Wakilii

Luyimbazi & Anor v Bazigatirawo & Anor (Election Petition Appeal No. 40 of 2011)

Court of Appeal · [2012] UGCA 17 · 2012 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Election petition appeal from a decision of the High Court of Uganda at Kampala
Decision
Appeal dismissed; High Court decision in favour of the respondents upheld

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Holding

The Court of Appeal held that for a crime to involve dishonesty or moral turpitude under Article 80(2)(f) of the Constitution, it must be extreme and so heinous as to shock the moral sense of the particular community, judged on the facts of each case. The offence of assault occasioning actual bodily harm — a man slapping another during a heated local council debate — did not meet that threshold and was not a crime involving moral turpitude. The trial judge was justified in applying the standard of a reasonable man. The 1st respondent was therefore not disqualified from election. The appeal was dismissed for lack of merit, with each party bearing its own costs given the public interest nature of the litigation.

Facts

The appellants and the 1st respondent contested the seat of Local Council V Chairperson of Mubende District. The 1st respondent was declared winner and gazetted. The appellants filed a joint election petition challenging the declaration on the sole ground that the 1st respondent had, within seven years preceding his nomination, been convicted of assault occasioning actual bodily harm contrary to section 236 of the Penal Code Act. They contended this was a crime involving dishonesty or moral turpitude, rendering him disqualified under Article 80(2)(f) of the Constitution and the Local Governments Act. The conviction arose from the 1st respondent slapping another man during a heated local council meeting debate. The incident occurred in a Council Hall and was publicized on radio. The 1st respondent was overwhelmingly elected with 84.3% of the vote. The High Court determined the petition in favour of the respondents, finding the offence did not amount to a crime involving moral turpitude, prompting this appeal.

Issues

  1. Whether the offence of assault occasioning actual bodily harm of which the 1st respondent was convicted is a crime involving dishonesty or moral turpitude under Article 80(2)(f) of the Constitution.
  2. Whether the trial judge erred in adopting a subjective test of a flexible reasonable man in defining a crime involving moral turpitude.
  3. Whether the disqualification under Article 80(2)(f) is an ex ante evaluation or an ex post assessment based on the outcome of an election.

Orders

  • Appeal dismissed for lack of merit.
  • Each party to bear its own costs.

Key headnotes

Electoral Disqualification — Article 80(2)(f) — Crime Involving Dishonesty or Moral Turpitude
For a crime to qualify as one involving dishonesty or moral turpitude under Article 80(2)(f) of the Constitution, it must possess a measure of gravity and absolute wickedness, being extreme and so heinous as to shock the moral sense of the particular community in which it occurred.
Undefined Constitutional Terms — Determination by Courts on Facts of Each Case
Where neither the Constitution, an Act of Parliament nor a Ugandan judicial decision defines a crime involving moral turpitude, the determination is left to the courts, which must consider the facts of each case as the examples of conduct amounting to moral turpitude may never be exhaustive.
Assault Occasioning Actual Bodily Harm — Whether a Crime Involving Moral Turpitude
The offence of assault occasioning actual bodily harm, such as a man slapping another during a heated local council debate, though frowned upon, is not extremely shocking to the community and does not amount to a crime involving moral turpitude within Article 80(2)(f) of the Constitution.
Limitation of Fundamental Rights — Generous and Liberal Interpretation
A constitutional provision that limits fundamental rights, such as the right to vote and to participate in civic affairs, must be given a generous and liberal interpretation, and courts must be slow and cautious in curtailing citizens' constitutional rights.

Legislation cited (6)

  • Constitution of Uganda Article 80(2)(f)
  • Constitution of Uganda Article 183
  • Constitution of Uganda Article 38
  • Constitution of Uganda Article 58(1)
  • Penal Code Act s.236
  • Local Governments Act

Cases cited (5)

  • J.Bawalick v The Commonwealth of Pennsylvania (NO.799 C.D.2003)
  • Rev. Mutikila v Attorney General of Tanzania (Civil Case No.5 of 1993)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Saia v New York 1948 334 US 558
  • The State and Electoral Commission Ex parte Yeremiah Chihana Misc.Civil Cause No.41 of 2009
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.