaction with Pope Stephen II (752-757).

During this time, certain territories became fiefdom of the Holy See. These States of the Church were often invaded, regained, suppressed, and reconstituted. In view of

38 M. J. BUCKLEY, Papal Primacy and Episcopate: Towards A Relational Understanding, New York: The Crossroad Publishing Company 1998, 34-35. 39 C. M., BELLITO, 101 Questions And Answers on Popes and The Papacy, New York: Paulist Press 2008, 22.

such attacks, the Pope requested help against the Lombards from Pepin III, by then

King of the Franks.

The king “agreed and even promised to give the Pope the Exarchate of

Ravenna, some Byzantine territory in central Italy, and the duchies of Spoleto and

Benevento. In gratitude, Stephen re-consecrated Pepin King of the Franks and gave him the added title of Patrician of the Romans. Pepin eventually fulfilled his promise and deeded the captured cities to ‘St. Peter and the Roman Church.’”40

Several outcomes that changed the face of the Church in her relation to the temporal world are associated with this donation. First, it marked the beginning of the Papal States, thus making Popes to be temporal rulers, beginning with Stephen.

It also initiated the alliance with the Frankish Kingdom that freed the papacy from the influence of Constantinople and gave it a unique character in the Middle Ages.

The climax of this separation was the crowning of Charlemagne as Emperor of the

Romans by Leo III (795-815), in 800.41 In the course of time such temporal power was consolidated with its ascription to divine origin. It is about this scenario in connection with some popes of the eleventh to the fourteenth centuries that Earle narrates:

Both men [Gregory VII and Innocent III] were unwilling to accept the idea that God had given the pope and the temporal ruler coordinate sovereignty over the souls and bodies of people. The pope would not accept the idea that he derived his control over the souls of men and women from the temporal ruler to whom God had given sovereignty, and the ruler would not willingly consent to the idea that he exercised sovereignty over the bodies of men and women by a gracious grant of power from the pope.42

40 P. GRANFIELD, The Papacy in Transition, 5. 41 Cf. P. GRANFIELD, The Papacy in Transition, 5-6. 42 E. CAIRNS, Christianity Through the Centuries: A History of the Christian Church, 202.

Such controversies continued over centuries until the loss of the Papal States to the Italian troops under Garibaldi in 1870. With this, the temporal sovereignty of the Pope came to an end. The Church then returned to her proper responsibility of shepherding souls. Such concern is what Bernard Haring understands as the purpose of Petrine Ministry that has to be devoid of all political attachments. He insists: “The future Pope must renounce his role as a political leader among world rulers, an action that will eliminate the entire system of nunciatures. The witness of the gospel will be stronger when pope and bishops refrain explicitly from political involvements.”43

The First Vatican Council had sought to emphasize the spiritual aspect in the Dogmatic Constitution Pastor aeternus which declared the Church’s stand on the primacy and infallibility of the Pope also treated in Book II of the 1983 Code in c.749, § 1. Barbato rightly observes that in “Vaticanum I (1869/70) the papacy managed to install the infallibility of the pope under certain conditions, just before his sovereignty over the Papal State was to end. This new dogma strengthened not only the papacy’s central command in the Church but also its visibility and popularity.44

In the Second Vatican Council, which inspired the revision of the Pio

Benedictine Code of 1917, this power was shared with the Bishops in collegiality with the Pope. Hence, a second paragraph was added to reflect their participation in

43 B. HARING, “My hope for the Future of the Petrine Ministry”, in G. MacEoin, ed., The Papacy and The People of God, New York- Mary Knoll: Orbis Books 1998, 21. 44 M. BARBATO, “A state, a Diplomat, and a Transnational Church”, in Perspectives, 21/ 2 (2013), 35.

the infallibility of the Magisterium of the Church which they form as a college of

Bishops, in union with the Roman Pontiff.45

Prior to the loss of the Papal States, the papacy had greatly relied on the

French troops who defended them against the attacks of Italian liberalists and nationalistic movements that fought for unification of the Country.

However, due to the outbreak of the Franco-Prussian war in 1870, these troops were withdrawn, giving way to Garibaldi’s troops who invaded Rome and made it the capital of the Kingdom of Italy, under the House of Savoy. The Pope by then, Pius

IX, retired to the Vatican Palace, as a voluntary prisoner, and he and his successors were to remain such until 1929 at the Lateran Treaty that resulted into the creation of the Vatican City State. 46

1.3.6 Creation of the Vatican City State

The creation of Vatican City came from the Lateran Treaty between the

Roman Catholic Church and the nation of Italy in 1929. It was a way of responding to the Roman question in regard to the cessation of the Papal States (756-1870).

Since then, the Vatican is an independent state under the sole jurisdiction of the

Roman Catholic Church. It is the only existent state that has the highest form of expression of both the temporal and spiritual power of the Roman Pontiff.

After the loss of the Papal States to the Italian nationalists in 1870 the government sought a solution through the law of Guarantee’s which the Pope did not agree to. In response to the Roman question, the government signed a Treaty with the Roman Catholic Church. It consisted of among other terms, a setting up of an independent, sovereign state, the Vatican City State, about 44 hectares (100

45 Cf. P. GRANFIELD, The Papacy in Transition, 10-11. 46 Ibid., 11.

acres) in extent but regarded by Pius XI as sufficient to maintain the liberty of the

Church and especially of the Pope, and a Concordat, regulating the affairs of Church and State in Italy.47

Finally there was a financial agreement to indemnify the Church for the spoliations of the past century or so.48 With the change of time and circumstances, the Concordat was up-dated to harmonize with Vatican II and the new Republican

Constitution of Italy, enacted after World War II, which in article 7 recognises the

Lateran Accords of 1929.49 The old Papal States were fairly extensive and were divided into Legations, governed by a Cardinal Legate, and Delegations, governed by a Prelate. The fundamental law of the new state, its Constitution, was approved by Pius XI on June 7, 1929, together with some other legislative norms.50

1.3.7 Administration of the Vatican City State

The Pope is the Sovereign of the Vatican City State and has the plenitude of legislative, executive and judiciary powers. He exercises the legislative and executive powers through The Pontifical Commission for the Vatican City State

(Cardinals), assisted by a Secretary who is a bishop and a lay Special Delegate.51

Given its juridic personality, the Holy See is a subject of international law and engages in diplomatic relations with other states as part and parcel of its administration. However, the Pope does this not as a temporal but as the highest

47 L. BARBARITO, “Vatican City State”, in New Catholic Encyclopaedia, XIV, 555-559. 48 These Lateran Accords were published in AAS, 21(1929), 209-295. 49 Revised Concordat Holy See and Italy, June 3, 1985, in AAS, 77 (1985), 521-578. 50 Cf. L. BARBARITO, “Vatican City State”, in New Catholic Encyclopaedia, XIV, Washington D.C.: University of America Heraty and Associates Inc., 1981, 555-559. 51 L. BARBARITO, “Vatican City State”, in New Catholic Encyclopaedia, XIV, 558.

moral authority acting in the name of the universal Church upon which he has supreme authority, and on behalf of the Vatican City State.52

The Pope exercises his temporal administrative powers through the

Secretariat of State which is the largest of the thirty dicasteries of the Roman Curia and plays the role of coordinating other dicasteries. This central organ of Papal

Diplomacy has three main sections namely; the one that deals with general affairs, that of relations with other states, and that of the relations between the Universal

Church and particular Churches.53 Connected to the above sections, a modern scholar on international relations summed up the influence of the papacy on three levels: the Church; the State and the Diplomat which he explains:

Three levels are of particular importance here: 1) the Church: the Holy See has a power base of one billion faithful almost all over the world with not only a territorial structure of dioceses but also a canonical law and ethical principles which are meant to constitute an order above and on the fundaments of the states as well as on a global public sphere; 2) the State: the Holy See has a territorial base (the Vatican State) but cannot be reduced to it, as the pope owns the Vatican State; 3) the Diplomat: the Holy See is accepted as a sovereign and special peer among states in diplomatic respects.54

The relations between the universal and particular Churches together with the diplomatic relations of the Holy See with other states constitute the major roles of the Papal Legates that the subsequent section deals with.

1.4 Categories and Roles of Pontifical Legates

As representatives of the Roman pontiff, Papal Legates carry out their duties in different capacities depending on their level of delegation and the nature of the

52 G. LAJOLO, Nature and Function of Papal Diplomacy, Singapore: Institute of South East Asia Studies 2005, 3. 53 Cf. JOHN PAUL II, Apostolic Constitution, Pastor Bonus, nn. 39-44, in AAS, 80 (1988), 841- 930. 54 M. BARBATO, “A state, a Diplomat, and a Transnational Church”, in Perspectives Vol. 21, 2 (2013), 28-29.

relation that exists between the Holy See and the nation or organisation to which they are sent.

1.4.1 Nature and Office of Apostolic Legates

The office for apostolic legates is that of representation and pertains to the central organisation of the Church. In line with cc. 362 and 363 apostolic legates are representatives of the Roman pontiff. He alone has the right to appoint them and send them as representatives either to particular Churches or states. Relying on

Pastor Bonus55 and c. 132, Arrieta summarizes what the office of legates entails:

These offices are peripheral offices of the central organisation of the Church; they are included within the organisation of the Roman Curia, under the first section of the secretariat of state [which] deals with everything concerning the ambassadors of states to the Holy See. In general terms, the function of the legate[s] essentially consists in the execution of the instructions given by the supreme authority. The office of legate is a paradigm of the exercise of delegated power, in the various modalities, and, in a particular way, the juridical activity of legate is configured on the basis of habitual faculties.56

1.4.2 Categories of Apostolic Legates

In the umbrella of Pontifical Legates, one can identity various categories of legates. These include nuncio, apostolic delegate, observer and others. As Arrieta observes, each of these categories has different configuration in international and diplomatic relations. He gives four main categories57 as follows:

First are the Nuncios who are ranked in the civil category of ambassadors.

They represent the Roman Pontiff in respective particular Churches to which they are sent and also before civil authorities of those nations. These help the Holy See in creating and maintaining international order, in form of a stable, formal and

55 J. PAUL II, Pastor Bonus, 41§ 1, 56 J. I. ARRIETA, Governance Structures with in the Catholic Church, Chicago: Wilson & Lafleur 2000, 163. 57 J. I. ARRIETA, Governance Structures with in the Catholic Church, Chicago: Wilson & Lafleur 2000, 164.

reciprocal interaction with other states.58 There are two classes one with the right to be dean of the accredited diplomatic corps before the respective nation and one without this right that was formally referred to as pro-nuncio but the term is no longer used since 1993 (RRP 6, § 1a).59

Second are the Apostolic delegates whose representation is only ecclesiastical in character before local Churches without diplomatic legation. The third category comprises delegates in international missions. These can be either cleric or lay and they are referred to as delegates or observers depending on whether or not, the Holy See is a member of the international organisation like UNESCO, and according to whether they participate in a conference with or without the right to vote ( RRP 6, § 1c).

The last category is that of substitute representatives. These act in cases of temporary absence by representing the head of the mission, either before the local

Churches or before the civil authority or international organization entrusted with ad interim affairs.

The presence and duties of apostolic legates delineates the bond of unity between the particular Churches and the Universal Church that is symbolized by the

Bishop in his diocese. Given that the nitty-gritty of how they carry out their duties is beyond the limit of this research, it suffices here to outline a few salient features that pertain to their ecclesiastical and diplomatic roles.

58 Cf. F., SWEENEY, The Vatican and the world peace, London: Colin Smyth 1970, 96. 59 It is a document for regulation of pontifical representation issued by the Secretariat of State in 1994.

1.4.3 Ecclesiastical Roles of Papal Legates

As instruments of exercising juridical control over the entire Church, the legates have eight roles60 as indicated in c. 364: provide information on the condition of particular Churches, communicate the views of the bishops and their

Christians together with their proposals and initiatives to the Holy See. They also interpret acts, documents and information, and instructions from the Holy See.

Again, through promotion and counsel the legates assist the bishops by action and advice, while leaving intact their lawful power (c. 364, 20).

Through communication they work to foster close relations with the

Bishops’ Conference and in terms of inter-ecclesial dialogue. By safeguarding the individual and collective freedom of action of the Church before the state, the legates protect the mission of the Church and the Apostolic See. By executing the instructions of the Apostolic See; one could say that the pontifical representative is the ordinary executor of the mandates of the Holy See.61

1.4.4 Diplomatic Roles of Papal Legates

Diplomatic roles accrue only to legates who contemporaneously exercise a legation before the state (RRP 10). This activity, though always carried out in accord with international law, has a religious character. The representatives have to act in such a way that they foster a proper vision of the relationship between the political community and the Church, and to distinguish clearly between the activities of

Christians, acting individually or collectively in their own name as citizens guided by the dictates of a Christian conscience, and their activity as acting along with their

60 J. I. ARRIETA, Governance Structures with in the Catholic Church, Chicago: Wilson & Lafleur 2000, 167-168. The author here quotes various sections of the canon that mention these roles. 61 Cf. J. I. ARRIETA, Governance Structures with in the Catholic Church, Chicago: Wilson & Lafleur 2000, 168.

pastors in the name of the Church (cf. GS, 76). In the 1983 Code, (c. 365, § 1, 10 and

20) specifies these roles as:

a) Promoting and fostering the relations between the Holy See and the authority of the state with which he is accredited. b) Confronting the ordinary questions regarding relations between Church and State. c) Dealing particularly with the drawing up and putting into force of the concordats, modus vivendi and other similar agreements between the Church and civil authority.

To fulfil all these obligations pontifical legates must maintain close cooperation with the bishops of the respective state keeping them informed about discussions and negotiations. There are also cases where relations with civil authorities are maintained by the episcopate of the state. Papal Legates, who are usually appointed titular archbishops, are collaborators with the Holy Father, especially in continually making more firm and effective the bonds of unity which exist between the Holy See and the particular Churches (c. 364).

1.5 Conclusion This first chapter has treated the relationship between the Catholic Church and State at the universal level. First it presented the historical overview in terms of unity and separation between the two centres of authority namely the Church and civil rulers. Second, a briefly outlook was given on the interdependence between

Roman civil law and Church law which was interrupted by the advent of Germanic tribes that withdrew political authority from the clergy but revived in the late Middle

Ages. Next the chapter presented the spiritual and temporal powers of the Roman pontiff; supreme, full, immediate universal and ordinary. By virtue of episcopal ordination, all bishops receive these powers, but their exercise is dependent on the

Roman Pontiff. By representing the Pope to both particular Churches and civil states to which they are sent, Pope Legates maintain the bond of unity between the

Universal Church and local Churches as well as the diplomatic relations between the

Holy See and the respective nations.

Therefore it is clear that Church-State relations have existed from the very foundation of the human society with both religious and spiritual inclinations as well as social and political aspirations. The controversies that happened and continue to happen are no guarantee for justification of the fundamentalist claims that temporal matters are foreign and contrary to the spiritual nature, mission and destiny of the

People of God. What is necessary is a proper regulation and direction of the temporal realities to the spiritual end of the human person. This necessitates formulation of principles and relevant structures for their effective implementation and application to given circumstances and needs of the people. Hence, as a concern for further investigation, the following chapter explores some principles that should govern these relations together with canonical references to the temporal goods of the Catholic Church.

CHAPTER II

BASIC PRINCIPLES IN CHURCH-STATE RELATIONS

2.0 Introduction

This chapter takes into consideration the principles that govern Church-State relations in temporal affairs as found in the doctrine of the Catholic Church and expressed in her legal codification. First it traces the basis for such relations as the human person in his or her freedom and dignity, created in Imago Dei, in the image and likeness of God (Gen 1:26). This foundation gives rise to all the principles that should govern human relations out of which attention is given to human dignity, separation, cooperation and common good as salient in these relations. The last part presents an exegetical analysis of cc. 22, 1284 and 1290 of the 1983 Code that give precedence to divine law and the supernatural destiny of the human person in administration and alienation of temporal goods.

2.1The Human Person in the Teaching of the Church

Central in all her teachings about the human person, the Church stresses the fact of being created in the image and likeness of God. It is upon this that the human person is endowed with dignity and inalienable rights which, neither the Church nor

any other human power can unduly infringe upon, without violation of the same rights in that very act. Therefore, the role of the state is to protect and promote these rights for all its citizens. The Pontifical Council for Justice and Peace, relying on

Pope John XXIII’s Encyclical Pacem in Terris of 1963, is very clear on this issue when it states:

The ultimate source of human rights is not found in the mere will of the human beings, in the reality of the state, in public powers, but in man himself and God his creator. These rights are universal, inviolable, [and] inalienable. Universal because they are present in all human beings, without exception of time, place or subject. Inviolable in so far as ‘they are inherent in the human person and in human dignity’ and because ‘it would be in vain to proclaim rights, if at the same time everything were not done to ensure the duty of respecting them by all people, everywhere, and for all people.’ Inalienable in so far as ‘no one can legitimately deprive another person, whoever they may be, of these rights, since this would do violence to their nature.62

According to Cardinal Walter Kasper, the foundation of modern human rights and the basis of moral order is the autonomy of the human person that derives from their own dignity. “This dignity consists not in being subordinated to higher purposes, but in having one’s own self-purpose and thus being able to decide self- legitimately on one’s own life and destiny.”63 At this stage, it is inevitable to examine who a person is in the tradition of Canon Law.

2.2 The Concept of Person in Canon Law

Given that it is a person who is the subject of obligations and rights on which principles of relations are based, it is worthwhile to highlight the canonical perspective of personality. This is in terms of both physical and juridical persons, a topic treated in title six of General Norms, a title given to Book I of the 1983

62 Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church, Nairobi: Paulines Publications Africa 2012, n.153. Other references to this book are in-text preceded by the abbreviation, (SDC=Social Doctrine of the Church) followed by the respective number quoted. 63 W. KASPER, “The Theological Foundations of Human Rights”, in The Jurist: Studies in Church Law and Ministry, 50 (1990), 148-166, 152.

Code.64 According to c. 96, by virtue of baptism a physical person is incorporated into the Church and constituted into it as a person with obligations and rights.

Basing on Roman sources, Gauthier identified terminologies used as collegium, universitas, corpus all of which refer to institutions and corporations as juridical persons.65 This terminology was incorporated into the Code of Canon Law66 in what pertains to juridical persons. The canons in this respect are:

c. 113, § 1The Catholic Church and the Apostolic See have a status of a moral person by divine disposition. § 2; in the Church besides physical persons, there are also juridical persons, that is, in canon law subjects of obligations and rights which accord with their nature. c. 114, § 1 Aggregates of persons or of things which are directed to a purpose befitting the Church’s mission, which transcends the purpose of the individuals, are constituted juridical persons either by provision of the law itself or by a special concession given in the form of a decree by the competent authority. § 2; the purposes indicated in § 1c are understood to be those which concern works of piety, of the apostolate or of charity, whether spiritual or temporal. § 3; the competent ecclesiastical authority is not to confer juridical personality except on those aggregates of persons or of things which aim at a genuinely useful purpose and which, all things considered, have the means which are foreseen to be sufficient to achieve the purpose in view.

Such aggregates would in a broader sense include Catholic Church-founded and administered institutions like schools and hospitals that are of interest in this work. They also include those who by right can, acquire, administer and alienate property intended for the respective purposes of the foundations among these are dioceses and religious institutions.

64 The concept of Physical persons is presented in cc. 96 to 112 while that of juridical persons is in cc. 113 to 123. 65 Cf. A. GAUTHIER, “ Juridical Persons”, in Studia Canonica 25 ( 1991), 77-92. 66 CLSANZ, CIC cc.113 and 114

Jordan Hite, briefly states three basic characteristics and constitutive elements of juridic personality.67 He draws the characteristics from cc. 113, § 2 and

114, § 1 as follows;

1. It is the subject of its canonical rights and obligations.

2. It is an aggregate of persons or things directed to the church’s mission.

3. It is created by law itself or by a decree of the competent authority.

In their constitutive elements, juridic persons can be either collegial or non- collegial. They are collegial when made up physical persons such as a religious institute with legal personality separate from its members, and they are non-collegial when made up of property dedicated to works of piety, apostolate or charity. The administrators of such persons have to act in accord with Canon Law and the statutes of the juridic persons in question. Juridic persons can also be distinguished as public or private. They are public if meant to act in the name of the Church, and private if they are to act only in their own name.68

2.3 Principles of Church – State Relations

With due respect to all historical and modern approaches to matters pertaining to the human person which according to the hypotheses of this research, bring both church and state together, one can rightly concur with Coughlin who identifies three principles on canonical grounds. His conviction is that the Church is not only limited to internal matters but also extends her jurisdiction in the ‘ius publicum ecclesiasticum’ which he translates as the public law of the church.

The connection between the two arises from the desire of the human person to be both a faithful member of the religious community and a loyal citizen of the

67 J. HITE, “Church Law on Property and Contracts”, in The Jurist :Studies in Church Law and Ministry, 44 (1984), 118-119. 68 Cf. J. HITE, “Church Law on Property and Contracts”, 118.

state. Thus he states: “In light of canon law’s tradition […] three broad principles underpin the ius publicum ecclesiasticum about the proper relation between church and state. These principles are: (1) the principle of separation; (2) the principle of cooperation; and (3) the principle of human dignity.”69 In addition to these principles, there is that of the common good that incorporates all people for the good of the individual person and the society at large.

On a similar footing, Minnerath proposes five main ways on how state and church should interact.70 First, he analyses situations when states and churches largely differ in appreciating their relationships. Second, he mentions instances when church and state converge towards common principles. In the third section he elaborates on why church and state need to interact. He then deals with how they interact, and finally, how they should interact basing on given principles and legislations.

2.3.1 The Principle of Human Dignity in the Spirit of Vatican II Council

The Second Vatican Council (1962-1965) highlighted the significance of human dignity and the respect due to each person in his or her rights and obligations, whether as an individual or as a group in association. At the convocation of the

Council, Pope John XXIII, now saint, was very much concerned with reading the signs of the time and one of them was the demand for human rights. With the

Declaration on Religious Freedom, we can reiterate the observation of Orsy that;

“the greatest value in this creation is, must be, the human person. The noble

69 J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry, 73 (2013) 539-554, 539. 70 ROLAND MINNERATH, “How should State and Church Interact?”, in The Jurist 70 (2010) 473- 486.

aspiration of the people and the holy aspiration of the Council converge to recognise and honour human persons for what they are: authentic ‘replicas’ of God.”71

The Declaration on Religious Liberty (Dignitatis Humanae), and the Pastoral

Constitution on the Church in the modern world (Gaudium et Spes), are of great relevance in regard to the honour that is due to the human person. According to

Gaudium et Spes, human dignity is the basis of all other human rights (G. S 27).

With the same emphasis,(D. H 9) States: “The declaration of this Vatican Council on man’s right to religious freedom is based on the dignity of the human person, the demands of which have become more fully known to human reason through centuries of experience.”72

In Coughlin’s view, such awareness and positive development of the

Council’s teaching on the principle of human dignity and religious freedom, arose from the prevalence of ‘rights language’ by the time of its convocation. It is insinuated in the First Amendment of the United States Constitutional law and the

United Nations’ Declaration of Human Rights. The other source is the ancient doctrine of the Church on human dignity.73

This doctrine, in the analysis of Cardinal Walter Kasper, is based on

Scripture and tradition. So then, “Its-[referring to the idea of human rights]-ultimate roots lie in the biblical affirmation of men and women being made in the image and

71 L. ORSY, “The Divine Dignity of the Human Persons in Dignitatis Humanae”, in Theological Studies, 75(2014), 8-22, 22. 72 “Dignitatis Humanae, On Religious Liberty”, in FLANNERY, A., ed., Vatican Council II: The conciliar and Post - Conciliar Documents, New Delhi- Mumbai: Paulines Publications 1975. 73 Cf. J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry 73(2013), 549-50.

likeness of God (Gen 1:26) […] granted to everybody irrespective of his or her belonging to a race, a people, a lineage, or a culture.74

For Orsy, Dignitatis Humanae also has a social dimension which can only be realised when the teaching of the council is understood as a comprehensive vision of the ideal relationship between the sacred and the secular authority.75 This view is in line with the intentions of the Council Fathers whose concern was the political and social implications of religious freedom. Coughlin approached the right to religious freedom in three aspects which we adopt here namely; its sources, meaning and protection in positive law.76

2.3.1.1 Sources of doctrine on Human Dignity

The sources of the doctrine on human dignity are both theological and natural. Theologically, human dignity is drawn from the creation of the human being in the image and likeness of God imago Dei. “The fundamental dignity of the human person is enhanced by the Christological perspective that in the incarnation humanity became one with divinity in the person of Jesus […] the anthropological understanding of the human person as endowed with reason supports the proposition that the human person possess an inviolable dignity.”77 In this line of thought c. 208 stipulates the equality of dignity and action among Christ’s faithful by virtue of baptism.

Such dignity is made perfect in the life and ministry of Jesus. He is the image of the invisible God and through his death and resurrection, restored the image that

74 W. KASPER, “The Theological Foundations of Human Rights”, 154. 75 Cf. L. ORSY, “The Divine Dignity of Human Persons in Dignitatis Humanae”, in Theological Studies, 75/1(2014), 8-22, 9. 76 J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry 73(2013), 549. 77 J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, 549.

humanity had lost through sin. Relying on the second and third councils of

Constantinople, the Second Vatican Council affirmed the unity of Christ with humanity and its soteriological efficacy in saying: “Human nature by the very fact that it was assumed, not absorbed, in him, has been raised in us also to a dignity beyond compare. For, by his incarnation, he, the son of God, has in a certain way united himself with each man. He worked with human hands, he thought with a human mind. He acted with a human will and with a human heart he loved” (GS,

22).

2.3.1.2 Meaning of Religious Freedom

As regards the meaning, religious freedom has both a positive and negative connotation. Its positive meaning is freedom for, and in it, individuals and associations exercise their faith either privately or in public. This right does not only protect individuals but also churches and other religious associations. Hence

Coughlin strongly holds: “The right of a church, community or association to religious freedom is just as important as the right of an individual.”78 In this line of thought, c. 214 highlights the right to worship God according to one’s rite and spiritual tradition in accord with the teaching of the Church.

Negatively, the right to religious freedom means that no one is to be coerced in any manner contrary to his or her belief. This is in respect to each person’s conscience. Hence: “The dignity of the human person obliges that neither the state nor the church acts to force a person to accept or reject religious belief and practice.”79

78 J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry 73(2013), 550-51. 79 Ibid., 551.

Even though in his or her dignity as created in the image of God, the human person is the centre and summit of all things on earth, Gaudium et Spes highlights the need for proper orientation and guidance in light of divine revelation. This is in a bid to strike a balance between the extreme challenges and difficulties posed in the human tendencies towards absolute dominion or despair in face of disappointment.

Hence: “Enlightened by divine revelation she [the Church] can offer a solution to them by which the true state of man may be outlined, his weakness explained, in such a way that at the same time his dignity and his vocation may be perceived in their true light” (GS, 12).

Delving deeper into the interconnection between freedom and truth, following the initiative of Archbishop Karol Wojtyla who later took the name of

John Paul II as Pope, the Council devised a hermeneutical principle for interpretation of Dignitatis Humanae. Here the argument is that: “Truth can only be accepted in freedom [and] freedom is based on the truth by which it is presupposed.”

Therefore there has to be “a synthesis between the subjective aspect, the safeguarding of freedom, and the objective aspect, the recognition of truth.”80

By implication, one can easily identify the need for proper and holistic education of the human person which the Catholic Church advocates and promotes in all learning processes and institutions under her pastoral care and charity to the human society. To this end, in view of the eternal destiny of the human person and for promotion of the common good, c. 795 envisages formation in physical, moral and intellectual talents for responsibility and proper use of freedom.

80 W. KASPER, “The Theological Foundations of Human Rights”, 155-156.

As a noble duty, human formation calls for the cooperation of individuals, groups and social institutions in order to elicit its purpose of raising a responsible person endowed with human and Christian values. In the same vein, the social teaching of the Church calls for integration of principles and values of Justice Truth and Freedom (cf. S D C 197-200).

In this perspective then, it becomes crystal clear that law is neither foreign to the human person nor is it contrary to human dignity. Right from the person’s inner most being, in his or her conscience, a place of encounter with God and guardian of integrity, the law of God is naturally inscribed as the ultimate judge of what a person does (G S, 16). Therefore we completely agree with Orsy when he says: “The task of the Conscience is not to create infallible knowledge or unfailing wisdom but to keep a person faithful to his or her honestly acquired conviction.”81

Again, appropriate convictions can only be acquired through proper education. Towards this education, the whole community; religious and social institutions inclusive, has to contribute without in any way, derogating from the duty to respect the dictates of one’s conscience. Hence: “At the same time the community has the right- and may have the duty- to examine critically by ordinary and universal criteria the soundness of a position. Further, the community has the right to defend and support the value of unity.”82

2.3.1.3 Protection of Religious Freedom in Civil law

One of the three aspects and implications of religious freedom is that it has to be protected in civil or constitutional legislation. Promotion and protection of human

81 L. ORSY, “The Divine Dignity of Human Persons in Dignitatis Humanae”, in Theological Studies, 75/1(2014), 16. 82 L. ORSY, “The Divine Dignity of Human Persons in Dignitatis Humanae”, in Theological Studies, 75/1(2014), 16.

rights is one of the three specific duties that Minnerath allots to the state as a juridical framework of a given society. Other duties include care for the common good of all citizens and for the harmonious cooperation of all religious or philosophical families in its jurisdiction.83

The emphasis on religious freedom arises from its theological and natural sources which ascertain that this right is higher than mere positive law. The

Declaration on Religious freedom put great emphasis on the need for protection if such freedom has to be realised, both in fact and in law, for the Church and all the faithful to fulfil their divine mission. Hence: “A harmony exists […] between the freedom of the Church and that religious freedom which must be recognised as the right of all men and all communities and must be sanctioned by constitutional law”

(DH, 13).

It is independent of custom laws but has to be protected and exercised within due limits in the interest of public order about which Dignitatis Humanae Asserts:

Therefore provided the just requirements of public order are not violated, these groups have a right to immunity so that they may organise themselves according to their principles. They must be allowed to honour the supreme Godhead with public worship, help their members practice their religion and, strengthen them with religious instruction, and promote institutions in which members may work together to organise their own lives according to their religious principles. Religious communities also have the right not to be hindered by legislation or administrative action on the part of the civil authority in the selection, training, appointment and transfer of their own ministers, in communicating with religious authorities and communities in other parts of the world, in erecting buildings for religious purposes, and in acquisition and use of the property they need (DH, 4).

This is why, in respect to the true dignity of the human person that requires harmonious living with others, even the canonical stipulations highlight obligations

83 R. MINNERATH, “How should State and Church Interact?”, 479.

and rights of Christ’s faithful in the understanding that no rights are absolute.84 It is also important to note that rights are not accrued to the human person by virtue of religion but rather rooted in their innate dignity as human. Thus, there is need for clarity on the distinction between acquired and innate or natural human rights.

Following the prescription of c. 4 of the 1983 Code, an innate right pertains to a physical person by nature; and by extension, to a moral and juridical person, without any added quality, skill or expertise on the party to whom the right is due.

For instance, we can take the right to life for a physical person and the right of the

Church as a moral person to pursue her divine purpose of the salvation of souls.

The context of the canon is in respect to acquired rights as opposed to innate rights, for which the commentator highlights various ways of acquisition. Such ways include the civil law (c. 22), administrative acts (cc. 48, 59, 76, 85), Judicial sentences (c. 1684), contracts (cc. 192, 1290), prescription (c. 197), election to office

(c. 147, 178), vows and oaths (cc. 1196, 1203).85

2.3.2 The Principle of Separation

Separation as a principle is traced right from the acceptance of Christianity in the Roman Empire. It was used for the distinction between what pertained to the duty of the state referred to as saeculum and what pertained to the Church in regard to the supernatural destiny of the human person which was called religio.86 It is, as

Minnerath puts it, that the relation between the Church and State calls for “a respect

84 Cf. J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry 73(2013), 551- 553. 85 J. M. HUELS, “General Norms Book I: Introductory Canons”, In BEAL, J.P, J.A. CORIDEN, T.J. GREEN (eds.), New Commentary on the Code of Canon Law, Bangalore: Canon Law Society of America, Theological Publications 2010, 51. ( = CLSA Comm2 ) This abbreviation is used in subsequent references to this commentary. 86 J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry 73(2013), 540.

for the basic principles of individual and cooperate religious freedom and the principle of church autonomy.” It is not in the strict sense of “hostile ‘separation’ between Church and State [but rather], of ‘distinction’ between both domains.”87

Affirming the above assertion, Coughlin is of the view that, despite the tension expected in historical development, the separation principle created harmony between church and state which was essential to Western civilization. As on one hand he attributes controversy and distinction between canon and civil law to the eleventh century renaissance in study of the discipline, he on the other, acknowledges the unity of knowledge that was reflected in the medieval universities.

Quoting Brian in his Religion and Rights, and Thomas Aquinas’ Summa

Theologicae, he further notes a significant distinction in terms of competences when he contends:

While they developed the universal jurisdiction of the papacy, they set the limits of subject matter jurisdiction so that papal competence did not infringe on what rightly belonged to the competence of the state and vice versa. The medieval theory of concordance of positive and law with natural and divine law also recognised determinationes, which respected the autonomous prudential judgment of the legislator in enacting universal principles of the higher law into the concrete particulars of the positive secular law […] the separation principle developed from the understanding that the human person is not merely a material but also a spiritual being with supernatural destiny. 88

Just as the contemplation of absolute separation failed in the context of the

20th century United States Constitutional law, so also the same cannot apply to the modern pluralistic society. Therefore various acceptable approaches developed in respect to the application of the principle of separation in regard to church–state

87 R. MINNERATH, “How Should Church and State Interact”, 478. 88 Cf. J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry 73(2013), 541.

relations in the modern democratic and pluralistic societies. These, as Minnerath observes, range from maintaining an established religion, to accommodation of religion neutrality toward religion with some absolutist tendencies in other states.89

He later postulates four existing legal configurations in respect to “Established churches; legally protected churches; Separation between Church and State with mutual cooperation; and separation without legal recognition or cooperation between

Church and State.”90

Succinctly put, the principle of separation remains important for the proper distinction of competencies and sharing of responsibilities between Church and State for the common good of the society at large. These are some of the inevitable benefits in view of which Coughlin rightly states: “No matter what arrangement its constitutional law might require, the modern liberal democracy has incorporated the ancient wisdom of the ius publicum eccleisaticum about the benefits of the separation of church and state.”91

In the same vein, Orsy argues in favour of separation when it comes to freedom in religious matters within human society. He associates it with the requirements of Dignitatis Humanae for realising internal freedom.

In his view: “The document demands external ‘space’ for the profession of religious beliefs and for worship, individually or in community. At the same time, it recognises a limit to this demand: freedom for religion must not interfere or diminish secular authority within its own domain, that of caring for the temporal

89 Cf. R. MINNERATH, “How Should Church and State Interact”, 473. 90 Ibid., 481. 91 J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry 73(2013), 542-543.

well-being of the citizens.”92 For some, separation is a central principle as it reflects the independence and autonomy of Church and State in their relations and also determines their cooperation.93 What the principle of cooperation entails is the next point of concern.

2.3.3 The Principle of Cooperation

The basis of the principle of cooperation is that the state cannot achieve everything for its citizens without the intervention of other agencies especially those that are closer to the life of the people like Faith-Based organisations (FBOs). The

Church and state as major contributors to the formation of social culture, complement each other in this role. This is the reason as to why “the principle of cooperation between church and state is adaptable to both liberal political theory and contemporary theology.”94

Contrary to the modern tendencies towards private good and self-interest in terms of progress, the Church respects altruistic and communalistic values for the good of the human person both as an individual and as a society. Here, the Catholic tradition views “the human person as an essentially social being whose fulfilment depends on opportunities for participation, solidarity and membership in communal endeavours. It sees society not in terms of anonymous and impersonal interactions, but in terms of personalistic rationality and gratuitousness.”95 To this end then, churches and other forms of religious associations remain one of the fundamental realities in their social contribution:

92 L. ORSY, “The Divine Dignity of Human Persons in Dignitatis Humanae”, in Theological Studies, 75/1(2014), 17. 93 R. MINNERATH, “How Should Church and State Interact”, 478. 94 J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry 73(2013), 543. 95 Cf. Ibid., 544.

In serving as intermediate structures, religious associations afford opportunities for participation, solidarity and membership rooted in an understanding of the human good in which care for the needs of others is an essential. The government depends on religious associations for the administration of vast array of necessary social services. Cooperation between the government and religious associations reflects the principle of subsidiarity according to which the government defers to smaller and more local social groups in order to carry out certain tasks beneficial to social life. Traditionally, churches have provided health care for the infirm, offered education from grammar school to university level, fed the hungry, sheltered the homeless, protected immigrants, advocated for rights of the powerless, and supplied material aid and spiritual succour to all those in need. The government’s cooperation with, deference to, and assistance of, religious associations is based on the understanding that recognises the limits of scope of government activity.96

Cooperation as a principle calls for trust between church and state. They are not to operate under the “hermeneutic of mutual suspicion, but rather, that the two formators of culture might befriend each other. In this way, the Church and state sustain collaborative endeavours to advance certain ends. Some states grant tax- exemption status to religious organisations as not-for-profits.”97 Hence: “The modern secular state tends to view churches and other religious associations as not - for - profit entities whose corporate structures are created and function under the auspices of the state law.”98 This is the status of the hospitals under the Uganda

Catholic Medical Bureau as will be treated in the third chapter.

It is worth noting that while dealing with states, the Church must not forget her prophetic role. Against this background, c.747, § 2 states: “The Catholic Church has the right always and everywhere to proclaim moral principles, even in respect of the social order, and to make judgments about any human matter in so far as this is required by fundamental human rights or the salvation of souls.”

96 J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry 73(2013), 544-546. 97 J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry 73(2013), 546. 98 Ibid., 545-546.

Therefore, in summing up the suitable mode of interaction between church and state in our pluralistic world, it is tenable to concur with Coughlin that the above mentioned principles are instrumental. There is a need for a healthy separation in regard to the distinct competencies of the church and state.

In other words, it is a prudent balance between the roles of the secular and the sacred authorities about which Orsy says: “Both are entitled to proportionate freedom of action; each has a duty to abstain from intruding into the other’s field of operation.”99 This separation can only be fruitful in fostering the joint cooperation between the state and the church that complement each other in their respective capacities and competencies. With such cooperation and collaboration, the dignity of the human person is enhanced and enriched.

As the church capitalises on the contemplative over the political she becomes a more effective steward of God’s creation focusing everything to the ultimate spiritual end of the human person. This sense of direction is guaranteed by her autonomy to define creed and doctrine which autonomy is entailed and safeguarded in the right to religious freedom and expression. Hence it is true to argue that:

Religious traditions often propagate an understanding of the human person and community which compliments the cultural contribution of the liberal state. The liberal state is intended to be neither omni-present nor omni- competent. The fact remains that churches and religious organisations often are superior providers of education, health care and other services than the bureaucratic state. When the state enables churches and other religious associations, it abets the interests of individuals, communities, and the state itself.100

99 L. ORSY, “The Divine Dignity of Human Persons in Dignitatis Humanae”, in Theological Studies, 75/1(2014), 14. 100 J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry 73(2013), 552-553.

2.3.4 The Principle of the Common Good

The principle of the common good brings together and integrates other principles as a duty for both the church and state to the human being and the society.

In the doctrine of the Catholic Church, “it stems from the dignity, unity and equality of all people, and it is defined as, the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfilment more fully and more easily” (S D C, 164).101

There are basically three aspects of the common good that the state must take into consideration namely: defining of public order; defending public morality and public health; and ensuring that there is no conflict between the rights of one person or group and those of other persons or groups. 102 The following section turns to canonical references to civil law. In this context, the focus will be on the interdependence between canon law and civil law as reflected in the Code of Canon law.

2.4 Canonical analysis in the context of Divine, Ecclesial and Civil laws

The 1983 Code has various references to the required cooperation between the church and state especially in matters of church property that include land and established institutions on it like schools and hospitals. Right from the first canons, the Latin Code acknowledges and endorses as binding the agreements that the

Church enters into with various states and international organisations. This is an explicit way of sanctioning the relationships that exist between church and state.

In this respect c. 3 clearly states: “The canons of the Code do not abrogate, nor do they derogate from, agreements entered into by the Apostolic See with

101 Cf. Second Vatican Council Gaudium et Spes 26, AAS 58 (1966), 1046; and CCC. 1905- 1912. 102 Cf. ROLAND MINNERATH, “How should State and Church Interact?”, 479.

nations or other civil entities. For this reason, these agreements continue in force as hitherto, notwithstanding contrary provisions of this Code.”103

Commenting on this canon, in respect to the temporal and spiritual power of the pope, Huels insists: “Agreements between the Church and the State are not treaties between nations (between a civil government and the Vatican State), but between a nation and a competent authority of the Roman Catholic Church.” In the following paragraph he continues: “The principle that agreements must be observed

[pacta sunt servanda] can be extended to include, not only agreements between

Church and State, but all agreements and contracts entered into between any physical or juridical persons in the Church among themselves or with partners outside the Church.” 104

It is worth noting that even if Canon Law governs ecclesiastical matters of the Catholic Church, it does not regulate all legal aspects of relations within the church itself and in the civil society. Because of this, recourse is always made to civil law in terms of canonization of civil law as prescribed in c. 22. As many canon lawyers like Caparros observe, this way of proceeding is applicable in the event of conflict of laws where reference to the relevant legal systems is inevitable. Such cases would include among others; matters of family law, contracts, inheritances and wills, property, and all sorts of transaction and arbitration judgments.105

In addition, there are many instances in the Code where reference is made to secular law. For instance, canons 98, § 2; 105; 110; 197; 1059; 1062; 1105; 1274;

98 Codex iuris canononici, auctoritate Ioannis Pauli PP. II Promulgatus, fontium annotatione et indice analytico-alphabetico auctus, Libreria editrice Vaticana, 1983, 1997, New English Trans. Code of Canon Law, Canon Law Society of Australia and New Zealand ( = CLSANZ, here after referred to as CIC ). The subsequent references to the Code are taken from this translation. 104 CLSA Comm2 CIC c. 3. 105 Cf. E. CAPARROS, “Criminal Law Protection of the Human Rights”, 207- 208.

1284; 1286; 1288; 1290; 1296; 1479; 1500; 1689; 1692; 1714; 1716. Such matters refer, among others, to norms regarding the civil effects of marriage, the listing of names of adopting parents, suits for possession, and ownership of property.106 Some of the questions that would have to be referred to the secular law on temporal goods concern:

The capacity of persons to contract; proper matter for contracts; consent and formalities required; cause and effect of contracts; the manner of fulfilling an assumed obligation; payment of debts and obligations; and other relevant details. It also involves the effect on the contractants, that is, the parties involved; assignees, third parties, anything related to creation, modification and termination of obligations. In the last case, the canonical norm prevails over civil norm while for the extinction of obligations the prescriptions of c. 1270 are binding. In the 1983

Code, c. 1290 that treats contracts and alienation in general states:

Without prejudice to c. 1547, whatever the local civil law decrees about contracts, both generally and specifically, and about the voiding of contracts, is to be observed regarding matters which are subject to the power of governance of the Church, and with the same effect, provided that the civil law is not contrary to divine law, and that canon law does not provide otherwise.

Its parallel in the Eastern Code (CCEO) is c. 1034 which states:

What the civil law of the territory in which a contract is entered establishes for contracts either in general or in particular and their disposition is to be observed with the same effects in canon law in so far as the matter is subject to the power of the Church.

Canon 1290 is the opening canon of title three of Book V which deals with the temporal goods of the Church. The heading of this title is contracts and especially alienation. It is a generic canon as it refers to all transactions affecting the patrimonial status of a public juridical person without reference to particular types of

106 Cf. ibid., 208 - 209.

contracts. Simply put, the above mentioned canon "canonizes" the existing secular law on contracts, unless it is contrary to divine law or to the prescriptions of canon law. In this way, the security of a number of transactions is guaranteed. It is thus necessary, when it is a question of entering into contracts, to have recourse to the services of a person who is well versed in the applicable secular law.107

Thus c. 1290 is a practical application of c. 22 which offers a similar principle: "When the law of the Church remits some issue to the civil law, the latter is to be observed with the same effects in canon law, in so far as it is not contrary to divine law, and provided it is not otherwise stipulated in canon law." For a better understanding, one has to keep in mind the text, context and mind of the legislator as given in c. 17 in respect to appropriate interpretation of ecclesiastical laws.108

Therefore, the interpretation and application of civil law as entailed in c. 22, is to be in a form of receptive remittal. In this case, according to Mantecon, the received norm is incorporated into the canonical system proper without ceasing to be civil. It is thus interpreted and applied in accordance with the original system of the law.109 In simple terms, the canonised law has the same binding force as accorded to it in the civil system.

Besides, c. 1290 begins with a reference to c. 1547. There was a certain amount of confusion regarding this reference to c. 1547. In the 1917 Code, c. 1529 did not have a parallel reference. It was originally thought that the reference should have been to the right of ownership. However, the Commission wanted to allow for

107 Cf. JOAQUIN MANTECON, “ Contracts especially Alienation”, in MARZOA, A., J.MIRAS, R. RODRIGUEZ-OCEAN ed, and E. CAPARROS ( gen. ed. of English Translation), Exegetical Commentary on the New Code of Canon Law: Annotated legislative texts, IV/I, Montreal: Wilson & Lafleur 2004, 127-129. 108 JAVIER OTADUY, “Commentary on General Norms: Ecclesiastical laws”, in Exegetical Comm, I, 325-327. 109 Ibid., 378.

proof by witnesses, so that it would be clearly seen that such a form of proof can exist in contractual matters, even though the existing secular law might not recognize it in certain cases. An example here could be any document to the contrary of a given will.110

With a particular concern for education, c. 797 is significant. Concerning religious schools it states: “Parents must possess a true freedom in choosing schools; therefore the Christian faithful must be concerned that the civil law recognises this freedom for parents and even supports it with subsidies, distributive justice is to be observed.”111

2.5 Conclusion

This chapter has elaborated on some of the fundamental principles underlying Church-State relations namely; Separation, Cooperation and Human

Dignity.112 Together with the principle of the common good, these principles are interdependent and complimentary just as the relation between Church and State should be. Here, all stakeholders join their distinct capacities and competencies for delivering services to the human person in the interest of the common good. The chapter has also shown some canonical references to interactions between Church and Civil law in the use of temporal goods while giving priority of place to divine law and the mission of the Church centred on the spiritual destiny of the human person. The underpinning attitude for the Church is that of stewardship for pastoral care and charity to the human society. This is the spirit behind the Church’s founding of institutions which are treated in the following chapter.

110 Cf. J. MANTECON, “Contracts especially Alienation”, in Exegetical Comm, IV/1,127-129. 111 J. COUGHLIN, “Separation, Cooperation, and Human Dignity in Church – State Relations”, in The Jurist: Studies in Church Law and Ministry 73(2013), 547. 112 J.COUGHLIN, “Separation, Cooperation, and Human Dignity in Church-State Relations”, in The Jurist 73(2013) 539-554.

CHAPTER III

ADMINISTRATIVE PERSPECTIVE OF CHURCH-STATE RELATIONS IN UGANDA IN CHURCH-FOUNDED INSTITUTIONS

3.0 Introduction

This chapter is concerned with the prescription of the Catholic Church in regard to institutions under her care in view of maintaining Catholic identity and facilitating pastoral care of souls. Consideration is here given to the guidelines of the

Church and the stipulations of the State with respect to Education and Health care apostolate in Masaka Diocese.

References in regard to education will be based on the Education Act of

2008 and the 2009 Masaka Diocese Education Policy and other Church Documents like Gravissimum Educationis from the Second Vatican Council. This document

(GE) laid a foundation for the canons on education in Book III of the 1983 Code dedicated to the Teaching Office of the Church. Hence, together with other supplementary legislative constitutions, that is, Sapientia Christiana (1979) and Ex

Corde Ecclesiae (1990), GE is significant in the interpretation of these canons.

Concerning administration of Health facilities, the main references will be the

“National Policy on Public Private Partnership in Health” from the Ministry of

Health and the program of Uganda Catholic Medical Bureau (UCMB).

3.1 The Catholic Church in Church-State Relations in Uganda

Concerning the Catholic Church in Uganda, the relation with the state can best be described in terms of contracts113 and cooperation in delivering services especially to the rural areas among the most marginalised people. Such interaction is more vivid in administration of institutions like schools and hospitals.

Generally speaking, churches have been very instrumental in the development of the country. This is especially evident in terms of rendering basic services to rural areas for which the Catholic Church is highly credited. Such enormous progress has been facilitated by the favourable environment created, and the cooperation that has existed between the central government and the respective churches, which rapport arises from their juridical status according to the

Constitution of the Republic of Uganda. Before any further advancement, it is worthwhile to establish the legal status of the Church in Uganda upon which all her rights of ownership and administration of goods are based.

3.1.1 Juridical status of Churches in Uganda

The Catholic Church is one among many others that enjoy some form of autonomy as per the Trustees Incorporation Act in the Constitution of the Republic of Uganda. According to the analysis of the US Annual Report on International

Religious Freedom, the autonomy guaranteed is in terms of organisation, fiscal

113 Cf. Ministry of Health, National Policy on Public Private Partnership in Health, 2011, vii. In the glossary, this policy understands a contract as “A legally binding agreement stating clearly: the responsibilities of the parties to the contract, the range of services to be provided, the performance standards to be achieved, procedures for performance monitoring, terms of payment and penalties for non-performance.” This rightly fits the Catholic understanding of the same as given in c.1290 of the 1983 Code.

benefits and full operation freedom. The 2009 Report quoting articles 7 and 29 and other sections of the Constitution summed up the juridical situation in the following terms:

Article 7 of the 1995 Constitution affirms that Uganda does not recognise any religion as a state religion and Article 29 guarantees all citizens full religious freedom, both for individuals and associations. Furthermore, the law forbids the formation of political parties based on religion or on ethnicity. Some Christian and Muslim festivals are recognised as national holidays. To obtain legal status, religious communities must register. The larger Churches, such as the Catholic Church, the Orthodox Church, the Anglican Church and the Uganda Muslim Supreme Council, benefit from the legislation established in the Trustees Incorporation Act, which guarantees organisational autonomy, fiscal benefits and full operational freedom. Other groups, such as the Evangelical and Pentecostal communities, are on the same level as NGOs and although they enjoy the same operational conditions as the aforementioned Churches, they are subject to an annual renewal of their registration and a check on the donations they receive. Religious instruction in state schools is optional. There are many private Christian schools and Islamic madrassas in the country.114 3.1.2 Contribution of the Church and other Faith-Based-Organisations

The most significant contributions are in the sectors of education and health care. Many schools and hospitals, even up-to-date, are under the administration of their founding religious bodies while some have been taken over, or in the process of being taken over by the government. Other institutions of the kind are government - aided in terms of partnership between the government and their respective founding bodies. In all her activities as reflected in education and health care facilities, the Church seeks the integral development of the human person which is central to her teaching. Pope Paul VI stressed this point by saying:

True to the teaching and example of her divine Founder, who cited the preaching of the Gospel to the poor as a sign of His mission, the Church has never failed to foster the human progress of the nations to which she brings faith in Christ. Besides erecting sacred edifices, her missionaries

114 U.S. Department of State - 2009 Annual Report on International Religious Freedom http://www.bbc.co.uk/ accessed on 27/01/2014.

have also promoted construction of hospitals, sanatoriums, schools and universities.115

Proper administration is therefore required for flourishing of any institution.

To this end, the following section briefly treats the canonical prescriptions on administration.

3.2 The Concept of Administration in Canon Law

Canonically, administration is a juridical act subject to prescriptions of title seven of Book I as part of the General Norms.116 One of the applications of these norms is the administration of Ecclesiastical goods among which are institutions such as schools and hospitals to which the attention of this work is focused.

In his introductory remarks on Book V, Kennedy clarifies on the importance and purpose of goods in fulfilling the spiritual mission of the Church. He cites two contrary positions that arise from the scriptures; the fundamentalist interpretation and the magisterial teaching reflected in the Documents of the Second Vatican

Council. The fundamentalists, basing on passages like (Mt 10:9-10) which prohibited the disciples from carrying any material things on their way, consider property as contrary to mission of the Church while the Church Magisterium, in a broader perspective of Christian life in (Acts 2:44-45; 4:34-35), considers property as necessary for mission with guidelines for proper use.117

Therefore, to achieve this end, “the laws of the Church [are] designed to guard against improper acquisition, excessive accumulation, and imprudent

115 PAUL VI, Populorum Progressio: Encyclical Letter on Development of Peoples,1967, n.12. 116 The Concept of Juridical acts is treated in cc. 124 to 128 and the administration of Temporal Goods is in cc 1273 to 1289 of Book V that deals with the Temporal Goods of the Church. It is worth noting too that there are no specific canons in the Code that refer to hospitals since there personality was always attached to their founding bodies like Religious Congregations or other competent Public or Private Juridic Persons. 117 Cf. R.T. KENNEDY, Introduction to Book V, in CLSA Comm2, 1451-52.

administration, and to ensure the protection, faithful use, and wise disposition of the things of this world which have been placed at the service of a kingdom that is not of this world.”118

3.2.1 Administration of Ecclesiastical Temporal Goods

The concept of administration is treated in the second title of Book V in cc.

1273-1289. This section presents administrators ranging from the Roman Pontiff as the supreme administrator at the universal level (c. 1273), and at the particular level, the diocesan bishops and other ordinaries (cc. 1274-1278), and other administrators who can be either clerics or lay members of Christ’s faithful (cc. 1279-1289). The same section treats the duties of administrators and acts of administration which are both ordinary and extraordinary as per the prescriptions of the respective particular laws.119 The recommendations in c. 1284, § 2 are in a way, to be applied as guidelines for proper distinction between the purposes and methods of ordinary and extraordinary acts of administration.120

Particular laws have greater significance for practical application when used by superiors and other administrators of religious congregations of apostolic right and societies of apostolic life. However, in addition to the stipulations of their particular laws (cc. 635-640), these applications also have to be within the limits of the universal law. By law, administrators are expected to fulfil their duties, as stewards, good householders in God’s house, that is, the Church.

118 Ibid., 1452. 119 Cf. J. HITE, “Church Law on Property and Contracts”, in The Jurist Studies in Church Law and Ministry, 44 (1984), 120-125. 120 Cf. Z. COMBALIA, Commentary on Administration of Temporal Goods, in Exegetical Comm IV/1, 112-114.

3.2.2 Duties of Administrators

Canons 1282 to 1284 are dedicated to the specific duties of administrators.

The obligations considered range from the time before assuming office, during their term of service and at handing over when their mandate ceases. These duties are carried out in the name of the Church, Pursuant to a mission received from a competent ecclesiastical authority. The interest of the research will capitalise on c.

1284, §§ 1and 2, 10, 20 and 30 that enumerate three of the nine duties that are more in conformity with the topic under discussion. This canon states:

§ 1 All administrators are to perform their duties with the diligence of a good householder. § 2 Therefore they must: 1° be vigilant that no goods placed in their care in any way perish or suffer damage; to this end they are, to the extent necessary, to arrange insurance contracts; 2° ensure that the ownership of ecclesiastical goods is safeguarded in ways which are valid in civil law; 3° observe the provisions of canon and civil law, and the stipulations of the founder or donor or lawful authority; they are to take special care that damage will not be suffered by the Church through the non-observance of the civil law;

According to Renken, the obligations above were reflected in c. 1523 of the

1917 Code but modified in view of the twentieth century advancements and wisdom that necessitated the review of the Code. He also emphasizes the reference of the canon to public juridic persons though the principles can as well be applied by private juridic persons. He further notes that though the illegitimate act of an administrator attracts an appropriate indeterminate just penalty, in line with c. 10; the validity of the act is not affected. Such an act remains canonically valid though illicit.121

121 J. A. RENKEN, Church Property: A Commentary on Canon Law governing Temporal Goods in United States and Canada, New York: Society of St. Paul 2009, 212.

However, an act placed contrary to c. 1281, § 1, that is, “when an administrator goes beyond the limit and manner of ordinary administration without the written permission of the ordinary”, would by that very fact, ipso facto, be invalid. In such a case, as Hite notes, “the juridic person is only liable for the action to the extent it benefitted.”122

3.3 The Catholic Church and Education in Uganda

As the case is for many African nations, Christianity began in a humble manner and gradually became influential even in formal education. From Christian villages for liberated slaves on the coastal areas and village or ‘bush’ schools-as they were called- attached to missions, emerged institutions of Christian expansion and education. This is the trend that Christianity took in East Africa as exemplified by the Spiritans in Zanzibar and Bagamoyo, and the Missionaries of Africa in Uganda beginning with the central region of Buganda.123 Nthamburi Zablon makes remark of the resettlement villages in Bagamoyo as a result of the efforts of the first Spiritan priests in Eastern Africa; Honner and Baur together with two brothers. These were in charge of the first mission station in Zanzibar which was opened in 1863.124

The involvement of missionaries in health care and education has a great historical significance in Uganda. In all circles of life, the marvellous contribution of the Catholic Church and other Faith-Based-Organisations is acknowledged by all who benefit from the enormous and numerous education institutions that have been

122 J. HITE, “Church Law on Property and Contracts”, in The Jurist: Studies in Church Law and Ministry, 44 (1984), 124. 123 Cf. A.D. ROBERTS ed., The Colonial Moment in Africa: Essays on the Movement of Minds and Materials 1900-1940, Cambridge: Cambridge University Press 1990, 164-167. See also P.V, KOLLMAN, The Evangelization of Slaves and Catholic origins in Eastern Africa, New York: Orbis Books 2005. 124 Cf. Z. NTHAMBURI, ed., From Mission to Church: A Handbook of Christianity in East Africa, Nairobi: Uzima Press 1991, 14.

established as from the last quarter of the 19th century. From an article by Kevin

Ward entitled, Church and State in Colonial Era, the following extract is noted about education:

One of the chief reasons for the continuing success of the missions in the colonial era was the continued attraction of literacy. The missions began in the 1890s to establish a formal system of schooling. Each village would have, next to the church, a school for elementary instruction. In the early years of this century the missions also began to establish "central" or "high" schools for more advanced learning. At first the government was more than content to leave education to the missions. But after the First World War, the British began to take a much more active role in African education. J. H. Oldham of the International Missionary Council (based in London) played an important part in persuading the Colonial Officer not to set up a rival system to the one the missions had pioneered, but rather to use the mission network of schools, to set up an Inspectorate and offer grants-in-aid to approved mission schools. This was highly satisfactory to the missions. They were very anxious to retain the denominational character of their schools, as well as a general "Christian atmosphere," and feared the establishment of a secular system. But they critically needed financial assistance. CMS had pioneered high schools such as Mwiri (Busoga), Nyakasura (Toro) and Nabumali (Bugishu), and Gayaza for girls. King's College Buddo was the apex of the whole system. By the 1920s a large proportion of missionary personnel were absorbed in teaching in such schools, and government funding, once begun, became absolutely necessary if the system were to be maintained. The Catholics also cooperated with the government education policy - though always with more reservations than CMS and with a concern not to lose their independence. Kisubi for the White Fathers, and Namilyango for the Mill Hill Fathers, became important high schools on the CMS model.125

The 2009 Education Policy of Masaka Diocese was prompt in acknowledging the contribution of missionaries to formal education in the nation.

First among the agents of this noble apostolate were the Missionaries of Africa between1879 to 1925. They “concentrated on the mission catechumenate as the obvious method of converting people and teaching the Catholic Faith.”126 The work of schools which began in this humble way later led to the establishment of

125 K. WARD, “History of Christianity in Uganda”, in From Mission to Church: A Handbook of Christianity in East Africa, ed. Z. Nthamburi, Nairobi: Uzima Press 1991, 98-99. 126 “History of Formal Education in Masaka Diocese”, in Masaka Diocesan Education Policy, 3rd Ed., St. Christian Graphics Ltd 2009, 1.

Bukalasa Seminary in 1893, St. Francis Boys Primary Sch. 1895 and St. Henry’s

College at Kitovu in 1922. As at present St. Henry’s College is under the administration of Brothers of Christian instruction and is outstanding in academic performance among the secondary schools in Masaka Diocese.

From catechumenate developed the elementary schools. Eventually, “The

School became a priority both at the mission and in the submissions or sub- parishes. There was a healthy competition for schools everywhere and parents were deeply involved in the construction of schools, contributing generously to the raw materials and man- power required.”127 About the consistent influence of Faith- based-Organisations in education, one scholar from Uganda Martyrs University

Nkozi made the following captivating comment in his analysis:

The 2004 Uganda school census revealed that out of 1,696 secondary schools that responded to the census, 38% were government owned, 39.7% were privately owned and a good number were privately owned by Faith Based Organisations […] The people of Uganda have a strong attachment to their respective religions and that possibly explains why many choose to educate their children from faith based schools. Due to their centrality in Uganda’s Education system, Faith Based Organisations are better placed to lobby for curricula reforms that will empower people to critique and transform the country’s socio-cultural, political and economic structures through Education for Sustainability (EfS).128

The same impact can be traced from the statistics given in the first chapter of the 2009 Masaka Diocesan Education policy. In this diocese, by the time the policy was passed, the nursery schools under the Catholic Church were 21, 488 Primary

Schools, 59 Secondary Schools and 21 Vocational Technical schools. Certainly the number has increased over the last six years since the policy came into force.

127 “History of Formal Education in Masaka Diocese”, in Masaka Diocesan Education Policy, 3rd Ed., St. Christian Graphics Ltd 2009, 1. 128 L. SSOZI, “Embedding Education for Sustainability in the School Curriculum: the contribution of Faith Based Organisations to Curriculum Development”, in Journal of Sustainability Education, Vol. 3 March 2012 ( web access: http://www.jsedimension.org full pdf, 2.) accessed on 20th March, 2015 at 9:30 pm.

Among these, some are solely owned and run by the diocese while others receive statutory Government Grant-aid. Among the tertiary institutions, there is a teachers training college in Bikira and nursing training college at Villa Maria. There is also a branch of Uganda Martyrs University Nkozi at Bwala Social Centre.129

With all the quantitative growth of institutions there remains a further question for investigation as to whether they measure to the academic quality, standard and values required of a catholic institute worthy of the name. To ensure such quality, Masaka Diocese makes cross reference to the Uganda National

Education Act 2008 and the directives of the Uganda Episcopal Conference on

Education. Through her policy, the diocese also seeks to observe and implement the

Catholic Church teaching and stipulations on education as drawn from the Second

Vatican Council Declaration on Christian Education (GE).

3.4 Catholic Identity in Church Founded Institutions

The involvement of the Church in education is integral to her mission of evangelisation as mandated by Christ to make disciples of all nations, to baptise them in the name of the Father, and of the Son and of The Holy Spirit; and also to teach them to observe Christ’s commandment ( cf. Mt 28:18-20). According to the

Congregation for Catholic education (CCE), the Catholic school provides a favourable environment for Christian education especially in view of modern challenges. In one of the circular letters the Congregation remarks: “It is from its

Catholic identity that the school derives its original characteristics and its ‘structure’

129 Cf. “History of Formal Education in Masaka Diocese”, in Masaka Diocesan Education Policy, 3rd Ed., St. Christian Graphics Ltd 2009, 1-3.

as a genuine instrument of the Church, a place of real and specific pastoral ministry.”130

In conformity with the social teaching of the Church, education is part and parcel of Christ’s mission of liberating humanity in its totality. It seeks to empower the human person in all dimensions; physical and spiritual, in his or her bodily, intellectual, mental and psychological abilities. Relying on (GE, 1), c. 795 is explicit on the goal of education as it states:

Education must pay regard to the formation of the whole person, so that all may attain their eternal destiny and at the same time promote the common good of society. Children and young persons are therefore to be cared for in such a way that their physical, moral and intellectual talents may develop in a harmonious manner, so that they may attain a greater sense of responsibility and a right use of freedom, and be formed to take an active part in social life.131

In the context of the above canon, Muyebe explicates the meaning of the right to education as presented in the twenty sixth article of the Universal

Declaration of Human Rights. He envisages an “education that promotes respect of human rights and fundamental freedoms; […] that promotes understanding, tolerance, and friendship among all nations, racial or religious groups, leading to a maintenance of peace in the world.”132 It is against this background that, as mother and teacher, the Church endeavours to approach, analyse and interpret all human realities in the light of faith, illuminated and enriched by divine revelation. It is to enable a person live an authentic Christian life based on the gospel values.133

130 Cf. CONGREGATION FOR CATHOLIC EDUCATION, The Catholic School on the Threshold of the Third Millennium, Circular Letter 1997, n. 11. 131 CLSANZ, CIC, c. 795. This canon is paraphrased in J. Beal et al, in The New Commentary on the Code of Canon Law but retains the concept of complete formation of the human person as the goal of education. 132 S. MUYEBE and A. MUYEBE, The African Bishops on Human Rights, Nairobi: Paulines Publications 2001, 71-72. 133 Cf. SDC. nn. 72-75.

Catholic identity thus arises from the range of Christian and human values that have to be inculcated in the academic curricula of the respective schools. The canonical tradition as highlighted in Book III of the Code on the Teaching office of the Church distinguishes three categories: Schools in general (cc. 796-806), Catholic

Universities and Institutes of Higher studies (cc. 807-814), and Ecclesiastical

Universities and Faculties (cc. 815-821).134 These are treated in Title III on Catholic

Education. Given the limited scope of this work, it suffices to cite a few canons in the first two categories that are more applicable (cc. 796- 814).

Everything is identified and distinguished from other entities by a specific character or mark that gives it a name. For a school to be catholic there are various requirements it has to meet which are well stipulated in c. 803 of the 1983 Code, also supplemented in Ex corde Ecclesiae, in that;

§ 1 A catholic school is understood to be one which is under the control of the competent ecclesiastical authority or of a public ecclesiastical juridical person, or one which in a written document is acknowledged as catholic by the ecclesiastical authority. § 2 Formation and education in a catholic school must be based on the principles of catholic doctrine, and the teachers must be outstanding in true doctrine and uprightness of life. § 3 No school, even if it is in fact catholic, may bear the title ‘catholic school’ except by the consent of the competent ecclesiastical authority.

In respect to the above canon, Masaka Diocese recognizes the competent persons to initiate a catholic school. These include; the Bishop, the Diocesan Synod,

Religious Congregations and Diocesan Commissions like MADDO, the laity, the finance committee and others in this capacity.135

Responding to the challenges of the third millennium, the CCE emphasized some fundamental characteristics that have to be emphasized in a catholic school.

134 A. E. SHARON A., “Catholic Education”, in CLSA Comm2, 953. 135 Cf. Masaka Diocese Education Policy, 11-12.

These characteristics come out clearly right from the introductory part which identifies the purpose, the addressees of the circular letter, and the historical progress of Catholic engagement in education. The letter states:

Accordingly, the Congregation for Catholic Education … proposes to "focus attention on the nature and distinctive characteristics of a school which would present itself as Catholic". (2) It therefore addresses this circular letter to all those who are engaged in Catholic schooling, in order to convey to them a word of encouragement and hope. In particular, by means of the present letter, the Congregation shares their joy for the positive fruits yielded by the Catholic school and their anxiety about the difficulties which it encounters. Furthermore, the teachings of the Second Vatican Council, innumerable interventions of the Holy Father, ordinary and extraordinary Assemblies of the Synod of Bishops, Episcopal Conferences and the pastoral solicitude of diocesan Ordinaries, as well as international Catholic organisations involved in education and schooling, all support our conviction that it is opportune to devote careful attention to certain fundamental characteristics of the Catholic school, which are of great importance if its educational activity is to be effectual in the Church and in society. Such are: the Catholic school as a place of integral education of the human person through a clear educational project of which Christ is the foundation; (3) its ecclesial and cultural identity; its mission of education as a work of love; its service to society; the traits which should characterize the educating community.136

To ensure that the identity of the school is safeguarded and that students adequately achieve the purpose of their studies, all stakeholders have to fulfil their duties. Among these is the founding body represented by the Board of Trustees

(BOT), the Board of Governors (BOG) that incorporates the teachers, and parents under the vigilance of the Fathers- in- charge. This is a requirement for all Church- founded schools. All have to be represented and actively participate in the governance of the respective institution. The duties of each party are elaborated in the Diocesan Policy and in the Government Act 2008 some of which are cited below while a full list is attached in appendix I.

136 Congregation for Catholic Education for Seminaries and Educational Institutions: The Catholic School on the Threshold of the Third Millennium, Libreria Editrice Vaticana 1997.

3. 5 National Education Act and Implication for Stakeholders in Education

The 2008 Education Act137 identifies three significant stakeholders in education and training of citizens namely the Government, the Foundation bodies and Parents. Each of these has different responsibilities to fulfil in the partnership.

For instance, the following are some of the responsibilities of the Government done through its relevant agencies:

i) The provision of learning and instructional materials structural development and teachers’ welfare; ii) Setting policy for all matters concerning education and training; iii) Providing and controlling the national curriculum; iv) Evaluating academic standards through continuous assessment and national examinations; v) Regulating, establishing, and registering of Educational institutions; vi) Ensuring supervision of performance in both public and [private] schools; and vii) Development of management policies for all Government and Government aided schools and private schools.

While the responsibilities of the foundation body, in accordance with the set

policy, include:

i) Participating in ensuring proper management of schools of their foundation; ii) Ensuring the promotion of religious, cultural and moral values and attitudes in schools of their foundation; iii) Participating in policy formulation; iv) Participating in education advocacy; v) Mobilization of resources for education purposes; vi) Participating in implementation, monitoring and evaluation of education and services; and vii) Participating in the designing, development, and implementation, monitoring and reviewing of the curriculum.

Those of parents and guardians include:

i) Registering their children of school-going age at school; ii) Providing parental guidance and psycho-social welfare to their children; iii) Providing food, clothing, shelter, medical care and transport; iv) Promoting moral, spiritual and cultural growth of the children;

137 Ministry of Education, “Responsibilities of Stakeholders in Education and Training”, in Education (Pre- Primary, Primary and Post- Primary) Act, 2008, Act 13, Section 5, 10-12. For a full list see Appendix I attached to this work.

v) Participating in the promotion of discipline of their children; vi) Participating in community support to the school; and vii) Participating in the development and review of the curriculum.

3.5.1 National Education Act and Catholic Education in the 1983 Code

A closer analysis of these duties shows that some of them cut across all stakeholders like in terms of discipline, development and review of the school curriculum. Such cooperation is provided and called for in (cc. 796 to 799) of the

Code. These canons indicate parents – teachers’ cooperation, parental responsibility in catholic education and the role of the civil society. The stipulations of these canons138 are as follows:

c. 796, § 1 Among the means of advancing education, Christ’s faithful are to consider schools as of great importance, since they are the principal means of helping parents to fulfil their role in education. § 2 There must be the closest cooperation between parents and the teachers to whom they entrust their children to be educated. In fulfilling their task, teachers are to collaborate closely with the parents and willingly listen to them; associations and meetings of parents are to be set up and held in high esteem. c. 797 Parents must have a real freedom in their choice of schools. For this reason Christ’s faithful must be watchful that the civil society acknowledges this freedom of parents and, in accordance with the requirements of distributive justice, even provides them with assistance. c. 798 Parents are to send their children to those schools which will provide for their catholic education. If they cannot do this, they are bound to ensure the proper catholic education of their children outside the school. c. 799 Christ’s faithful are to strive to secure that in the civil society the laws which regulate the formation of the young, also provide a religious and moral education in the schools that is in accord with the conscience of the parents.

3.5.2 Constitution of Boards and Committees of Administration

At the diocesan level, the Education Board of Directors includes priests, religious and lay persons. This accords it a variety of perspectives and wide range of competence that guarantees hope for quality assurance. To safeguard the catholic

138 The Canons here are taken from the New English Trans. Code of Canon Law, Canon Law Society of Australia and New Zealand ( = CLSANZ ) as fully given in footnote 25 above.

identity and ensure adequate control for authentic ownership, the chairman and assistant are priests of the diocese. In addition, there are seven other members to make up the nine constitutive members of the Board. These include experts in law, human resource management, and economics. The term of office for the board members is three years but can be re-appointed whenever there is need. They hold meetings at least twice a year. 139

There are other committees with various duties to facilitate administration at parish and deanery levels too. As laid out in the Education Policy, at the parish level, the membership is made up of nine persons who include: the Parish council in- charge of education; the Head of the Christian Community; the Father-in-charge as secretary; the Chair person Catholic Teachers’ Association; a representative of Post-

Primary Head teachers; a representative of the School Governing bodies; and two members of an outstanding education background. The chair persons of the respective Parish Education Committees (PEC) with the deanery together with the

Father-in-charge of education in the deanery make up the membership at the deanery level.140

The composition of these Committees is very much in conformity with the stipulations of the Education Act 2008 that calls for and mandates different Boards and School Management Committees. For instance, Part VI Section 28, has the following about their constitution:141

(1)There shall be constituted by the Minister or district education officer, by notice published in the Gazette, a board of governors or a school management committee for any education institution declared by the

139 Cf. Masaka Diocesan Education policy 2009, 17-25. 140 Cf. Ibid., 25-29. 141 Ministry of Education and Sports, “Board of Governors and School Management Committees”, in Education (Pre- Primary, Primary and Post- Primary) Act, 2008, Act 13, Section 28, 27. For more details see Appendix I

Minister or district education officer, as the case may be, to be an institution governed by such board of governors or school management committee and may appoint to it such number of members as provided for by this Act. (2)The Minister, in consultation with the stakeholders, may by regulations make provision for any board of governors or school management committee established under this section, in respect of all or any of the following matters---- (a) the authentication of the seal, the signification of decisions and the execution of documents of the board of governors and school management committee; (b) the term of office of the members; (c) the remuneration or allowances to be paid to the members; (d) the appointment of the committees of the board of governors or management committee and the delegation of powers to such committees or to officers of the school;

3.5.3 Duties of respective Boards and Committees

At the level of the diocese, some of the duties142 indicated for the Board of

Directors include:

i) Reviewing and formulating the policy, objectives and procedure of its operation for the Diocese. ii) To act as an advisory body to the Bishop on matters of education in the Diocese iii) To assess and coordinate the role of each of the stakeholders ain running diocesan schools iv) Constitute sub-committees and co-opt appropriate personnel for advice and guidance. v) To draw up periodically an Education Development plan for the diocese.

The Board has three committees namely: Finance and Development;

Academic and Disciplinary; and finally the Evangelisation Committee. Each of them has to be composed of not less than three members the chairperson inclusive.

The office of the education secretary has various duties143 attached to it too, among which the salient are;

i) Being the secretary and treasurer of the Board. ii) Accounting officer of the Commission. iii) Link Secretariat with Parishes, Districts, Dioceses UCS, UJCC, MoES and other stakeholders in education.

142 Masaka Diocesan Education Policy, 18. For more details see Appendix I

143 Ibid., 19-20.

iv) Ensure implementation of the Education Policy v) Ensure that suitable and competent representatives are appointed to BOG and SMCs. vi) Propose suitable nominees for the Foundation Body to the district and MoES for appointment on school governing bodies.

In addition, there is an inspectorate to ensure quality education through adequate teaching and effective management. This is to be made of educationists of good repute and of integrity and it is answerable to the secretariat.

The School Management Committees are as given in the 2008 Education Act with the Father in charge as an ex- officio member. These apply to pre- primary and primary schools while the Board of Governors is for the post-primary Schools and institutions. The composition144 of the Board of Governors is highlighted as follows:

i) Five members including a chairperson shall be nominated by the Foundation body (Catholic Church) at least one of whom shall be a woman. ii) One local government L.C.V representative nominated by the district council’s standing committee responsible for education. iii) One nominee of L.C. III. iv) Two parents’ representatives elected at the annual general meeting, one of whom shall be the treasurer of the parents’ and Teachers’ Association. v) Two representatives of the staff elected by the staff at one of their meetings vi) One representative of the old students elected at a meeting of their association.

3. 6 Administration of Hospitals as a Health care Apostolate

As evident in all her undertakings, the Church has a great concern for humanity in respect for life and dignity of the human person. In the argument of

David Kelly, this dignity goes hand in hand with the integrity; the sanctity and quality of life as lived. He says: “This Catholic approach, which has insisted on sanctity of life and on quality of life, is based on the theology of the meaning of human life in its dignity, its destiny, and its integrity.

144 Ibid., 30

Human life is sacred, yet its sacredness resides not in the mere prolongation of physical or psychic or spiritual activity.”145 This further leads him to a thorough evaluation of ordinary and extraordinary means of health care which is beyond the limit of this research.

One of the ways of ensuring life in its dignity and integrity is through participating in the healing ministry of Jesus. Such a great mission calls for effective administrative structures for policy implementation and monitoring of service delivery. For this reason, the Catholic Church in Uganda has the Uganda Catholic

Medical Bureau (UCMB) as an umbrella Organ of the Episcopal Conference under the Health Commission that coordinates all Catholic health care facilities in the country. The UCMB works with the Ministry of Health (MoH) according to the

National Policy on Public Private Partnership in Health which was published in

2012.

3.6.1 National Provisions for Private Partnership in Health

The aim of the partnership is summed up in the foreword to the national

Policy given by the MoH. It was “in an effort to accelerate the necessary improvement in equity, access, efficiency, quality and sustainability of health care

[…]”146 in this partnership, there are at least three categories of membership which include: Private Not-For-Profit health providers, Private Health Practitioners (PHP),

Traditional and Complementary Medicine Practitioners (TCMP). It is in the first category that Catholic Hospitals and Health facilities belong under the coordination of UCMB. There are three other Organs at the national level that also operate Not-

145 D.F. KELLY, Contemporary Catholic Health care Ethics, Washington D.C.: Georgetown University Press 2004, 36. For ordinary and extraordinary means see pages 127- 133. 146 J.D. ONDOA, National Policy on Public Private Partnership in Health, Kampala: Ministry of Health 2012, 3.

For-Profit Health facilities namely: Uganda Moslems Medical Bureau (UMMB);

Uganda Protestants Medical Bureau (UPMB); and the Uganda Orthodox Medical

Bureau (UOMB). However, only UCMB will be taken as an example in this work.

The relationship between the service providers in this case, partners in the health sector, is that of partnership which the Policy understands as: “The formal relationship between two or more partners who have agreed to work together in a harmonious and systematic fashion and being mutually supportive towards common goals, including agreeing to combine or share their resources and/or skills for the purpose of achieving these common goals”147 by extension to private entities, the relationship implies a certain degree of private participation in rendering services that essentially and traditionally pertain to public domain. The participation of the

Uganda Catholic Medical Bureau (UCMB) in this venture is the next point of concern.

3.6.2 UCMB Hospital Administrative Principles and Structure

The UCMB is a Health department governed by the Health Commission the on behalf of the Conference of Catholic Bishops of Uganda (UEC). The Mission statement, as briefly inscribed on the footer of every page of the report, clearly indicates the principles and framework for achieving the intended aim of providing holistic and sustainable health services. The Executive Secretary explained it as followings:

The Mission Statement of Uganda Episcopal Conference, the health department of which UCMB is, says we are “To promote Integral Human Development in the Whole World Inspired by Gospel Values (Lk 4:18 ff)” and stated in brief, the Mission of UCMB and the entire Catholic Health Services in Uganda is “In Faithfulness to the Mission of Christ, we are to provide professional and sustainable holistic health services, through partnership, to enable the population to live their life to the full”.

147 Ibid., viii.

The healing mission of Christ was to equitably provide access to quality health care without discrimination except for the preferential treatment of the less privileged in society. This is in line with the forth social value enshrined in the Second National Health Policy of Uganda (section 4.4.4) which states that “Government shall ensure equal access to the same health services for individuals with the same health conditions” It is also in line with the policy’s guiding principle no. 4.5.5 in which the government commits to “explore alternative, equitable and sustainable options for health financing and health service organization targeting vulnerable groups”.148

3.6.3 Villa Maria Hospital Administrative Structure

Villa Maria Hospital is one of those accredited to UCMB at the national level within the auspices of the Episcopal Conference. It has a Nursing Training

School (NTS) attached to it. As from its charter,149 it is noticed that the hospital was started in 1902 by the White Sisters known as (Sisters of Our Lady of Africa). It developed from strength to strength, providing curative and preventive and promotive medical services. It serves Kalungu District and others as a major

Hospital. This hospital belongs to the diocese of Masaka and the structure of its administration and service delivery is drafted in the following procedure.

The Charter begins with a clarification on the name, ownership, history, mission statement, core values, Health Policy and goals. This is followed by mode of governance and accountability whereby the owner, in this case Masaka Diocese, is the custodian of the Mission and ensures continuity of the hospital through assigning and delegating different functions. For instance, the Board of Governors

(BOG) is the supreme policymaking, governing and controlling organ for the internal and external actions of the Hospital. It is appointed by the Bishop.

This is followed by the Hospital management Team (HMT) which is the top management in the hospital and is charged with the day to day running of the

148 S. O. ORACH, Letter of the Executive Secretary in UCMB Annual Report 2013, 12. 149 Villa Maria Hospital Charter, http://villamariahospital.org/charter.html accessed on March 20th 2015, 3-8.

hospital, implementing the policies set up by the BOG. It is also provides the BOG with all the information required to determine the policies, monitor implementation and take strategic decisions. It assures the same day-to-day duties towards the

District Health Authorities [….]150

For the interest of this work, attention is given to name and ownership,

Health policy, mission statement, core values and goals, and partnership. About these aspects the charter151 clearly states in detail:

Name and ownership: The Hospital belongs to the network of Catholic Health Institutions in Uganda and is called Villa Maria Hospital and St. Lawrence Villa Maria Nurses Training School. The Legal and Registered Owner of the Hospital is the Roman Catholic Diocese of Masaka in the person of the Board of Trustees of the diocese [….]

Health Policy: Villa Maria Hospital is committed to – and shall implement the Policies of the Ministry of Health and Ministry of Education and Sports as well as ministry of gender, labour and social development of Uganda and the relevant international health policies when these are not contradictory to the RCC ethical codes. It works in close collaboration with the Health Co- ordination Office of Diocese Masaka and the Uganda Catholic Medical Bureau (UCMB). The hospital and school will adapt the policies to the situation of the population it is responsible for, and develop a plan of implementation at least every five years.

Mission statement: The mission statement of Villa Maria Hospital is adopted from that of the Uganda Episcopal Conference and is based on the imitation of Christ and His deeds, to promote life to the full and to heal. The hospital is therefore committed to a holistic, integrated and sustainable action in health. It includes treatment, prevention, health promotion, social welfare and economic empowerment through community programmes and training of health workers. The hospital will aim to promote access to health care for the less privileged and vulnerable social groups like women, children, the financially destitute and the chronically ill. To this purpose the hospital is a non-profit making institution of the Church [….]

Its core values: i) Giving equal opportunity to all in equal need

150 Villa Maria Hospital Charter, revised 2011, http://villamariahospital.org/charter.html accessed on March 20th 2015, 3. The other constitutive committees to which various duties are assigned will be indicated in appendix II. 151 Ibid., 6-8.

ii) Upholding and cherishing honesty, confidentiality, and professionalism iii) Upholding human dignity and rules of natural justice. iv) A strong belief in constant improvement. v) Placing the patient at the centre of everything that [is done], regardless of colour, gender, tribe, nationality, religion or social status at the heart of everything [done], regardless of gender, tribe, nationality, colour, religion or social status. vi) Value all stake–holders in health and consider ourselves accountable to them.

Its Goals: i) Holistic Approach [ by which ] the hospital will endeavour to take the physical, psychological, social and spiritual dimensions of the person into account in all its services. In this perspective the hospital considers promotion of health and prevention of disease as integral part of its mission. It will allocate adequate time and resources to these services for its established catchment population. The active involvement of the communities, the political and religious leaders, church organizations and catholic schools will be pursued in the promotion of health of the population. ii) Equity and sustainability [in view of which], the hospital will actively pursue access to all services for the entire population, of its established area of responsibility, especially for the less privileged and vulnerable. The hospital recognizes that sustaining accessible and high quality services requires: Good management and continuous efficiency gains; Gaining reputation for quality, friendly and compassionate service; Strict application of the not for profit rationale; Accountability and transparency; Specific skills, well founded arguments and proven performance of access public and other funding sources. iii) For Integration in the national and district health system the hospital will operate as part of the national and Kalungu district health system. The package of curative, preventive and promotional services, activities and support actions will be in accordance with the responsibilities for the hospital’s catchment population. The hospital will pursue sound working relationship with district health authorities and all the health units in the sub-district. Advocacy for the population and full partnership will be based on the extent and quality of the services provided, community participation and thorough knowledge of the community needs. iv) Professionalism, quality care and training [ in which case], the hospital will pursue the highest professional level in carrying out its services, activities, planning and reporting. Quality care and compassionate, friendly attitude shall be the rule in the hospital. Formal training shall be promoted when needed, but emphasis shall be put on in-service training through the utilization of existing resources in the catholic and national network. Development of human resources for the preventive and promotive actions as well as to strengthen the co-operation with the district will be emphasized.

Approach to partnership: The hospital will enter into partnerships, with Government and NGOs, for purposed of promoting health and the provision of effective health care services. These partnerships will only be undertaken with the approval of the BOG and the Diocesan Authorities and

when the partner is willing to respect the identity and autonomy of the hospital. Twinning the hospital and the NTS with similar institutions overseas will be done with consent of BOG and diocesan authorities.

3.7 Ownership, Control and Sponsorship of Church-founded Institutions

The terms and extent of control in administration of any institution largely depend on its status and ownership. Such control may be direct or indirect in which case, as Morrisey notes for health facilities, “one form is the acceptance and implementation of the medical moral guidelines approved by the bishops’ conference of the territory.”152 He mentions other forms like obtaining necessary indults for acts of property alienation.

When perceived as a separate entity, a hospital like any other church- founded institution, may acquire personality in ecclesiastical law. As Hite observes, it could be a non-collegiate juridic person in terms of “land, buildings and endowments brought into existence by the decree of the bishop and entrusted to those competent to operate the institution.”153 In the latter case, it is not independent as such, but part of the apostolic work of the diocese or religious institute that establishes it.

At times however such works are incorporated according to civil law as separate corporations. The intentions behind this are to safeguard the foundation body from the civil liability that may arise concerning one of its works or assets.

152 F.G. MORRISEY, “What Makes an Institution ‘Catholic?”’, in The Jurist: Studies in Church Law and Ministry, 47 (1987), 531-544, 537. 153 J. HITE, “Church Law on Property and Contracts”, in The Jurist: Studies in Church Law and Ministry, 44 (1984), 119.

In this context, the separate incorporation acts as an insulation against any claims on other works and assets that were not included in the incorporation. 154

However, in some cases, the foundation body rightly wills and intends to change the status of the work and hand it over to a different juridic person, or constitute it as an entirely separate entity with given endowments passed on to the new reality or governing body. In this event, proper canonical procedure for alienation has to be followed in terms of acquiring the necessary indults in regard to extraordinary acts among which alienation of such property is included.155

Again, since it is owned by a public juridic person, its property as well is property of the Church and is administered by the person that lawfully acquired it in the name of the Church. Villa Maria and Kitovu Hospitals in Masaka Diocese are examples to this effect. Both of them were started by Religious Institutes of Sisters of Our Lady of Africa and Medical Missionary of Mary respectively. They were later handed over to the diocese and are at the moment administered by the diocesan

Congregation of Bannabikira Sisters (Daughters of Mary) with their mother house at

Bwanda near Villa Maria Hospital.

Different from the above, there are instances where diocesan or religious personnel render services to government hospitals or other institutions. In this case, they work under contracts and the property of such institutions is not church property and is therefore solely regulated by civil legislation. Mulago National

Referral Hospital is under this category.

154 Cf. F.G. MORRISEY, “Establishment of a Lay Board and Alienation of Church Property”, in Canon Law Society of America Advisory Opinions 1994-2000, Arther. J. Espelage, ed., Washington D.C.: University of America 2002 422-425. 155 Ibid., 424.

The modern controversy and sometimes misunderstanding in relation to ownership and civil incorporation of Church property has its nuances in the

McGrath – Maida debate of the 1960’s. In the view of McGrath, Church Institutions once civilly incorporated, were no longer subject to the legislation and administration of the Church. For Maida, whose position has been modified and maintained in the current canonical tradition, the civil incorporation of works of juridical persons does not affect their canonical status. They remain subject to

Church regulations. Moreover, c. 1284, § 2, 20 calls for application of civil law to protect church property. 156

In a nutshell as Morrisey recommends, proper control of Church- founded

Institutions even after their civil incorporation calls for reservation of some powers which has to be explicitly included in the civil acts of incorporation. Otherwise, at the practical level, there is a great danger of losing control especially in terms of maintaining Catholic identity and financial management, especially if governance is dominated by lay people who may have no Catholic background or interest at heart.

The system of reserved powers should include among others: requirement for the consent of the canonical steward in matters that affect or “change the Philosophy and mission of the work, changing the articles of incorporation and by-laws, having some say over the selection of membership of the Board of Trustees, appointment of

Chief Executive Officer, and all acts of alienation to be governed by prescriptions of alienation.157

156 Cf. R.T. KENNEDY, “McGrath, Maida, Michaels: Introduction to a Study of the Canonical and Civil-Law Status of Church –Related Institutions in the United States”, in The Jurist: Studies in Church Law and Ministry, 50 (1990) 351-361. 157 F.G. MORRISEY, “Establishment of a Lay Board and Alienation of Church Property”, 424.

3.8 Conclusion

This chapter has treated the relationship of Church and State in Uganda based on Contracts and cooperation in providing services with specific reference to education and health facilities. It has acknowledged the contribution of the Catholic

Church and other Faith -Based- Organisations in uplifting the human person through quality education and health services. Such provisions are made possible through partnership with the Government and other private stakeholders in service delivery.

Quality assurance, equal treatment of all as human, and maintenance of Catholic identity are part and parcel of the Catholic Church’s engagement in apostolate and works of charity. These and other principles form and inform the ethos behind her administrative policies in various institutions.

In carrying out Christ’s mission of salvation to all, the Church encounters problems in temporal affairs that call for consultation to both canonical and civil legislations a few of which have been cited. The following chapter in a conclusive manner will make an evaluation on particular situations on the ground in a few institutions basing on what has transpired in the foregoing chapters.

CHAPTER IV

EVALUATION, CHALLENGES AND RECOMMENDATIONS

4.0 Introduction

This chapter evaluates administration and the Church’s role of stewardship of all goods for the salvation of souls. As a responsibility of any nation towards its citizens, education and health services are constituent elements of distributive justice and the common good. This evaluation also considers how the Government of the

Republic of Uganda has collaborated, or ought to cooperate, with the Church and other organisations for better conditions and facilities especially in view of health and education of her citizens. In such a process, there are various challenges in implementation of the principles and policies treated in the previous chapters among these are the limited access to, and awareness of these important regulations. In addition, there are also conflicts in terms of identity, purpose and ideologies. Finally this research makes some recommendations in view of the various challenges.

4.1.1 Evaluation on Policy Implementation in Education

First and foremost, it is encouraging to note that there are guidelines laid down by the government in its different policies. The Church observes these

required prescriptions in making her policies in respective fields while safeguarding the mission and identity of the Church as mother and teacher, and as a steward in

God’s vineyard. Her obligation is to lead all to Christ through the apostolate and works of charity.

In matters pertaining to education there is great recognition of the Church as partner in service delivery which is recognised in the 2008 Education Act. Masaka

Diocesan Educational Policy acknowledged this recognition in the second appendix where it pointed out some salient references. First, there is recognition of the existence of faith - based foundation bodies in the Act. The second is the recognition of foundation bodies as partners in education and the third is the mentioning of the rights and duties of foundation bodies; rights and duties of parents and the responsibilities of the government. One section of the third chapter (3.4) made reference to these various duties.158

The collaboration is further reflected in the management structure that incorporates the ministry of Education, the Bishop, the donors and all other education boards and committees within the diocese. This structure is clearly elaborated in the extract attached to this work in appendix I.

Basing on a general overview, all schools have a management structure. The problem arises on how these structures operate. The levels of efficiency also vary depending on the awareness, skills and at times on the interest of the one in charge.

For some, authority is centred on one person who controls the whole structure. For others it is a form of Laissez Faire where there is no central form of control and follow-up. In others, there is a balanced form of governance that is participatory

158 Cf. Masaka Diocesan Education Policy, 56.

where each party knows and fulfils their responsibility. This is the most desirable but the least achieved.

By way of example Schools like St. Cecilia Buyamba and Mbuye Farm

School can be cited as exemplary in following Catholic governance prescriptions in education. The Constitution of Mbuye Farm School lays down the hierarchical structure of authority in which the policy maker is the Bishop through the education secretary, the Father in- charge, and board of governors. The intention of the donors is highly respected as well. At the internal level, the director looks into the implementation of all policies through the vice and the respective managers of school activities such as farming and workshops.159

On the side of the Government, one can adequately acknowledge the contribution in terms of Grants to schools in favour of Universal Primary and

Secondary education as well as vocational training. According to the 2008

Education Act, government grant aided schools refers to “[any] school not founded by the Government but which receives statutory grants in the form of aid from

Government and is jointly managed by the foundation body and Government.”160 A question arises on the Criteria used and the implications for acceptance of such grants in Catholic-founded schools.

The requirements for eligibility to the government grant derive from fulfilment of the registration procedure. Some of them are; good reputation of party founding the school, verification for ownership of the land on which the institution

159 Mbuye Farm School Constitution, 2011. 160 Education Act 2008, section 2, “Interpretation”, 6.

is to be established and being faithful to education plan of the nation. In grant-aided education institutions the responsibilities161 of the Government include;

(a) Ensuring that trained teachers are deployed;

(b) Paying salaries and allowances to teachers;

deploying such heads to institutions in consultation with foundation bodies;

(d) Paying salaries and wages to all established non-teaching staff;

(e) Paying statutory grants;

Besides, the act is also protective to ownership that cannot be changed without following the necessary procedure. One must have received a written approval of the permanent secretary or any other competent authority. Failure to observe the recommendation attracts a fine of “four currency points”162

4.1.2 Evaluation on Policy Implementation in Health Care Facilities

As earlier indicated, Catholic Health facilities are in the category of the Private-

Not-For-Profit facilities. The government supports them in terms of medical supply under the ministry of Health and allocates them some funds through the same. As from the 2013 UCMB Annual Report, the financing for these facilities is in three ways namely from the user fees, from the government subsidy and from other donors.163

In all the health facilities, the human person is the centre in view of his or her dignity and quality of life. It is the aim of all health facilities to protect and promote life for all especially for the marginalized. This is explicitly indicated in the mission

161 Ibid., section 8, “Responsibilities of Government towards grant-aided Education institutions”, 14. 162 Education Act 2008, sections 37 – 40, 34-35. 163 Cf. UCMB Annual Report 2013, 45-48.

statements like that of Villa Maria which emphasizes commitment in terms of;

“treatment, prevention, health promotion, social welfare and economic empowerment through community programmes and training of health workers. [It has as its] aim to promote access to health care for the less privileged and vulnerable social groups like women, children, the financially destitute and the chronically ill.”164

Hence it is clear that the Government of the Republic of Uganda recognises and supports private health facilities in various ways ranging from subsidy funds, medical supplies and in some cases tax exceptions for mobile facilities and medical training.

One can therefore rightly conclude that the collaboration and cooperation between the Catholic Church and State in Uganda is evident in several sectors from which this work singled out education and health. In these, the support of the government is in terms of recognition, grants and subsidies to respective institutions.

However, several challenges are associated with the awareness, implementation and the desired effects of the policies on the ordinary life and circumstances of the people for whom they are meant. This is the concern of the following section.

4.2 Challenges in Policy Implementation in Church-founded Institutions

These challenges reflect the setbacks towards proper implementation of policies and the un-foreseen repercussions of their formulation. From such observations arise the gap- lacuna between policy formulation and implementation.

Some cut across all boards while others are specific. For the sake of clarity, the

164 Villa Maria Hospital Charter, http://villamariahospital.org/charter.html accessed on March 20th 2015, 3.

sectors of interest are treated separately but the common challenges will be referred to where they appear.

4.2.1 Challenges in Education Policy Implementation

First among the challenges is limited awareness which is common in all sectors. This, at times, is due to lack of interest or poor dissemination of relevant information. For instance, in the schools visited at least 30% neither had nor were they aware of anything like the education policy, be it that of the government or that of the diocese. It was more disgusting that even some of the Fathers-in-charge of schools at parishes did not have any copy of the Masaka Diocese Education Policy.

The challenge here is as to how such pastoral agents can implement what they are not aware of, or what they seem to have no interest in. Will they safeguard the identity of the Church in education institutions? The situation worsens when it comes to teachers especially those in charge of religious activities in the schools.

The other challenge is that of incompetence. Many of our diocesan priests once appointed as father-in-charge, they assume that they know everything and want to control everybody in the name of safeguarding the interests of the Church. In this way, they make a shadow of their committees and miss the expertise of the competent members of either the Board of Governors or School Management

Committees.

Besides, there are cases of conflicting royalty also common in other Church- founded institutions. In schools it happens in the event that non-Catholic head teachers may seek to suppress the promotion of Catholic faith in the pretext of neutrality of the state in religious affairs in public institutions like schools.

This however is not exactly in line with the 2008 Education Act which allowed for religious freedom and instruction in schools and made it as one of the functions of the head teacher. In regard to religious matters the policy states that the head teacher shall;

Through school religious activities or any other means ensure that moral values are taught and upheld in the school; In so doing, regard shall be accorded to the religious traditions of the foundation body, except that the head teacher shall not require any student to receive denominational or instruction or attend denominational or religious observances against the wish of such student’s parents or guardians if they are of a different denomination or religion […]165

Connected to the above is the question of ownership and consequently administration. For some think that by enrolment for government grant, the school ceases to be private. They are misled by the first glance at the interpretation of the

2008 Act where a private school is “a school not founded by government and which does not receive statutory grants from Government.”166 However, such a misunderstanding is clarified in the specific duties and functions that the Act ascribed to different stakeholders in section five (5) that was referred to in chapter three (3.4) of this work. It is also explained in the provision for consultation between the foundation bodies and the government in appointing head teachers in grant-aided education institutions given in section eight (8) of the Act quoted in the first section of this chapter ( 4.1).

The other challenge is the availability of resources for the smooth running of the institution. With policy formulation and implementation of Universal Primary

Education since 1997, many parents ceased to give any contribution to the formal education of their children. They would argue that the government has given them

165 Education Act 2008, Section 21, 67-68. 166 Ibid., Part I section 2, 7.

everything and that the children belonged to the government. In Luganda, which is the local language of the central region, they would say Abaana ba Museveni, meaning, the children belong to Museveni the President. More than often, the government allocations also delay which jeopardises the running of the respective institutions.

On the other hand, there is lack of transparency and accountability for the received financial and other material resources. This greatly discourages donors whose intentions are not respected due to deviation or misappropriation of funds.

Therefore the principles for budget presentation and auditing of accounts should be strictly observed to redress the challenge.

Concerning human resource, majority of the personnel has no training at all, while that of a few is the bare minimum in administrative skills. Given such scenario, as the case is for most of the rural schools and health facilities for that matter, working on policies even if available remains more of a dream that a reality.

4.2.2 Challenges in Health care Apostolate

Unlike the case for education, there are no specific canonical references in regard to health care. This implies that reference has to be made to other moral and religious directives. To this end, experts in Catholic Health care, through the

Catholic Health care Association of America (St. Louis University) made a provision for Ethical and Religious Directives (ERDs) in Catholic Health care

Facilities. These rules according to Russell Smith apply to both public and private

juridic persons in health care even though the rules of alienation in regard to property do not bind private juridic persons.167

The other challenge more rampart with Health facilities than schools is accessibility. There are fewer dispensaries in rural areas with lesser facilities for treatment even for common health problems like Malaria. In addition, there is insufficiency of health personnel. With the help of donors for instance in

Lwamaggwa, a mobile programme was set up. It is a Non-Facility-Based outreach programme especially to the people living with AIDS (PLWA) in the area.

Administratively, due to shortage of personnel, the focus is more on medical than administrative skills. The running of the programme and the health facility is left to the pastoral agent who does not have any medical background. This makes coordination difficult and at times results into collision and conflict between the priest and the medical staff due to differences in orientation in training and interests in life.

The other challenge comes in terms of decision making especially when the administrative committees comprise more of the laity and sometimes non- Catholics who have no interest in Catholic identity but in what they can earn from the facility.

In such cases, deliberations may be made and implemented in favour of ideologies and practices like abortion and sterilization that are contrary to Catholic teaching and ethos. Here there is a greater need in application of reserved powers in civil incorporation articles of Catholic institutions.

167 Cf. E.S. RUSSELL, ed., The Splendour of Truth and Health Care: Proceedings of the Fourteenth Workshop for Bishops of Dallas ,Texas, Massachusetts: The Pope John Centre 1995, 92.

4.3 Recommendations

The recommendations here made are in a pastoral and canonical point of view. In the pastoral approach the greatest concern is on what best suits a particular case in accordance with, and in application of the given universal norms of procedure. In the canonical approach the concern is the availability of principles for the regulation of activities and proceedings in general. The pastoral application should reflect the spirit though not necessarily, the letter of the law.

4.3.1 Pastoral Recommendations

Given that the ultimate end of pastoral ministry is the salvation of souls which is also the supreme law of the Church (c. 1752), it becomes evident that the law of the Catholic Church is at the service of ministry. The law is intended to safeguard and guide the Church in fulfilling her purpose and salvific mission.

Pastorally, most of the challenges in administration some of which have been mentioned, call for sensitization in order to facilitate a greater level of awareness.

This is both in rural and urban settings beginning with policies followed by the best ways of implementing them all over the country.

Besides, pastoral agents need a proper training in administration to understand their role first as stewards in God’s household and then as trainers of trainers and not semi-gods or dictators around whom everything revolves. They also need to fully understand the importance of collaborative ministry that helps in tapping and benefiting from the expertise of the laity in building God’s house, the community of believers, the Church of Christ entrusted to their care.

In addition, organising and facilitating seminars and workshops would be of great advantage in making the various management committees committed and

effective in their responsibilities. Visiting prosperous parishes and communities would also be advantageous in building the morale of the weak and encouraging the strong to remain committed to their administrative services whether in schools or hospitals.

Pastoral approaches are in no way contrary to legal prescriptions be they ecclesiastical or civil especially in matters pertaining to temporal goods like land and movable assets subject to civil regulations. The condition as given in cc. 22 and

1290 is that all positive laws only bind insofar as they do not contradict natural law and divine law from which they originate and to which they are to be orientated.

This is the basis of the canonical recommendation in the following section.

4.3.2 Canonical Recommendations

The greatest canonical issue raised in this work is ownership and control of

Church-founded institutions in the event of civil incorporation or civil assistance in these institutions. A proper response to this issue requires a thorough analysis of the responses in the McGrath- Maida debate that was hinted on in chapter three (3.5.4).

Hence, the recommendation here is to follow civil regulations in safeguarding the property of the Church and respecting the intention of donors as called for in c.

1284, § 2, 30.

To ensure transparency and accountability, administrators should consider the canonical stipulation of presenting annual budgets of income and expenditure as recommended in c. 1284, § 3 which states: “It is earnestly recommended that administrators draw up each year a budget of income and expenditure. However, it is left to particular law to make this an obligation and to determine more precisely how it is to be presented.”

Further, as Morrisey recommended, it is important to reserve some powers of control explicitly indicated in the civil articles of incorporation otherwise the Church is exposed to the danger of losing property due to separate incorporation of that property or work especially if the laity or non-Catholics make up the majority of the members of the Board of Governors.

4.4 Conclusion

This chapter has dealt with evaluation of the research findings, challenges and recommendations for implementation of established policies for making better the relation between Church and State as stakeholders in the education and health of all citizens of the country. It is evident that there is a great cooperation between the government and the Catholic Church in delivering these essential needs to the people. Each of these entities has a role to play without infringing on the autonomy of the other. This is based on given principles and guidelines that were treated in the second chapter. The process of implementation has a lot of challenges like limited awareness due to negligence or inadequate information; shortage of resources and lack sufficient qualified personnel; and conflicting royalty. All these call for both pastoral and canonical remedies that have been cited in this chapter as recommendations. The pastoral remedies include: sensitization, training of pastoral agents and visiting other parishes and institutions for motivation. The canonical remedies include observance of ecclesiastical and civil regulations to safeguard church property and reservation of control powers to ensure ownership. These recommendations show that church law is not against but at the service of the

Church’s pastoral activity and ministry for the purpose of salvation of souls. This paves the way to the conclusion that Church and State co-exist and collaborate as

partners in service to the human person in temporal and spiritual needs that are geared to the ultimate destiny of union with God. With all the challenges and possible approaches to them, it is evident that there is still a greater need in taping the available resources especially by involving the laity in their fields of expertise.

The spirit of vigilance and collaboration among pastoral agents has also to be more cultivated than that of dictatorship in the name of control over church property. This will be a good application of the principle of subsidiarity where each is given an opportunity in their ability to do what they can do best at their own level for the common good.

GENERAL CONCLUSION

The central purpose of this work was to answer the question as to how the

Church and State relate when it comes to administration of Church -founded schools and hospitals. Although the intention was for Uganda and Masaka Diocese in particular, the issue of church-state relations is much broader than the peripherals or boundaries of one state or a particular diocese for that matter. This is why the first chapter was dedicated to tracing the historical background of the relation at the universal level in the perspective of the powers vested in the Roman Pontiff and how these powers are shared by respective bishops at the local level in their dioceses.

This led to the Papal Legates as representatives of the Roman Pontiff in both ecclesial and civil matters in the countries to which he sends them.

The second chapter analysed the principles that govern church-state relations which include; human dignity, separation, cooperation and the common good which both church and state seek to provide and promote. This led to the third chapter that looked at how the principles mentioned make a bearing in the practical and ordinary life in terms of administration of schools and hospitals in Masaka Diocese basing on

both the National Policies and Ecclesiastical legislations on education and healthcare facilities. The fourth chapter concluded the research with evaluation, challenges and recommendations as a way forward.

However, despite the conclusion, the work is by no means definitive. It has raised questions for further investigation and research. One concern is as to why health facilities were not included in the Code while education is treated and even with subsequent legislative supplements over years. Yes, many argue that health care facilities were attached as apostolates or works of the juridic person that founded them, or to whom they were handed over either to a diocese or to indigenous religious congregations.168

But education is an apostolate as well. The question of health care facilities however becomes more sensitive and complicated, thus presenting more challenges, because of the diversity of national policies in rendering health services. The most appropriate approach is that of adhering to the moral or ethical and religious directives that are based on the dictates of Natural law as human participation in the divine law. This becomes more significant in matters pertaining to the life and destiny of the human person.

May be there is a need for revision of the 1983 Code. There are several indications to this move such as the omnium in Mentem of Pope Benedict XVI 2009, the amendment of the penal process in cases of sexual misconduct of the Clergy involving sexual abuse of minors 2012 and the implicit desire to review the judicial procedure for marriage cases. However these were not within the scope of this work.

168 Cf. E. S. RUSSELL, ed., The Splendour of Truth and Health Care: Proceedings of the Fourteenth Workshop for Bishops Dallas ,Texas, Massachusetts: The Pope John Centre 1995, 87-97.

The other question that would require further investigation is about the discrepancy between policy formulation and implementation. Is it that stakeholders are not adequately involved in the whole process, that is, in contributing to the ideas and in identifying more relevant and immediate issues to resolve? In this case, as drawn from the social doctrine of the Church, the principle of subsidiarity that leads to participation of all and solidarity should be evoked and practically followed in order to yield the intended results for all policies.

In some instances, the inadequacy or misappropriation of resources could be the cause of the failure in policy implementation. This calls for proper structures of monitoring and above all, of personal commitment to the common good of the society to which each person is obliged to contribute.

Many more questions continue arising and for this reason, the work has been an eye opener, just a drop in the sea, or a ball set rolling. It is expected to bring about more awareness and concern for all stakeholders at least in matters of health and education that are in the list of basic needs. More than the formulation of policies and principles, their application for the good of the human person and for the salvation of souls remains a central challenge in both ecclesial and civil circles.

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APPENDICES

Appendix I: Extracts from Education Policies. MoES: Education Act 2008 Masaka Diocesan Education Policy 3rd Edition 2009

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Appendix II: Extracts from Medical policies and Reports

MoH: National Policy on Public-Private Partnership in Health UCMB Annual Report 2013 Villa Maria Hospital Charter Villa Maria Hospital Analytical Annual Report 2010-2011