Kenya: Prisoners Push for Right to Vote in Constitution Referendum

Kenya: Prisoners Push for Right to Vote in Constitution Referendum

Reported by allAfrica.com on Monday, 31 May 2010

A move by inmates at Mombasa's Shimo la Tewa Prison to petition a court to allow them to vote in the August 4 referendum on the draft constitution could set a precedent for future participation of convicts in national decision making.

A move by inmates at Mombasa's Shimo la Tewa Prison to petition a court to allow them to vote in the August 4 referendum on the draft constitution could set a precedent for future participation of convicts in national decision making.

Section 43 (c ) of the current constitution disqualifies convicts from voting in a presidential, parliamentary and civic elections but the convicts have told the Interim Independent Constitutional Dispute Resolution Court that the section of the law does not bar prisoners from participating in a referendum.

If the case goes the way of the convicts - it could extend voting rights to Kenya's 108,000 inmates held in the country's 87 prisons.

And if the convicts win the case, the IIEC would be forced to seek more funds from Treasury to enable them re-open the voter register to enlist the prisoners and issue them with voters' cards besides arranging appropriate voting venues for them at the referendum day.

Curtailed rights

A notice in the current Kenya Gazette indicates that the convicts of Shimo la Tewa have asked the Interim Independent Constitutional Dispute Resolution Court - a creation of the constitution of Kenya Review Act of 2008 to determine whether prisoner's right to participate in a referendum is curtailed by section 43 (c) of the constitution which explicitly states that people detained in lawful custody cannot vote in general elections.

Through Ms Priscilla Nyokabi Kanyua, the director of Kituo Cha Sheria - a paralegal organisation based in Nairobi, the convicts have demanded that the voter registration exercise be reopened specifically to allow them to register as voters and participate in the referendum.

The referendum is intended at presenting the draft constitution.

Voting in August 4 would be Kenya's second referendum since independence.

The first referendum in 2005 ended in the disapproval of the then draft constitution.

"Was IIEC right to exclude prisoners from its voter registration exercise given the mandate under section 41 (d) of the constitution of Kenya to undertake fresh registration of voters and create new voters register for the upcoming referendum without expressly prescribed limitation to exclude any category of people" says Ms Nyokabi in a petition she filed on behalf of the Shimo La Tewa prisoners.

This is the first dispute facing the Interim Independent Constitutional Dispute Resolution Court, which was sworn in by President Kibaki in January.

Other judges

Justices Michel Bastarache of Canada, Ms Unity Dow of Botswana and Alistair Cameron of the United Kingdom form the Bench.

Other judges include Justice Samuel N. Mukunya, Justice Ms. Violet Khadi Mavisi, Justice Ms. Scholastica Omondi, Justice Ms. Jamila Mohamed, Justice Sankale Ole Kantai and Justice Mburugu M'Nkanata Kioga.