Wednesday, February 01, 2017

The Bill of Rights and Voting (Part I)

Do you then agree that [if you] don't vote your right [to] dissent, demand accountability, etc. should diminish? Twitter
The author of that unsubtle proposal to restrict the rights of Kenyans without the due process of the law would have us believe that only those who exercise their adult franchise have the right to dissent against the Government or to hold the Government accountable. Many Kenyans on Twitter responded by arguing that so long as they were taxpayers, whether they voted or not was irrelevant to their right to dissent or hold the Government to account. (I have a problem of reducing the equation of the exercise of these right to being between taxpayers and voters, but that is the subject of another day.)

Why I Don't Vote was a succinct and cogent explanation by one of Kenya's most persuasive writers, known as Owaahh on Twitter, but even he didn't address the central fallacy in the premise: that only voters can exercise certain rights or privileges.

The Constitution of Kenya's preamble, begins "We, the people of Kenya..." It doesn't begin with "We, the voters of Kenya..." (Emphases, mine.) The men and women who voted at a referendum to endorse the output of the Committee of Experts and the Tenth Parliament were all voters, aged eighteen years or older, and, presumably, were all taxpayers of one sort or the other. No child voted at the referendum of 2010. Yet, the voters (and taxpayers) didn't give themselves a new constitution; they gave the people of Kenya a new constitution. Interestingly, "tax" and "taxpayer" are not to be found in the Bill of Rights, the principal instrument in the Constitution that enumerates Kenyans' rights and privileges and defines the relationship between Kenyans and their Government.

Article 37 is the germane provision in the Bill of Rights dealing with "dissent" and "demanding accountability" [from the Government] as may be broadly understood. It states
Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.
Article 37 doesn't refer to every "voter" or every "taxpayer" but every "person" which the constitution defines thus
“person” includes a company, association or other body of persons whether incorporated or unincorporated.
As you can see, person is not limited to "voters" or "taxpayers" either. Furthermore, the only reference to "voters" in the Bill of Rights is in Article 38(3), which states
(3) 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.
From an interpretation of the Constitution alone, without examining the other absurd aspects of the declaration, voting does not confer on the voter any greater privilege except that which is related to voting at an election or a referendum. Just because a Kenyan is not a [registered] voter or refuses to vote at an election or a referendum does not limit their rights or fundamental freedoms one whit!

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