In 2016, Donozio Mugabe Kahonda was elected into Parliament as the Ruhinda South representative, after beating Gen. Otafire. Shortly thereafter, the same was convicted, in 2017, on counts of impersonation and forgery.
He was convicted of forging academic documents which he used to join the Jinja Military Academy in 2001. Further, he had forged his medical examination form, UPDF declaration form and his record of fingerprints. He additionally opened up an account with Post Bank with which – I presume the prosecution managed to prove – he intended to defraud the public.
Subsequently, through his counsel, Kahonda appealed the Jinja Magistrate Court judgment in the High Court. He was admitted to bail and all was quiet for a while, with his appeal pending.
Three years down the road, Kahonda managed to beat his opponent in the recently concluded – fiery too – NRM primaries. Although the electroral result wasn’t contested – thereby impugning the integrity of the Electoral Commission (EC) – there were forces underway.
Citing article 80 of the Constitution, Godfrey Kahonaho (an apparently concerned citizen) filed a petition before the EC to disqualify Kahonda and his victory in the primaries. The article, 80(2)(f), bars anyone that has been, within seven years to the election, convicted – by a court of competent jurisdiction – of a crime related to “dishonesty and moral turpitude”; or, under art.80(2)(g), an offence under any law relating to elections conducted by the Electoral Commission.
As one may notice, Kahonda was convicted three years ago and therefore, Kahonaho’s petition has merit. By all legal indications, Kahonda’s conviction stands unless a court orders a stay of execution or suspension of sentence.
Under Order XLVIII [4] of the Civil Procedure Rules SI 71-1 (CPR-SI-71-1) and rule 6(2) of the Judicature (Court of Appeal) Rules (JCAR), institution of an appeal does not of itself suspend a sentence or stay an execution unless the Court orders so.
Noteworthy, is that the JCAR, under rule 6(1), indicates that in the period granted for instituting an appeal (14 days after issuance of judgment and sentence), or, where an appeal is instituted, until its resolution, a sentence of death or capital punishment is stayed.
The Criminal Procedure Code Act, Cap 116 (CPCA) is silent on the implication of an appeal against a sentence and/or judgment of the court. However, under s40, an inference may be drawn to imply that instituting an appeal doesn’t mean a suspension of sentence; similar to the provisions of the CPR-SI-71-1 and JCAR. The section indicates that one who is not admitted to bail and has a pending appeal is referred to as an appellant prisoner.
It is therefore implied that until an appeal is heard by the appellate court, the previous judgment and sentence stand. That is so unless an application is made to the court to stay the execution of the sentence on account of the pending appeal.
Why go on about these rules? Well, it is important to understand where Kahonda’s conviction stands, de jure, owing to his institution of an appeal in the High Court against the Jinja Magistrate Court decision!
Presently, Kahonda applied to the High Court for an interim order for the EC not to entertain the petition made to it regarding his qualification to participate in the upcoming Parliamentary elections. This application is made on the grounds of his pending appeal.
Logically, it will be granted seeing as a disqualification of Kahonda’s candidature would amount to a loss on his part. A loss that would understandably be detrimental should he be acquitted by the High Court.
I’m no expert on legal procedure thus – as I run the risk of misapplying the law – I will use the civil law principles to conclude on the probable result of Kahonda’s application to the High Court for an interim order.
Order XLIII [4](3) CPR-SI-71-1 lays down factors that may justify a court’s orders to stay an execution or suspend a sentence. Particularly, XLIII [4](3)(a) provides that where the applicant stands to make a ‘substantial loss’ – to the court’s satisfaction – where the order is not made, the court should make the order.
The CPCA does not provide, necessarily, what should satisfy a court to admit bail. However, one may logically conclude that since a court has the power to not admit one to bail, it has requirements that should, to its satisfaction, cause it to, or not to, admit one to bail. Thus, where one is admitted to bail, the court ought to have been satisfied that one is worthy of it.
Naturally, under criminal matters, consideration is given more to the safety of the public and one’s capability to adhere to the law (not to escape from the country) in wait for the resolution of the matter. Thus, it is only optimistically, that I think Kahonda was admitted to bail because, being a Member of Parliament, it was imperative that he kept at work; where the risk wasn’t so great that he might keep offending the law.
I would therefore conclude that, although Kahonaho’s petition to the EC has merit, it may not achieve the desired outcome. Unless, of course, the EC can hear the matter before the High Court decides on the application. Besides that, Kahonda will succeed and the petition before the EC will not be heard until the appeal is resolved. By then, given the nature of procedure such matters undergo, the elections may already have been conducted and winners announced.
I must clarify here, again, that I’m no expert at law. It is still possible that for justifications unknown to my legally inept mind (yet to be equipped with full legal knowledge) the High Court may dismiss Kanhonda’s application. Then, the EC will carry on with hearing the petition. As I noted earlier, the petition has merit, thus, Kahonda will likely be disqualified. Of course, he can always appeal the EC’s decision; in which case, he would apply for another interim order seeking the same as the present one – on and on it will go!
Alternatively, if the prayers of the application are granted, Kahonda may well go on to participate in the Parliamentary elections. If he is elected, he will be a potential convict on the floor of the August House. Needless to say, his seat will be vacant upon conviction – I think.
As you have seen, there is so much conjecture in my conclusion. Nonetheless, it is not baseless! Kahonda may have nothing to fear from Kahonaho’s petition; in the same measure, there may be cause for worry!
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- Joel Kenneth Ndawula is a Student of Law at Uganda Martyrs University Nkozi. He is an inspired writer, the editor and author here; a blogger of sorts.
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