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By:
HARRISON MAINA | ||||||||||
| Posted:
Jun,03-2016 12:30:57
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Clearly at pains deciding on the hot potato dispute rocking the Kenyan All Saints Community church in Boston, Norfolk Superior Court Judge Jeffery Locke decided not to decide on the religious matter yet, fearing a court decision will end up splitting the church, something he does not want to do-- until forced to. The judge said that he believed instead of a court ruling, all the members of the All Saints church are good people who had the wherewithal to come up with a fair resolution with the help of their attorneys, on condition that there can be good communication and basic principles agreed on to kick- start the process. With both attorneys reaffirming in open court that the parties are willing to settle the dispute among themselves, the judge then urged them to start the good faith effort by giving members an opportunity to have an input in the stalled effort to find a new pastor to succeed Rev. Fredrick Thanji--who is up for retirement--as well as elect 5 new members into the church council to replace those who quit the last December, when the dispute hit rock bottom and tempers flared. Pumping much needed life into the renewed resolution effort following several false starts in the last several months, Judge Locke led the defendant to agree to a demand by the suing group to allow them unlimited access to the church one a week on Saturday afternoons for the purpose of holding their meetings. According to the Judge, the suing group had filed a preliminary injunction motion, complaining that the pastor and his supporters had locked them out by denying them access to the church, and refused to renew their membership. The group sought to have the pastor compelled to allow them back into the church unhindered. In response, Rev. Thanji countered with three motions to dismiss, on the basis that the court should not intervene in church matters as per the First Amendment of the US Constitution, that the complaint was a misnomer as the plaintiff had no authority to sue on behalf of the All Saint's Community Church Inc.,-- as they were not members of the board of directors of the Massachusetts based corporation-- and that the case was only brought by a group of individuals who had abandoned the church. "If necessary, I will decide on all the motions. I can't do that without resulting into a clear winner and a clear looser. It is my view that, that will do nothing to resolve the dispute that has developed in this church," the judge said while taking a rare step to directly address about 40 members of the church from both sides of the dispute packing the courtroom soon after witness testimonies wrapped midday Tuesday. He gave both parties 3 weeks to work out their differences and return to the court on Tuesday June 21, upon which, if they will not have settled the matter as they promised to, he will be forced to painfully decide on the four motions filed before him.
"In the course of four days, we heard testimonies from people who held positions or were members of this church. I would like to speak with the audience now more than the counsels," Judge Locked told a hushed courtroom. He said that it was very important for the All Saints members to understand the very limited role the court has in resolving disputes arising from religious organizations. "Courts fear that the government will intrude too far into people's maters of faith if the government tells the church how to proceed. Nothing is more sacred in our Constitution than the principle that the government should not tell people what they believe is wrong or what to believe. The court is not terribly situated to decide on these matters. This matter is here because the church is an incorporation that owns property as legal entity on its own," in reference to the First Amendment of the US Constitution. The judge told the Kenyans that when he had summoned both lawyers into his chambers for almost one hour soon after the last witnesses wound up their testimonies, he informed them that any decisions that he might make will likely harden the positions of each party. He added that in addition to the limitations imposed on him by the First Amendment, he found it difficult to rule on the dispute because all parties in the matter seemed like very good people, who were all but genuinely concerned for the future of the church. Judge Locke said that the members of the church all emigrated from Kenya, formed themselves into a community under guidance of Rev. Fredrick Thanji, where they were able to practice their traditions and cultures while being good members of the community.
"Typically, in most cases we see, there is a victim--the good guys and the bad guys, whether it's in civil or criminal cases. It's not terribly difficult to figure out who is the bad guy and who is the good one. Here, I see no bad people, I see no victims in this matter. All I see is good people with tremendous equity, respect for the court and the process. I see in many ways this dispute is about how the future looked like for the church," the judge said while speaking candidly. He appealed members on both sides of the dispute to allow the better side of their human nature to prevail so that they can search for a new pastor and streamline the church processes without any further dispute, so as to allow Rev. Thanji retire peacefully and happily. "If Rev. Thanji takes what is rightfully and well deserved retirement, I think that would be terrific. The new pastor can build on the solid foundations laid by Rev. Thanji for the last 15 years or so." The judge said that although there was a dispute regarding the much disputed 2012 Constitution, it was very clear to him that the church has been operating on some kind of rules of regulations since it was founded in 2001 to the present. "Call them what you want, but everybody who testified here said that there were some positions with distinct functions that existed in the church, and people have performed those functions, meaning there were some principles or rules that created those positions." "Whether those rules came as traditions from Kenya and imported here, or some other way, they provided a basis for an operational document," he clarified. The judge added that he has yet to decide on whether there was properly held elections in the church, a properly voted for an approved 2012 constitution that is under dispute. However, despite that, the judge noted that it was crystal clear that there was an intense effort between 2007 and 2009 by church members to come up with a proper Constitution, which took up a lot of time and efforts for all involved. "There were efforts to come up with an operating document in the form of a Constitution which could be voted for an approved by all members. As for the voting, it does not appear like this happened," the judge said.
"If I deny the motion to dismiss, the litigation continues. There could be a little relief that will force the election of directors, but that won't happen for another long period of time, likely 12-18 months-- before the matter is prepared again and presented to the court--and probably another 12 months before a decision is made." During his testimony, Anthony Kabuga, a long time member of the church told the court that after a final draft of the alleged 2012 Constitution was voted and approved by the constitution review committee, and brought by the pastor to attorney Pascalina Gathua in Lowell for notarization. He said that the notarized Constitution was then presented to the members at an Annual General Meeting in February, 2012 by way of waving it in the air. "I was asked to table to the constitution to the members at the AGM since the church secretary was absent on that day. I held up the constitution high up in the air with both hands and told the members that the constitution is ready and that invalidates the earlier 2002 Constitution," Kabuga said during cross examination by attorney Hale. Curious about that process, the judge asked Kabuga if there was an actual vote where a tally was taken. "No. we did not keep a record of the members present at the AGM. But it was very well attended. But i asked if there was anyone with an objection or question on the new constitution and no one said anything. Therefore it was unanimously voted on," Kabuga responded. However, the judge grilled Kabuga on the apparent inconsistency in his testimony, since minutes recorded at the AGM and presented to the judge indicated that a vote was not taken at the said AGM, with a view to give members a period of 3 months to review the document, after which a proper vote was to take place. Kabuga said that as per tradition of the church, he thought that if no one raised an objection, then they were all in agreement until the current dispute arose in February 2015 when one member, John Giathi, went to his house to request a copy of the Constitution. Other witnesses testifying on Tuesday included Rose Ndun'gu and Patrick Karanja for the suing group, and Richard Richu, the people's warden at the church and members of the church council who appeared for the second day at the hot seat. "I can't decide on this case. I don't think that will do any good. If I allow the defendant's motion to dismiss, I still have 60-70 formerly active members of the church that will no longer feel welcome or invited in the church." By that time, the judge continued, Rev. Thanji will have retired. "I the end, I think it is not wise. I will decide if necessary but this will not serve the long term interests of the church." After addressing the Kenyans for about 10-15 minutes, the judge suggested a special meeting to be held where a pastor search committee for the new pastor and elections for the empty church council seats can be worked out by all members in a free and fair voting process.
An awkward moment developed when the judge finally gave the two attorneys a five minute recess to consult with the parties on his suggestions right inside the courtroom, only for them to come out swinging with hardened demands for the compromise process to start. Attorney Hale said her party is open to compromise and start the process, but on condition that they are allowed a full unfettered access to the church for the purpose of holding their meetings and prayers. She also demanded that the church remains an independent congregation as is right now during the entire process of dispute resolution. Attorney McLaughlin objected to the church building access demand by indicating that since members for the church came from many different cities around Massachusetts, full access to the church as demanded by the plaintiff would cause a burden and conflict of schedule to the custodian who lives in Quincy. He did not respond to the hotly disputed Anglican church of Kenya affiliation demand. Exasperated with the situation, the judge said he could not see why the defendant could not recognize "even one night of the week", when the plaintiff can have access to the church for their meetings. He thus summoned up the two attorneys once again to his desk where they held some inaudible, intense discussions for another 5 minutes, after which they seemed to come up with some kind of agreement. In the end, the judge reported that they had agreed that the suing group will be allowed access to the church on Saturday afternoons except for Saturday June 18, when a certain function is scheduled to take place. However, the judge cautioned that the access provided will be solely for the plaintiff to discuss matters for the church and not engage in other activities. He said that no one should be seen wandering around during such meetings. The case was then adjourned for June 21 at 2pm. "It went well. I think we can be able to resolve the differences by the three weeks the judge gave us," said Peter Karanja, a founding member who was part of the suing group while speaking to Ajabu African News outside the courthouse soon after the hearing. "I think the judge was good since he does not want to break the church. We should be able to forgive each other and find a compromise before the time given. If Christ forgave us, why should we not be able to forgive each other," said an excited Muchai, a female member of the group supporting the pastor's position.
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Source:
AJABU AFRICA NEWS
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