A dispute resolution court on Wednesday allowed prisoners to take part in the August 4 referendum, sparking fears it could be delayed.
Lawyers for the Interim Independent Electoral Commission (IIEC) warned of a possible delay immediately after a five-judge bench ordered that inmates be registered for the referendum within 21 days.
IIEC lawyer Kimani Muhoro said the ruling could be a major setback. He said printing and distributing registers to prisons and retrieving them for verification might go beyond the August 4 date set for the referendum.
On Wednesday night, the IIEC was still studying the ruling. However, organs driving the constitution review allayed the fears, saying inmates could be registered in time for the vote.
Parliamentary Select Committee boss Mohammed Abdikadir said the ruling was limited to prisoners and would not affect the ongoing verification exercise.
Committee of Experts director Ekuru Aukot said the referendum date was set by the law and could not be changed.
“This (prison) is a restricted constituency and I would, therefore, expect that registration and verification would be easy as the prisoners will not be moving from one place to another,” said Dr Aukot.
In the landmark ruling, the Interim Independent Constitutional Dispute Resolution Court gave the prisoners a reason to smile by allowing them, for the first time, to exercise their voting rights.
Justices S. Mukunya, Sankale ole Kantai, Scholastica Omondi, Jamila Mohammed and Mburugu M’Nkanata, however, restricted the right to inmates of sound mind who have not committed election offences.
Attorney-General Amos Wako was ordered to open up the jails for IIEC staff to register inmates. The prisons will be gazetted as polling stations.
The judges’ decision arose out of a case filed by inmates against the IIEC, challenging their exclusion from the process. The judges disagreed with IIEC’s fears of a delay, saying the registration of about 53,000 inmates in 90 prisons could not disrupt the electoral process.
“In this era of electronic advancement, this should not pose a challenge. This can be done well in advance of the August 4 referendum,” said the judges.
Shimo la Tewa Prison inmates in Mombasa said in their suit papers that the constitution barred them from voting in general elections, but not in a referendum. They said their exclusion would be unconstitutional and a violation of their rights.
The inmates said in the landmark case filed through Kituo Cha Sheria, a human rights legal aid group, that the referendum was about a new constitution and all Kenyans should take part.
“Denying prisoners the right to participate does not in any way act as a deterrent to the commission of a crime,” the inmates said. They also said that some of them were awaiting trial or being kept in detention because they could not raise bond.
In response, the IIEC asked the court to dismiss the case, saying it did not have the jurisdiction to deal with it. The IIEC also said the case was time barred as it was brought after registration was closed.
It added the case failed to prove that a specific person wishing to be registered had been turned away. Kenya now joins countries like South Africa and Canada, which allow prisoners to vote.