Court: Prisoners to vote in polls

By PAUL OGEMBA pogemba@ke.nationmedia.com  ( email the author)
Posted  Monday, January 21  2013 at  15:37

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Prisoners who registered as voters prior to their incarceration will participate in the forthcoming General Election, a Nairobi court has declared.

Justice David Majanja ruled that voting is a fundamental right of every individual and it will be unconstitutional to deny a prisoner the right to choose their representatives by virtue of being behind bars.

“Prisoners are vulnerable and marginalised members of the society and their right to elect leaders of their choice is immediate and not progressive. The Independent Electoral and Boundaries Commission (IEBC) must ensure these rights are protected,” said Majanja.

He directed the IEBC in collaboration with prison authorities to put in place mechanisms and set up polling stations within prisons to ensure the prisoners cast their votes on March 4.

Justice Majanja also declared that the electoral commission violated the prisoners’ rights by failing to register them as voters but declined to order their registration saying that it would be unrealistic given the short time limit remaining before the elections.

He however directed the electoral commission to immediately set up registration centres in prisons after the elections and register all eligible prisoners to enable them participate in subsequent elections.

Justice Majanja made the ruling following a petition by Kituo Cha Sheria seeking to compel the electoral commission to register prisoners as voters and make necessary arrangements to enable participate in the elections as they did in the 2010 constitutional referendum.

The lobby accused the IEBC of violating the prisoners’ rights by declaring that it will be impossible to register them as voters and sought an interpretation of Article 38 which gives every Kenyan irrespective of status a right to register and participate in the country’s elections.

The judge upheld the lobbyist arguments that the commission’s exclusion of prisoners from voter registration exercise was illegal but declined the request to order the commission to register them.

“Court orders must be issued in a manner that sustains democracy towards peaceful elections. Reliefs to be granted must be practical to ensure rights are respected which is not the case if the orders are given,” said Majanja.

The lobby argued that the commission’s decision not to register prisoners went against the national values and principles of governance including equity, social justice, inclusiveness, human rights, and non-discrimination.

Justice Majanja dismissed the commission’s defence that it had established polling centres near prisons to facilitate voting saying that the position was inadequate to deal with the concerns raised by Kituo Cha Sheria.

He also disagreed with IEBC’s submissions that they could not access prisons due to legal issues involved ruling that it was their obligation to liaise with other state organs to ensure that the rights of prisoners to take part in the elections is respected.

He noted that prisoners are marginalised group with no media access to information adding that the lobby group was right in presenting their disappointment at the commission for not showing any attempt they made to register prisoners.