Wakilii

Luyimbazi & Anor v Bzigatirawo & Anor (HCT-00-CV-EP-0044 of 2011)

High Court · [2011] UGHC 96 · 2011 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the qualification of the first respondent to stand as LCV District Chairperson for Mubende District
Decision
Petition dismissed; first respondent's election as LCV District Chairperson for Mubende District upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that a pending revision application does not operate as a bar to an election petition where the candidate has been convicted by a competent court. Assault occasioning actual bodily harm under Section 236 of the Penal Code Act does not constitute a crime involving moral turpitude under Article 80(2)(f) of the Constitution. The test is whether the act shocks the moral conscience of the community, measured by the standard of a reasonable person in that community. Where the same community that witnessed the crime overwhelmingly elected the candidate, the act cannot be said to involve moral turpitude.

Outcome

Petition dismissed; first respondent's election as LCV District Chairperson for Mubende District upheld

Facts

The petitioners challenged the election of the first respondent as LCV District Chairperson for Mubende District on grounds that he was disqualified under Article 80(2)(f) of the Constitution, having been convicted by a Magistrate Grade I Court of assault occasioning actual bodily harm contrary to Section 236 of the Penal Code Act. The conviction arose from an incident where the first respondent slapped a colleague after a heated argument over motorcycle allocation at a Local Council meeting. The first respondent had filed a revision application at Nakawa High Court challenging his conviction. The first respondent won the election with a landslide victory, receiving over 75,000 votes more than the second petitioner.

Issues

  1. What is the effect of the pending application for revision (Nakawa High Court Revision Application No. 1 of 2011) against the judgment of the Magistrate Grade I at Mubende Chief Magistrate's Court?
  2. Whether the effect in (1) above, if any, has any material bearing on the current petition.
  3. Whether Assault Occasioning Actual Bodily Harm contrary to Section 236 of the Penal Code Act amounts to a crime involving moral turpitude.
  4. Whether the parties are entitled to the remedies sought.

Orders

  • Petition dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Electoral Law — Candidate Disqualification — Effect of Pending Revision Application
A revision application filed in the High Court does not operate as a stay to further proceedings or set aside a conviction by a lower court until it is heard and determined. The existence of a conviction by a competent court remains effective until reversed by order of a higher court.
Constitutional Law — Statutory Interpretation — Competent Court versus Final Court
Article 80(2)(f) of the Constitution deliberately uses the phrase 'competent court' rather than 'final court' or 'appellate court'. A competent court is one vested with necessary jurisdiction to hear and determine a matter, and the existence of a conviction by such a court is the operative fact for purposes of candidate disqualification.
Constitutional Law — Candidate Qualifications — Moral Turpitude — Definition and Applicable Standard
The term 'moral turpitude' refers to conduct that is contrary to justice, honesty, or morality, involving extreme departure from ordinary standards. It encompasses acts of baseness, vileness, or depravity in duties owed to others or society. The applicable standard is that of a 'reasonable person' in the relevant community. What is considered moral turpitude is not fixed but varies according to the community's level of socio-economic development and prevailing public morals.
Constitutional Law — Moral Turpitude — Determining Whether a Crime Involves Moral Turpitude
In determining whether a crime involves moral turpitude, a court does not go behind the conviction to reconsider facts and circumstances but examines the statutory definition and elements of the crime. However, some crimes do not necessarily demonstrate readiness to do evil even though their definitional elements may involve moral turpitude. The manner of commission, mens rea, and context must be considered. The test is whether the act would shock the moral conscience of the community, measured by the reasonable person standard.
Criminal Law — Assault Occasioning Actual Bodily Harm — Classification as Crime of Moral Turpitude
Assault occasioning actual bodily harm contrary to Section 236 of the Penal Code Act does not necessarily constitute a crime involving moral turpitude. Where the act arose from a heated political argument resulting in a slap and the same community overwhelmingly elected the offender to higher office, the act cannot be said to shock the moral conscience of that community. The standard is flexible and contextual, not absolute.
Constitutional Law — Constitutional Interpretation — Liberal Interpretation of Rights-Restrictive Provisions
Constitutional provisions that restrict citizens' rights, including electoral rights, should be interpreted liberally to grant wider enjoyment of rights rather than in a strict legalistic manner. Courts should interpret constitutional provisions to give force and life to the words used and avoid interpretations that would produce absurd consequences. Where two constructions are possible, the interpretation favourable to rights should be preferred.
Electoral Law — Community Conscience — Effect of Electoral Outcome on Determination of Moral Turpitude
Where a candidate convicted of an offence is subsequently elected by the same community with a landslide victory, this demonstrates that the offence did not shock the community's moral conscience. The overwhelming electoral support indicates confidence in the candidate and embodies the community's values and aspirations, relevant to determining whether the offence involves moral turpitude.

Legislation cited (17)

Cases cited (24)

  • Byanyima Winnie v Ngoma Ngime (High Court Civil Revision No. 9 of 2001)
  • Assanand & Sons (U) Ltd. v. East African Records Ltd. [1959] EA 360
  • Robert Ndeiho and Ogunyu Vs R [1951] 18 EACA 171
  • De Souza Vs Uganda [1967] EA 784
  • Musa & O'rs Vs R. [1967] EA 573
  • R. Vs Cheya [1973] EA 500
  • Re Fernando Alfonso Torres-Varela, Respondent File A29, 242 698 - Florence, decided on May 9, 2001
  • The State and Malawi Electoral Commission Respondent Ex parte Yeremiah Chihana Applicant, Miscellaneous Civil Cause No. 41 of 2009
  • Hon. J. Z.U. Tembo, Hon. Kate Kainja and Attorney General, Civil Appeal Cause No. 50 of 2003
  • Andrew Bowalick Vs The Commonwealth of Pennsylvania No. 799 C.D 2003
  • Attorney General v Masalu Musene & 3 O'rs (Constitutional Petition Appeal No. 5 of 2005)
  • People Vs Onledo, 167 Cal. App. 3d, 1085, 1098 [1985]
  • People Vs Miles 172 Cal. App. 3d, 474, 482 [1985]
  • People Vs Rodriguez 177 Cal. App. 3d 174, 178 [1986]
  • People Vs Lindsay 206 Cal. App. 3d 849, 857
  • People Vs Mazza 175 Cal. App. 3d 836, 483 [1986]
  • Drazen Vs New Haven Taxi Cab. Co, 95 Comm. 257, 132, A 540 [1926]
  • State Vs Malusky 65 F. 158 [1894]
  • State Vs Malusky 59 ND 501, 230 NW. 735 (1930)
  • Fred Sewula Vs Attorney General & Malawi Congress Party, Misc. Civil Appeal No. 32 of 1997
  • Attorney General Vs Dr. Mapopa Chipeta Misc. Civil Appeal No. 33 of 1996
  • State Vs The President of Republic of Malawi & the Minister of Finance & Secretary to Treasury Exparte Malawi Law Society, Constitutional Case No. 6 of 2006
  • Attorney General, Constitutional Appeal Vs. Maj.Gen. Tinyenfunza David No.1 of 1997
  • Rev. Mutikila v. Attorney General Civil Case No.5 of 1993

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Luyimbazi & Anor v Bzigatirawo & Anor (HCT-00-CV-EP-0044 of 2011) [2011] UGHC 96 (21 July 2011)
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