KITUO CHA SHERIA BLOG

‘‘Giving inmates the vote isn’t just constitutionally the right thing to do; it could also help the country solve one of is most intractable problems.’’

The concept of universal suffrage is defined as every adult citizen capable of voting has the right to vote and the opportunities to vote.

One of the most critical ways that individuals can influence governmental decision-making is through voting. Voting is a formal expression of preference for a candidate for office or for a proposed resolution of an issue.

The Universal Declaration of Human Rights, adopted unanimously by the United Nations General Assembly in 1948, recognizes the integral role that transparent and open elections play in ensuring the fundamental right to participatory government.

The Universal Declaration of Human Rights clearly stipulates under Article 21:

Everyone has the right to take part in the government of his/her country, directly or through freely chosen representatives. Everyone has the right of equal access to public service in his country. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equivalent free voting procedures.

Article 38 of the Constitution of Kenya provides:

1. Every citizen is free to make political choices, which includes the right—
   1. to form, or participate in forming, a political party;
   2. to participate in the activities of, or recruit members for, a political party; or
   3. to campaign for a political party or cause.
2. Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—
   1. any elective public body or office established under this Constitution; or
   2. any office  of any political party of which the citizen is a member.
3. Every adult citizen has the right, without unreasonable restrictions—
   1. to be registered as a voter;
   2. to vote by secret ballot in any election or referendum; and
   3. to be a candidate for public office, or office within a political party of which  the citizen is  a member and, if elected, to hold office.

Is this Right Applicable to Prisoners?

The reading of provisions of Article 21 of the Constitution shows clearly that the intent of the drafters envisaged that no class of persons should be locked out from participating in choosing a government of their choice.There can be no selective application of rights when it comes to citizens of a country.

Therefore it is important to ask just why is it even acceptable to question prisoners’, right to vote?It is wrong to perpetuate the view point that prisoners are a qualitatively distinct group of persons in the outside world and that disenfranchisement arising from this false narrative i.e. taking away the right to vote is a just penalty or “retribution’ upon this class of persons.

As of 2009 Kenya had well over 50,000 prisoners most of whom are eligible to be registered as voters. When the IEBC began the voter registration exercise in the year 2012, its main target was to register 18 million Kenyans. But by the end of the exercise on 19^th December 2012, they had barely reached 15 million despite the heavy campaign for people to go out and get registered.

The reality that prisoners may have an impact on the outcome of the elections is an argument in favour of allowing them to vote rather than against it. All in all our view is that prisoners should be allowed to participate in choosing their government as they are also affected by it.

Situational Analysis: Kenya

The genesis of the push for voting rights of prisoners began soon after the promulgation of the Constitution in 2010 where in a historic judgement; the Court held that prisoners had the right to vote in the referendum.

The Attorney General and concerned authorities were directed to facilitate accessibility of prisons and prisoners’ identification documents to enable the then Interim Independent Electoral Commission to register eligible prisoners. Prisoners however, did not vote.

This   was subsequently followed by a public interest action by the Legal Resources Foundation   in 2012, enjoined as an interested party seeking orders that IEBC registers prisoners in preparation for the 4^th March, 2013 elections.

However, once more, the prisoners did not get to vote as the Court upheld that re-opening registration would have a negative effect on the smooth running of elections.

The court however, faulted the IEBC and other State Organs for not facilitating and promoting prisoners’ right to vote.

Fast forward to 2017 and beyond, it is imperative that the IEBC must guarantee the participation of prisoners.

We at Kituo believe this can only be ensured through a tripartite action plan that includes;

1. Effective voter registration in prisons across the country; policy guidelines must be put in place for future prisoner voter registration and prisoner information in training curriculums/manuals. This goes hand in hand with accreditation of election officials from gazetted prison centres. [IEBC has since announced that prisoners will only be allowed to vote for the presidential seat as they make proposals for regulation of their participation-31^st January, 2016].
2. Stake holder involvement prior to elections and even post elections. Such players include The Kenya Prisons Service, the Registrar of Persons, Civil Society, et cetera.
3. Effective communication mechanism regarding access to voter information, documentation and mode of voting and in which voting centres.

Conclusion…

A loss of rights should not be part of a prisoner’s punishment, and removal from society should not entail removal from society’s privileges including the right to vote.

There is no link between deterrence of crime and disenfranchisement of prisoners.

Samantha Oswago.

Advocacy Governance and Community Partnerships

Kituo cha Sheria.

Conclusion

Also from my point of view prisoners should be given the right to vote but it should have some measures placed on this. As I believe right to vote is a right not a privilege and people are sent to prison to lose their liberty not their identity. Giving prisoner the right to vote can add to their process of rehabilitation as they will not be alienated from the society which they tend to go back in to once out of prison.

I cannot see a link between deterrence of crime an disenfranchisement of prisoners, as pointed out by the prisoner reform service given prisoners the right to vote can a have a number of advantages also it can save thousands of pounds of tax payers money which the government would have to pay out if they choose not to implement the ruling. As Susan argues that

It is ironic that the Government has declared a commitment to promoting universal suffrage,58 is concerned about underregistration among the electorate, and has introduced a new bill this session,59 which, is designed inter alia to improve electoral registration, but at the same time it continues to exclude convicted prisoners.