On August 8, 2017, Kenya made history by allowing prisoners to vote in a General Election. What is little known is that there was a lot of push and pull factors employed behind the scenes that led to the realisation of this right.
From a rights perspective, the fact that some prisoners voted is laudable. However, whether the process was fairly administered is the next big question.
The determination on whether the prisoners’ vote was administered in a free, fair and verifiable manner ought to be measured against various parameters.
It is, therefore, important to document the lessons learnt for the fair administration and management of the future prisoners vote, including in next month’s fresh elections.
The over-arching concern that prisoners ought to be adequately prepared to make informed choices was compromised by many inadequacies.
From the onset, the prisoners vote was rushed. Unstructured collaboration with stakeholders and policy makers was evident from the Independent Electoral and Boundaries Commission.
Considering that the electoral laws were amended more than three times, the legislative process of harmonising the electoral laws and the 2013 High Court judgment was not timely and only took place in October 2016 after the Election Law (amendment) Act was changed to include prisoners.
Three months later, the decision allowing prisoners to vote was communicated and contrary to the 2013 judgment, was limited to the presidential vote only.
To date, it is not clear whether this was a boardroom decision or it had the backing of regulations as mandated by law.
Ironically, the implication of this decision also affected prison officers who registered as voters within the prison facilities and, therefore, voted in the presidential election only.
Stringent timelines also compromised many things. The January 27 announcement allowing prisoners to vote complicated the operational road map that laid out the registration period of seven days between the February 20 to 27.
With barely 20 days to convey this decision to prisoners and ensure that they had the requisite registration documents, time constraints locked out many.
The management of the prisoner vote demonstrated the limited understanding of the limitations of this unique category of voters.
The IEBC Election Operational Plan barely mentioned what steps would be put in place in actualising the prisoners vote.
It did not spell out the roles of the various stakeholders engaged in penal reforms.
There were other structural barriers during the voter verification period. Inmates who had been transferred to other prisons other than the prison of registration were most affected.
Strategically, this period would have been used to ensure prisoners were re-transferred the prison of registration in preparation for election day.
Days to the election, cases of inmates requesting for transfers back to the prisons of registration were recorded whereas for those already released, it was not clear whether they were allowed to go back and cast their votes. From a policy lens, therefore, the timelines granted to prisoners compared to those provided by law grossly disenfranchised them.
The act of registration and by extension, the intention to vote, cast an obligation on the electoral commission to make fair administrative decisions to ensure these aspirations were actualised.
For instance, it was not clear how accessible prison voters were to political parties or whether party agents could be deployed in these facilities.
After the election, the prisoners vote — county number 049 — revealed that 5,528 prisoners had been registered in 103 out of 118 prisons. The number of votes cast was indicated as a block figure of 4,369 out of which 4,131 were valid votes. These numbers were, however, not easily verifiable because the Forms 34(a)s were not traceable on the IEBC website.
The preservation of the integrity of the prison vote was questionable on the basis of inadequate measures taken to ensure that the elections in prisons remained free, fair, credible and verifiable.
Ms Munywoki is the Executive Director, Legal Resources Foundation. [email protected]