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Opinion & Analysis

Should prisoners be allowed to vote?

Kamiti Maximum Security Prison in Nairobi.  Accused capital offenders at the prison have written to the Chief Justice accusing State counsels and lawyers defending murder suspects of demanding bribes from them. Photos/FILE
Kamiti Maximum Security Prison in Nairobi. Accused capital offenders at the prison have written to the Chief Justice accusing State counsels and lawyers defending murder suspects of demanding bribes from them. Photos/FILE 

One unique thing about Kenya is the obsession with politics.

Years before the next elections, politicians are crisscrossing the country campaigning.

At least four politicians have declared their presidential hopes.

However there is one area all the presidential hopefuls have neglected, the loads of untapped votes lying idle in prisons.

The number of inmates in Kenyan prisons runs into the tens of thousands.

Recent attempts at reforming prisons are laudable; but the matter of prisoner’s right to vote has never been cracked in Kenya. Should prisoners have the right to vote?

The denial of civil rights to convicted felons has ancient origin in the common law regime.

It is a product of the idea that the commission of an offence divests a person of property and legal rights.

Felons who did not suffer death by execution would nevertheless suffer ‘civil death’, the idea of which was to emulate the results natural death would produce.

The United States takes matters a step further, even after serving time; ex-convicts are still disenfranchised from voting.

According to a professor of behavioural sciences at the University of Michigan, Prof Ken Resnicow, this is a regressive policy that should be scrapped and not emulated anywhere.

He explains that by allowing convicts and ex-convicts to vote may, by decreasing their sense of social alienation and disenfranchisement, reduce recidivism.

“This argument may be particularly cogent for first time offenders and those committing minor offences. Although, for repeat offenders and those committing more serious antisocial crimes, society may be more reluctant to provide such offenders the right to vote, perhaps even at the expense of alienating an already disenfranchised population which might have many of its people in prison,” he says.

The US has the highest number of documented prisoners in the world, according to the International Centre for Prison Studies at the School of Law, King’s College London.

Many of these prisoners are from minority groups.

The dean of law at the University at Buffalo Law School in New York, Prof Makau Mutua, delves deeper into the rights of prisoners to vote and approaches the issue as a human rights concept.

Section 79 of Kenya’s Constitution states, that “except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication he to the public generally or to any person or class of persons) and freedom from interference with his correspondence.”

Prof Mutua argues that from this premise, a comprehensive notion of human rights presumes that the default position is that rights should be granted not limited, whenever possible.

He gives an example of freedom of speech.

According to Mutua, the presumption is that people are free to exercise their right of speech.

Censorship is therefore an extraordinary restriction which can only be justified with a very high bar.

Therefore when there is a tie between the speaker and the censor, the win goes to the speaker, not the censor.

“This inherent logic of human rights assumes that the state cannot take away a basic right --such as the right to vote-- unless there is a compelling and legitimate aim that would be harmed more by allowing the right,” he says.

Accordingly, he does not see the harm in letting prisoners vote.

In a ground breaking judgment, the European Court of Human Rights (ECHR) dealt with prisoner’s right to vote in the United Kingdom in the case of Hirst v. United Kingdom.

That case was concerned with the interpretation of Article 3 of the First Protocol to the European Convention of Human Rights, which reads: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” However, the United Kingdom had a provision to the effect that: “a convicted person during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local government election.”

Prof Mutua supports the Canadian position. “In Canada, prisoners are allowed to vote. Using this reasoning, one might want to ask what legitimate purpose is being served by disenfranchising prisoners. What harm do their votes cause? Why is democracy not enhanced by their participation in the electoral process? Is there any legitimate State interest in restricting their vote? Aren’t they already being punished enough by being in prison?” poses Mutua, “If you look at all these questions -- and then apply constitutional and human rights lenses -- you will see no legitimate justification for denying prisoners the right to vote.”

Whether prisoners in Kenya should be allowed to vote however lies squarely on the legislature and the people of Kenya.

It should however not be lost to Kenyans that not all convicts are guilty as pronounced and they too are still human beings.

Mr. Muriuki is an Advocate of the High Court of Kenya.

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