The right to vote is provided for by the constitution. Let’s begin from the premise that majority of readers appreciate the history of some countries in Africa, Kenya and South Africa for instance. The two share a lot in historical advancement because of the colonial effect and post colonial political development, both relating to the question of leadership, and therefore elections.
In Kenya, the late President Jomo Kenyatta was arrested in October 1952 and charged with managing and being a member of the Mau Mau Society. That time, Mau Mau movement was considered a radical anti-colonial movement engaged in rebellion against British rulers. He was accused together with six others. They have since assumed the name, the Kapenguria Six.
The details of his trial tell a story of a cruel process where the main prosecution witness turned out to have committed perjury. The trial judge maintained secret contact with the colonial Government and was openly hostile to the accused persons.
Jomo Kenyatta was subsequently sentenced on 8th April 1953 to seven years’ imprisonment with hard labour and indefinite restriction. He appealed but that did not yield much. He remained in prison until 1959 when he was taken to a remote part of Kenya, Lodwar.
Even though he faced constant persecution for his stand, his political star kept rising. On May 14 1960, he was elected KANU President in absentia. He could not participate in the elections.
Kenyans then served the colonial Government with almost one Million signatures. They were agitating for his release. The recent Okoa Kenya Referendum experience paints a picture to how getting such numbers can be a daunting task. According to the then discredited IEBC, the opposition was unable to hit the target of one million signatures to change the constitution.
Jomo was released and served as the founding Prime Minister and President of the Republic of Kenya.
The Mau Mau rebellion turned to a blessing for Kenyans. Citizens regained hope because of the self rule. Kenyans of all walks of life became respected citizens and not slaves in their own country.
Raila Odinga, the current opposition chief was in prison for almost a decade in the 1980s. He served part of the term under detention without trial. He also faced house arrest in the hands of an oppressive regime. His book, the Flames of freedom, tells a story of a person who suffered the entire time being moved from Prison to Prison. During those hard times, he was unable to vote. His political voice was curtailed. He nonetheless came out, pushed for democratic governance, the promulgation of a new constitution, and served as Kenya’s Prime Minister.
The international scene is littered with Prisoners who contributed immensely to the growth of the world and their Nations. The late President Nelson Mandela for instance was in jail for almost three decades. He never voted over the time but came out to influence positive change across the World. He also managed to successfully lobby for the voting rights of prisoners in South African.
With the above in mind, the question of whether prisoners should or should not vote ought not to arise.
However it is a point that causes umbrage to some people. They are quick to question how one in his rightful mind would imagine a confirmed rapist, murderer or thief, voting.
Some wonder how law abiding citizens would leave such an important decision of choosing their leaders to ‘criminals’.
To rebut such assertions, let us understand the composition of a Prison community. Even though prison facilities are intended for convicted persons, there are a number of people in there who are yet to be convicted. They are called accused persons. The ideal name for the facility in which they are kept is remand. They are undergoing trial process albeit in custody. For one reason or the other, they are not out on bail. They are in, notwithstanding the fact that they could be innocent.
It is also important to note that the sentencing policy in Kenya, as is the case in other jurisdictions, have both custodial and non custodial sentences. While other Kenyans are taken to prison, others may simply pay fine or asked to sweep the street for a month or days. They may also forgive you depending on your mitigation. Whichever the sentence, such a person remains convicted.
As it is, Kenyans out on bond, despite the offences they face, do vote. Those serving non custodial sentences are voters as well. The two points tell a story of how discriminatory it can be to place a blanket ban on voting rights for prisoners.
The practical Kenyan journey and the law:
Recent developments of prisoners’ voting rights point to a positive direction in our jurisprudence.
Prior to the promulgation of the current Kenyan Constitution, prisoners from Shimo La Tewa went to court and were allowed to vote in the referendum. The process ultimately ushered in the Kenyan Constitution 2010.
At the time, the inmates were represented by Kituo Cha Sheria, a National Non Governmental Organization with its branch in Mombasa. The orders at the time were limited to the referendum.
The very constitution provided an opportunity for them to vote. Riding from the developments, Kituo went back to court in 2012 to open up the voting process to all elections. The organization sought orders for a declaration that IEBC had violated the rights of Prisoners by failing to facilitate the process of voting in Prison. They further made prayers requesting the court to order the elections body to facilitate the voting process and ensure inmates vote.
In his wisdom, Justice Majanja agreed with the organization but suspended the same to 2017 elections. It was reasonably argued that at the point of judgement, the time was so short to open the registration process for the inmates.
While at it, it is important to mention that, the court made a number of pronouncements which are important to this discussion. One such statement was with regard to the interpretation of Articles 38 and 83. While the former provides for political rights to vote, the latter provides the qualification of a voter.
The fact finder in the case stated, ‘the Constitution, with its emphasis on the peoples’ sovereignty, the values on rule of law, equity, inclusiveness, equality, human rights as well as the right to vote guaranteed under Article 38 and the qualification of voters provided under Article 83 does not exclude prisoners from being registered to vote and consequently voting in an election.’
He proceeded to state, ‘Court directs the IEBC to facilitate, in conjunction with the prison and other government institutions, the exercise of the right of prisoner who have already registered to vote to do so in the general elections.’
What happens elsewhere?
I was impressed that we are not doing so bad compared to other jurisdictions. David Cameron was still struggling with the idea of Prisoners right to vote during his term as the British Prime Minister. He exited with Brexit, you’ll remember.
Some states in America are still embroiled in the old stories of Ex-Felons. Just to break this down, if you commit an offence termed as a felony and you are convicted for it and serve your sentence, you are referred to as an ex felon. Now for a very long time, until 2016, such people did not enjoy the privilege to vote. Yes, even after serving your sentence. Virginia passed that bridge in last April (2016) with a sweeping executive order which allowed the ex-felons an opportunity to cast their vote.
Many nations, including Denmark, Sweden and Switzerland, have no form of electoral ban for imprisoned offenders. In others, however, severe restrictions make it very difficult in practice for offenders to vote. In Cyprus, for example, an inmate must happen to be out of prison on the day of the elections, and in Slovakia, prisoners can legally vote but no provision is made to allow them to do so.
Other advanced democracies are now recognizing the right of prisoners to vote. The European Court of Human Rights held in 2005 that Britain’s blanket ban on prisoner voting violated the democratic rights of its prisoners. It is reported that the court reasoned that the government could punish citizens by revoking their liberty—but could not uniformly revoke the most central right of that citizenship, the vote.
What are the developments in Kenya since the judgement was made?
In the year 2016, when the window for mass voter registration was provided, the inmates were not accorded the opportunity to register. The prisons department and IEBC had not placed a policy document and necessary logistics to polish the process. A task force was reportedly put in place to spearhead the process.
The two institutions were grappling with how the inmates would vote, especially the question of voting for other political seats. The presidency was granted. Many Kenyans prefer to vote either where they willingly stay or their places of birth. Therefore expecting them to vote in areas where prison facilities are placed may not be their preference.
It is common practice in Kenya that inmates can be taken to any prison depending on the suitability of the sentence. While some are earmarked for maximum prison facilities, others serve very short sentences while another group which do not pose threats are kept in friendly facilities.
On 27th January 2017, IEBC held a press conference where they outlined a number of issues they intend to do in order to facilitate prisoners voting rights. They stated that all Prisons will be gazetted as polling stations and that upon registration, the inmates will only vote for the Presidential seat. This is the closest we have come to ensuring this important right is safeguarded.
IEBC is therefore ready to register and facilitate prisoners to vote for presidential system. As to whether the same offers them adequate opportunity to choose their representatives is another challenge.
It has been my point all through that the voting rights of prisoners are necessary, not just because the law dictates but because of the ensuing benefits expected to accrue to the Prison Community.
Whenever one is put in prison, it should be a facility of reform. Such reforms are not just to the inmates’ physical appearance but also their attitude and the facilities themselves.
Even though candidates for political offices are known for their promises, it is a fact that they often provide hope to the people. Their speeches while talking to the masses, and in this case, the prisoners, will be laced with messages of inclusion, eradication of poverty and crime as well. Such topics could be key for persons interested in reforms.
In the event that such campaigns are well structured, the competing leaders would listen to prisoners and, for instance understand why the policy on power of mercy ought to be changed; why appeals from prisons are slow and the need to speed them up. The conversation may most likely influence policy change for improvement of prison centres.
Beyond the two, I happen to have visited one of the Prison facilities in Coast. I noted significant progress in there. When I enquired, they reported that the welfare department of the prison had worked closely with the office of the Governor of the said county. That in itself was an indication that the Prison voice will replicate to their development and improve the facilities.
Uncle Moody Awuori, the former vice president of the Republic of Kenya is a respected name in Kenyan Prisons. The inmates and wardens present at the time when he served as the Vice President and Minister for home affairs. That in itself is a reflection that inmates will vote a person of equal calibre who sells similar policies to them.
What role can we play in the process?
The process of acquisition of voter registration is a long one. It must be facilitated with an identity card and the presence of the intended voter.
It is emerging that so many eligible prison voters do not have identity cards. In Shimo La Tewa for instance, out of a population of almost 2000 people, less than 100 possess identity cards.
It is important that the Department of National Bureau of Registration assists in ensuring these people have identification cards. In order for them to get these identity cards, there are other important documents needed. Such documents include a letter from the chief, copies of their parents’ identification cards or proof of death of the parents. Their respective families ought to bring the above to them.
To this extent, the struggles points to a situation where monitoring of the entire voter registration and voting is key for the prisoner’s voting rights to be enjoyed. Government agencies must be assisted. Those in charge of the exercise must also act in good faith. As you visit a friend in these facilities, ask them if they will vote or if anything is being done towards that end. In places where the exercise is not taking place, verify and liaise with IEBC to ensure prisoners vote.
It is indeed necessary for all to stand against this temporary “civic death” placed on fellow citizens just because they are confined in their country. Civic death is the suspension of normal rights as citizens while they are behind bars. It is wrong and illegal.
BY ZEDDY ADIKA
This article appears in our weekly digital law magazine, The Deuteronomy Vol 2, Issue 2 of February 9th 2017
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