Are the incarcerated human? On their incarceration, what rights, if any, do they give up? In light of the Independent Electoral and Boundaries Commission's recent decision, should the incarcerated vote at an election or a referendum, and if they should in the former, whom should they be able to vote for? (A corollary, naturally, arises: should an incarcerated person be able to stand for an election if he or she is serving a prison sentence that is shorter than six months?)
Many will accuse me of naiveté, but the incarcerated, including those who have been convicted of offences, do not lose their humanity when they enter prisons. Many have been convicted of heinous crimes and their sentences might mean years behind bars, but to deny their humanity is the first step to treating them inhumanely and, thereby, dehumanising ourselves in the bargain. They remain human and which is why, except for the exceptions to the rule, modern prison techniques are designed to rehabilitate offenders before setting them at liberty at the end of their sentences.
For sure, those convicted of offences lose some of their rights and fundamental freedoms. For example, those whose sentences are imprisonment for a term of years or for the rest of their life, lose their freedom of movement and residence. While they are in prison, they also lose their freedom of expression, association and the right to found a family. However, by my interpretation of both Articles 38 and 83, I find no prima facie grounds for denying prisoners the right to exercise their franchise by voting at elections or referenda.
Article 38(3) states,
Every adult citizen has the right, without unreasonable restrictions—
(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.
Article 83(1) states,
A person qualifies for registration as a voter at elections or referenda if the person—(a) is an adult citizen;
(b) is not declared to be of unsound mind; and
(c) has not been convicted of an election offence during the preceding five years.
Article 83(3) states,
Administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election.
If we begin by asking whether or not prisoners are eligible to be registered as voters, we find that the answer is in the affirmative. The relevant qualification for registration in Article 83(1) only excludes persons who have been convicted of election offences in the preceding five years. By my estimation, even the most odious offenders, so long as they have not committed election offences, are eligible to be registered as voters and the onus is on the Commission to make administrative arrangements to facilitate their registration as voters or, horror of horrors, to stand for election if they satisfy the requirements of Articles 99 or 193.
Article 38(3) only provides for "reasonable" restrictions when it comes to the question of whether a person can register as a voter, vote at an election or referendum, or stand for election as a candidate. The reasonableness of the restriction shall be guided by the provisions on the limitation of rights or fundamental freedoms found in Article 24. Clause (1) qualifies limitations by stating that they should be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
It is Fyodor Dostoyevsky who said we can judge the level of civilisation in a society by the way it treats its prisoners and if Kenya wishes to consider itself as a civilised nation, how it treats its prisoners will also be used as a measure of its civilisation. I do not argue that society shouldn't be protected from violent or sexual offenders or that the penalty imposed on criminal offenders undergoing prison sentences should be lessened (though there is a point to be made about the new penalties that Parliament is creating every year). But outside any demonstration that allowing prisoners to vote will harm society, no argument has been advanced that justifies denying prisoners their franchise. If we wish to rehabilitate prisoners before releasing them into society, it is fit and proper that we treat them as part of society. Allowing them to vote is one way of reminding them that after they have paid their debt to society, society, in turn, wants them to assimilate fully. For my money, let them vote.