Will referendum still be on August 4?

The ruling by the special dispute resolution court that prisoners must vote in the referendum punctured Interim Independent Electoral Commission’s confidence everything was on course, 41 days to D-Day.

In the landmark judgement, IIEC is expected to gazette prisons as polling stations and register inmates within 21 days.

The court, whose decisions cannot be appealed against, also ordered Attorney General Amos Wako to facilitate the inmates with identification documents for them to register.

IIEC Chairman Isaak Hassan was yesterday apprehensive his team’s well-laid out plans for the August 4 showdown between the ‘Greens’ and the ‘Reds’ could have suffered a setback because of the order on short notice to incorporate prisoners in the voter register.

"The court decision may have effects on the referendum date and it is also going to cause a major hardship on the commission," he said. He directly appeared to suggest the referendum date should be changed to allow for the registration of the prisoners.

But in their ruling the judges were categorical given advancement of electronic technology, the registration should not be difficulty or long-drawn. It targets 53,000 prisoners spread out in 90 penal institutions.

The judges of the Interim Independent Constitutional Dispute Resolution Court who made the ruling were Justices Samuel Mukunya, Jamila Mohammed, Scholastica Omondi, Sankale ole Kantai, and Mburugu Kioga. Justice Mukunya read the judgement.

"We do not think that registration of 53,000 inmates or less, in 90 institutions, nearly all in urban centres, can pose such a challenge that can send the electoral process into a fatal spin as alleged by the second respondent (IIEC)," said the judges.

Does not disrupt

They added: "In this era of electronic advancement, this should not pose a challenge in our view. This can be done well in advance of August 4 referendum."


Interim Independent Constitutional Dispute Resolution Court judges, from left, Justices Samuel Mukunga, Sankale ole Kantai, and Lady Justice Scholastica Omondi after they ruled on Wednesday, prisoners vote at the August 4 referendum. [PHOTO: KNA]

They then slammed the door on any attempt to use their ruling to delay the referendum: "We further order that the registration for inmates ... be done in such a way that it does not disrupt the referendum process."

However, the chairman of Parliamentary Select Committee on Constitutional Review chairman, Abdikadir Mohammed, said this was a special case and the orders should not have any effect on the referendum date.

He said the court’s decision was final since Parliament established it to deal with disputes arising from the referendum process.

The judges in their first ever ruling, said there was nothing in law stopping prisoners of sound mind from exercising their democratic right on the ballot even in confinement — their crimes and convictions notwithstanding.

For the first time in electoral history, the judges opened up the voting booths to prisoners, following their conclusion inmates of sound mind, above the age of 18, and have not committed any electoral offence ought to participate in national voting.

"For the avoidance of doubt, the orders made by the court herein relate only to the referendum," Justice Mukunya said, thereby hinting the political honeymoon granted convicts, such as robbers, murderers, sex perverts, and even kidnappers may not extend to electing their preferred presidential candidate in the 2012 General Election.

The court pointed out that Kenya was a signatory to the International Covenant on Civil and Political Rights that allows all citizens of sound mind to vote.

Original jurisdiction

Section 43 of the Constitution disqualifies inmates from voting in the National Assembly and Presidential elections. It does not mention a referendum.

"The framers of the Constitution were free to say that this section applies to a referendum. Had they wanted the referendum to be part of Section 43 of the Constitution, they would have said so," the judge argued. It is Parliament that also gave the court the exclusive original jurisdiction on matters arising out of the constitutional review. Nobody can appeal against the court’s decision.

"Denying penitentiary inmates the right to vote is more like sending messages that undermine respect for the rule of law and democracy than messages that enhance values. The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote,’’ read the 38-page judgement.

The Bench made the decision in a petition filed by Kituo Cha Sheria Executive Director, Priscilla Nyokabi, on behalf of prisoners. Inmates of Shimo la Tewa Prison gave her the right to sue on their behalf, through a letter written by the institution’s paralegals association chairman, Dismus Omondi.

She sued Attorney General Amos Wako and IIEC.

This was after IIEC failed to respond to a petition sent to its Chairman on May 20.

The court said in its judgement that one has powers to seek justice on behalf of a big number of people whose rights are infringed. "Where large numbers of persons are affected in this way, there is merit in one person or organisation being able to approach the court on behalf of all those persons whose rights are allegedly infringed," Justice Mukunya said.

Nyokabi, through her advocates, Laban Osoro and Getrude Angote, had argued she had powers to sue on behalf of inmates whose rights were being violated, and told the judges they had powers to order the electoral body to register inmates.

It was also argued IIEC illegally extended manual registration of voters in the recently concluded exercise. She said prisons were not gazetted as centres to enable prisoners who are only barred to participating in the presidential and parliamentary elections to register.

She argued inmates were in custody and there was no way they could have been ferried to nearby centres to register as voters.

The court was told Nyokabi was representing inmates through Shimo La Tewa Prisons because they have no access to the electoral court.

IICDRC is located in Nairobi with no branches in other parts of the country, where issues touching on the Constitution can be argued and heard.

In the case, the inmates were fighting for their fundamental rights to vote in the upcoming referendum on the Proposed Constitution.

They were seeking orders instructing IIEC to execute its mandate by creating a new voters’ register that includes inmates. They were also seeking an extension of the voters’ registration for the purposes of including them in the historical exercise.

International Covenant

The Constitution of Kenya Review Act provides that the review is guided by respect of the principles of human rights. Article 25 of the International Covenant on Civil and Political Rights, to which Kenya is a signatory, states; "Every citizen has the right to take part in public affairs and to vote."

IIEC’s advocate, Mr Kimani Muhoro opposed the case, arguing it was defective and Nyokabi had no powers to sue on behalf of the inmates. He argued re-opening of registration would cause confusion in the referendum.

"Reopening the voter registration would throw the entire process into a fatal spin as the Constitution of Kenya Review Act puts the review in a straight jacket timetable, which if interfered with would scuttle the process," he said.