Wakilii

Luyimbuzi and Anor v Bazigatirawo and Anor (HCT-00-CV-EP 44 of 2011)

High Court · [2011] UGHCEP 10 · 2011 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Electoral petition challenging the validity of the election of the 1st Respondent as LCV District Chairperson for Mubende District on grounds of constitutional disqualification
Decision
Petition dismissed. The 1st 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

Held that a conviction by a competent court within seven years of an election renders a candidate ineligible only if the offence involves moral turpitude. Assault Occasioning Actual Bodily Harm contrary to Section 236 of the Penal Code Act does not constitute a crime involving moral turpitude as the term requires extreme depravity judged by the moral standards of the relevant community. The 1st Respondent's slapping of a colleague after a political disagreement, though criminal, did not shock the community's moral conscience. A pending revision application does not overturn or stay the effect of a conviction by a competent court. Petition dismissed.

Outcome

Petition dismissed. The 1st Respondent's election as LCV District Chairperson for Mubende District upheld.

Facts

The 1st Respondent was elected LCV District Chairperson for Mubende District with the highest votes and was declared winner by the Electoral Commission. The Petitioners, who were also candidates in the same election, challenged the election on the ground that the 1st Respondent was constitutionally 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 within seven years preceding the election. The assault arose from a disagreement over the allocation of motorcycles to sub-counties following a Local Council meeting, during which the 1st Respondent slapped the 1st Petitioner, who was Deputy Speaker of the Council. The 1st Respondent was sentenced to a fine of UGX 1/= and in default to 28 days imprisonment. The 1st Respondent had filed a revision application at Nakawa High Court challenging the conviction, which remained pending at the time of the petition. The 1st Respondent won the election with approximately 75,000 more votes than the 2nd Petitioner.

Issues

  1. What is the effect of the pending application for Revision (vide 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 of the pending revision application 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 — Constitutional Disqualification — Meaning of 'Competent Court' under Article 80(2)(f)
Under Article 80(2)(f) of the Constitution, a 'competent court' refers to one vested with the necessary jurisdiction to hear and determine a matter, and jurisdiction is conferred by express provisions of statute. The Constitution uses 'competent court' and not 'final court' deliberately, meaning the conviction by any court with jurisdiction disqualifies a candidate, regardless of pending appeals or revisions.
Electoral Law — Effect of Pending Revision Application on Conviction
A revision application filed in the High Court against a conviction does not operate as a stay of the conviction or overturn it. The conviction by a competent court remains effective until it has been reversed by order of a higher court. A pending revision application does not bar an electoral petition premised on the existence of the conviction.
Constitutional Law — Interpretation — Moral Turpitude — Definition and Standard
The term 'moral turpitude' refers to conduct that is contrary to justice, honesty, or morality; conduct involving extreme depravity, wickedness, baseness, and vileness contrary to community standards. It encompasses acts of baseness in the duties owed to another or to society, contrary to accepted rules of right and duty. The applicable standard is that of the reasonable man in the relevant community at the relevant time.
Constitutional Law — Crimes Involving Moral Turpitude — Intent and Mens Rea as Essential Elements
For a crime to constitute a crime involving moral turpitude, it must be an 'intent crime' involving dishonesty, fraud, or other reprehensible anti-social behaviour that harms or corrupts others. The commission must entail deliberate intent or at least recklessness with actual awareness of the risk. Where a crime does not demonstrate readiness to do evil or involve a corrupt mind, it does not involve moral turpitude regardless of the definitional elements of the offence.
Constitutional Law — Moral Turpitude — Assault Occasioning Actual Bodily Harm
Assault Occasioning Actual Bodily Harm contrary to Section 236 of the Penal Code Act does not necessarily constitute a crime involving moral turpitude. Whether an assault involves moral turpitude depends on the context, the intent, the mens rea, the knowledge of the gravity of the act, and the moral standards of the given society. A slap following a heated political disagreement, though criminal, does not reach the extreme degree of depravity required for moral turpitude where the community does not regard it as shocking to moral conscience.
Constitutional Law — Interpretation — Liberal Construction of Constitutional Disqualifications
Constitutional provisions limiting the exercise of fundamental rights must be interpreted liberally to give force and life to the words used and to avoid interpretations that would produce absurd consequences. Where two constructions are possible, one restrictive and another favourable, the latter should be preferred if the restrictive interpretation would result in gross injustice.
Electoral Law — Community Conscience as Indicator of Moral Turpitude
The question whether a crime involves moral turpitude is informed by community conscience and public opinion. Where a candidate convicted of an offence is subsequently elected by the same community with an overwhelming majority, this demonstrates that the offence did not shock the community's moral conscience and supports the conclusion that the offence does not constitute a crime involving moral turpitude in that community.

Legislation cited (18)

Cases cited (25)

  • 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
  • Attorney General v Masalu Musene and 3 Others (Constitutional Petition Appeal No. 5 of 2005)
  • King and Brooks [1960], 129, Man. CA
  • Robert Ndeiho and Ogunyu v R [1951] 18 EACA 171
  • De Souza v Uganda [1967] EA 784
  • Musa and Others v R [1967] EA 573
  • R v 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
  • Fred Sewula v Attorney General and Malawi Congress Party (Misc. Civil Appeal No. 32 of 1997)
  • Attorney General v 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
  • 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)
  • Attorney General v Maj.Gen. Tinyenfunza David (Constitutional Appeal 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.

Luyimbuzi and Anor v Bazigatirawo and Anor (HCT-00-CV-EP 44 of 2011) [2011] UGHCEP 10 (21 July 2011)
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.