All eligible Kenyans are entitled to vote in the 2017 General Election. The Independent Electoral and Boundaries Commission (IEBC) has recently indicated its desire to register at least four million new voters from February 15, 2016.
What is little known is that prisoners, who comprise an average of 50,000 persons, have a right to vote.
The genesis of the push for voting rights of prisoners began soon after the promulgation of the Constitution in 2010 where in a historic judgment, the court held that prisoners had the right to vote in the referendum.
In that decision, the Attorney-General and concerned authorities were directed to facilitate accessibility of prisons and prisoners identification documents to enable the then Interim Independent Electoral Commission to register eligible prisoners. The court, being of limited jurisdiction, limited its finding to the referendum. Prisoners, however, did not vote.
The second attempt was in 2012 when the Legal Resources Foundation, acting in public interest, enjoined as an interested party seeking orders that the IEBC registers prisoners in preparation for the March 4, 2013 elections.
Time worked against the petitioners and the court upheld that reopening the registration, which had closed by then, would have devastating consequences on the smooth running of elections.
In public interest, the matter was put to rest. The court, however, faulted the IEBC and other State organs for not facilitating and promoting prisoners’ right to vote. It obligated them to ensure that prisoners registered to vote and did indeed vote in future elections and referenda.
Based on the chronology of events above, it is incontestable that prisoners’ right to vote has been violated since 2010.
The next General Election is here with us. The IEBC has had five years to address any setbacks and, therefore, set the stage for credible elections in 2017. On the other hand, eligible prisoners have waited in earnest for five years to participate in this historic event. Their right to vote must be realised this time round.
Why is the prisoners’ right to vote important? It is their fundamental right. Any person is a potential prisoner. Many Kenyans, whether guilty or not, have found themselves entangled in the justice system. The voting period is no exception.
In fact, going by statistics from the Kenya Prisons Service, sampled randomly from 26 prisons, in March 2013, there were 5,151 convicts and 2,343 remandees while soon after the elections in April 2013, these statistics increased to 9,045 convicts and 9,821 remandees.
Sixty two per cent of new remandees were young people charged with all manner of offences, not necessarily election offences.
As we count down to the 2017 elections, the IEBC must guarantee the participation of prisoners. It needs to consider the following three steps.
First, a responsive and enforceable legal framework specific to prisons must be in place. This includes putting in place policy guidelines on prisoner voter registration and prisoner information in training curriculums.
Accreditation of election officials from prison gazetted centres is equally important. Second, there ought to be a responsive communication mechanism that enhances access to voter information, voter documentation and physical access to voting prison centres because prisoners lack sufficient access to print and electronic media.
Third, active and robust stakeholder involvement and engagement before, during and after the elections must be done. In this case, the involvement of both State and non-state actors such as the Kenya Prisons Service, Registrar of Persons, Probation Department, media, prisoners and the civil society .
There is no legitimate governmental purpose that would be served in denying prisoners their right to vote.
Ms Munywoki is executive director Legal Resources Foundation Trust