THE PRISONER’S RIGHT TO VOTE

THE PRISONERS RIGHT TO VOTE; VINCE AJUMA “The end of law is not to abolish or to restrain, but to preserve and enlarge freedom. For in all state of created beings capable of law, where there is no law, there is no freedom” -JOHN LOCKE Abstract Prisoner’s right to vote it has been very debatable topic in the world, in difference point of views every country adopt approach when dealing with the prisoner’s right to vote, it historical background of such a country, or it may be approach and modes of punishment of given country. modern it own can be political Thus, there are some country which allowing prisoners to vote Kenya, South Africa, Canada and there are also other states which prohibites prisoners to vote United Kingdom, Austria, Italy and india. Hence, Such as right seems be recognized and strengthen by the Human Right, Under European Convention on Human Right article 3 of Protocol No 1and in number of leading case for example in the Italy(Scoppola (No. 3) )from United Kingdom(Hirst (No. 2) THE PRISONER’S RIGHT TO VOTE Universal human suffrage is the right of any person above the age of majority to vote but this right is ceased for a number of reason for example person with mental disorder cannot vote, a Foreigner is not allowed to vote in none native country, ones living in Abroad1, a person of minor age also cannot vote and prisoner also not allowed to vote. The voting right is provided by Universal human rights declaration article 21, Apart from that Right to vote is recognized at international level by being mentioned in International legal instruments therein, such as the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, but sadly speaking Many states in the world do not allow prisoner to vote simply because prison taken as a punishment to them. Currently as the world influenced much by the application of the human rights and Beckman, L. (2008) “Who Should Vote? Conceptualizing Universal Suffrage in Studies of Democracy” Democratisation, Vol. 15 No.1, p. 30. 1 THE PRISONERS RIGHT TO VOTE; VINCE AJUMA democracy it seemed that the issue of the right of prisoners to vote to debate in number of the country in the world. Literally, Prisoner is a person legally held in prison as a punishment for crimes they have committed or while awaiting trial. In Tanzania the prisoner is not allowed to vote as Article 5(2)(c) 2 the constitution stated inter alia National Election Act section 11(1)(c)3, but this increasing of the movement in the world influencing number of state to allow prisoner to vote started to make Tanzanian aware and to have some of critique on this issue. The following are the two questions which can arise when dealing with such as ban 1) It is reasonable to deprive prisoners their right to vote? 2) The disfranchisement has any impact to the development of the country? Before proceeding it’s better to see how the situation it’s in other state about allowing prisoner to vote; Restrictions on Prisoner-voting in Other Jurisdictions 1. Africa South Africa South Africa is well known as the one among the richest and well developed country in the world, it is also known by its historical background when African was struggling against the whites, also it remembered that those struggle for democracy for many years being a great influence in their development of democracy and Human right in the state against Apartheid policy4. The Universal Human suffrage also was influenced by the historical background of the South Africa, the Universal Human suffrage has got basis from the Constitution of South Africa, since 1994 in the democratic elections prisoners were permitted to vote. Constitution of United Republic Of Tanzania(1977) CAP 343 R.E 2019 4 Muntingh, L and Sloth-Nielsen, J. (2009), “The Ballot as a Bulwark: Prisoners’ Right to Vote in South Africa”. In Criminal disenfranchisement in an international perspective. Ewald, A. and Rottinghaus, B. (Eds). Cambridge University Press. p. 230. 2 3 THE PRISONERS RIGHT TO VOTE; VINCE AJUMA In the general election of 1999 the Independent Electoral Committee (IEC) the committee refused to take responsibility of registering prisoners because of their imprisonment also commission argued that it works only under the will of the constitution and the constitution not mentioned the prisoners right to vote and apart from that commission revealed the difficulties in the preparation and logistic of registering prisoners, such as issues was discussed much in the case of August and Another v. Electoral Commission and Others when applicants tried to challenged the commission in the Court of constitution stated that both the Constitution of 1996 and the Electoral Act of 1998 allowing prisoners to vote the constitution court decided that;……….. Also in another very interesting case relating to the prisoner’s right to vote in South Africa, in 2003 Government submitted to the parliament the amendment of Electoral law Act which was intended to deprive the right to vote from some of prisoners thus The National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) and two sentenced prisoners filed an urgent application to declare the amendment unconstitutional and invalid given that this amendment clearly posed a limitation on prisoners’ right to vote. This matter entertained in the constitutional court in the case of Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and Others, the court decided that such as amendment was unconstitutional and valid hence such as amendment was dismissed. Kenya In Kenya it is the first East African country where by prisoners are allowed to vote, since independence Kenyan Prisoners were not given the right to vote, the disenfranchisement of prisoners were originated from the former Kenya’s constitution5 , In 2007 Kenyan experienced political instability which led to the two competitive political parties to agreed to share power and to draft the National Referendum in 2010. Kenyan Prisoners at Shimo La Tewa brought to the Kenya High Court on behalf of prisoners in regarding the rights of prisoners to vote in the upcoming referendum. as the court ruled that they should have the right to the next election and the prisons can be used as the polling station during election. 5 1963 THE PRISONERS RIGHT TO VOTE; VINCE AJUMA Hassan Omar Hassan member of The Kenya National Commission on Human Right6was on the view that; “the punishment is supposed to be reformative and when people are incarcected they lose their freedom but other right should stay” 2. Europe In Europe there are many states are in different view on the issue of allow the prisoner to vote as European Court of Human Right direct, this made this huge democratic debate to be very interesting when you dealing with. There are some Countries where prisoners not allowed to vote for Example United Kingdom, Armenia, Bulgaria and Hungary, Liechtenstein. But in some of country aforemention there were movement for some changes in their law relating to the prisoner disfranchisement. Apart From that, in other hand, unlikely there are other country which allow the prisoner to vote mostly in former communist states for example Albania, Bosnia and Herzegovina, Croatia, Czech Republic, Denmark, Finland, Ireland, Latvia, Lithuania, Macedonia, Montenegro, Serbia, Spain, Sweden, Switzerland, and Ukraine. United Kingdom The situation is different in United Kingdom whereas the prisoner not allowed to vote, this debate led to the occurrence of huge controversy within the United Kingdom, this saga arose when a former inmate John Hirst sued the United Kingdom by not giving prisoners the right to vote which is against human right, john Hisrt was on the view and believing that; “every prisoner should have the right to vote as this is part of our human rights regardless of their crime, circumstance or sentence” Thus after hearing both sides in the case of Hirst v United Kingdom(No.2)7the European human right court held that; “Automatic and indiscriminate disfranchisement off all serving prisoner, irrespective of the nature or gravity of 6 7 (KNCHR) [2005]ECHR 681 THE PRISONERS RIGHT TO VOTE; VINCE AJUMA their offences, is incompatible with Protocol No. 81” article 3 of In response to what European Court of Human right decided the United Kingdom under the reign of David Cameroon , He, the Prime Minister by then David Cameroon was completely against as he argued that “giving prisoner the right to vote would make him sick”9. On another occasion when he asked about this huge democratic debate the David Cameroon commented that; “No one should be under any doubt-prisoner are not getting the vote under this government”10 As government taken this saga to the parliament and, on 10th February 2011, parliament held a vote on whether the prisoner should be allowed to vote?, the result was many of the member of parliament criticized the prisoner to be given the right to vote, out of 234 only 22 was on the view that prisoners should be given such as right but the rest of 212 voting against the prisoner to be allowed to vote. But recently11, in 2019 under the new laws may extending the voting right of prisoners, for those who serving a sentence of less that twelve months 12. Austria As it for many states also Austria was one among the country which did not allowing a prisoners to vote but as the matter of fact, the history show that there was movement which going against the principle of disfranchisement, thus also it led the voting right of prisoners to be very huge and interesting democratic debate. The activist against such as ban was succeed to gain momentum the high court of Austria dismissed the former federal government’s 2006 blanket ban on prisoner voting in the case of Roach v Commonwealth13, regardless such as decision but the high court also upholding the 2004 laws that restricted voting to those prisoners serving a sentence of three or more years14. But later on disfranchisement come to categorizing not only those who serving or confined for three year or more than but also the European Convention on Human Right, Protocol 1 , Article 3 http://www.lawteacher.net/free-law-essays/.php (accessed in May 30, 2021) 10 http://www.blogs.kcl.ac.uk/kslr/?p=409 (accessed in May 30, 2021) 11 http://www.petition.parliament.uk.help (accessed in May 31, 2021) 12 http://www.bbc.com (accessed in May 26, 2021) 13 2007 14 Lisa Hill and Comelia Koch, the voting Rights of Incarcerated Australian Citizens ,university of Adelaide. 8 9 THE PRISONERS RIGHT TO VOTE; VINCE AJUMA prisoners who committed serious crime never allowed to have the right to vote such as crime including corruption, treason, crimes against military, crimes against genocide, and crimes against humanity. In recent years the European Human right court in the case of Flodi case, the issue of the “blanket” disfranchisement of certain classes of criminal was decided as the violation of European Conviction on human right. The applicant was a prisoner serving a life sentence for murder in Austria who, under the National Assembly Election Act such as prisoner not allowed to vote since because this Act provided that: “A prisoner serving a term of imprisonment for more than one year for an offence committed with intent not allowed to vote – had been disenfranchised”. ’ Thus The European Court of Human Right held that; “ there had been a violation of Article 3 of Protocol No. 1. It observed that the provision for disenfranchisement set out in section 22 of the National Assembly Election Act was more detailed than the provisions that had been applicable in the case of Hirst (n° 2) v. the United Kingdom. It did not apply automatically to all prisoners but only to those given a prison sentence of more than one year for offences committed with intent. Nevertheless, the provision in question did not meet all the criteria the Court had set out for a measure of disenfranchisement to be in conformity with the Convention, namely that the decision on disenfranchisement should be taken by a judge, taking into account the specific circumstances of the case, and that there must be a link between the offence committed and issues relating to elections and democratic institutions. These criteria served the purpose to establish disenfranchisement as an exception, even for convicted prisoners. However, no such link existed under the statutory provisions under which the applicant had been 15 disenfranchised” . Thus, according to such as decision it prove that not every prisoner in Austria cannot vote, meaning that if you are serving a sentence of less than three years, serving a sentence of periodic detention, or on 15 Frodl v Austria, App. No. 20201/04,Eur.Ct. HR 3,15(2010) THE PRISONERS RIGHT TO VOTE; VINCE AJUMA parole you are entitled to vote since you are Austrian and you are on age of majority which is 18 years old you can vote ,however a prisoner seving more than three years not allowed to vote ITALY The prisoners serving more than five years were not allowed to vote in Italy also even after serving of such as punishment not allowed to vote and those serving life sentences also not allowed to vote, this matter led to the critics on why there were some restrictions on voting for a prisoners?, is it right according to the Article 3 of Protocol No. 116 thus this debate was find it climax when life sentencing prisoner tried to challenging the Italian legislation to the effect that they may seen to breach the Article 3 of Protocol No. 117 In the case of Scoppola v Italy(No. 3) in deciding this matter a the Grand Chambers made reference from the case Hisrt v The United Kingdom(No. 2), because in Italy not every prisoners is not allowed to vote hence that Italian law not breached the Article 3 of Protocol No 1, but the grand chamber made clear that states are free to choose different means in fighting against Crimes thus disfranchisement to the prisoners whose serving life sentence on the view of the grand chamber was one among the ways of combating the crimes, apart from that the Grand chamber differentiate between restriction of prisoners right to vote in Italy(Scoppola (No. 3) )from United Kingdom(Hirst (No. 2) ) when Unied Kingdom was interested in this case, it was stated that saying that United Kingdom in the Hirst case restrict all kind of prisoners to vote is quate different to Italy which allow some prisoners to vote regarding to the length of sentence and nature of the crime. TURKEY In Turkey the condition is the same as many European countries refusing to give prisoners their right to vote, unlikely to other countries ban on convicted person in Turkey was never looking neither on the kind of offence commited nor on thev length of the years served in the 16 17 European Convention on Human Right ibid THE PRISONERS RIGHT TO VOTE; VINCE AJUMA prison , recently there are some judgments from the European Court of Human Right which may create the way to the prisoners to vote in Turkey but still up to day there is no any changes in Turkish law on allowing prisoner to vote. In the case Soyler v Turkey18 the applicant was businessman convicted and sentenced five year for cheque fraud in 200719 he was released on probation two years later. Prior to the General election on 2012 he Mr Ahmet Atahur Soyler (the applicant) was unable to vote simply because his voting right was ceased when convicted., he decided to challenge such as disfranchisement on the European Court of Human Right , the applicant alleged that the deprivement of his right to vote was in contrally and in violation of Article 3 of protocol No 1 of the convention20 The Court held that; “there had been a violation of Article 3 of Protocol No. 1. It found in particular that the ban on convicted prisoners’ voting rights in Turkey was automatic and indiscriminate and did not take into account the nature or gravity of the offence, the length of the prison sentence or the prisoner’s individual conduct or circumstances. The application of such a harsh measure on a vitally important Convention right had to be seen as falling outside of any acceptable room for manoeuvre of a State to decide on such matters as the electoral rights of convicted prisoners. Indeed, the ban was harsher and more far-reaching than any the Court has had to consider in previous cases against the United Kingdom, Austria and Italy (see above, the cases of Hirst (no. 2), Frodl, and Scoppola (no. 3)) as it was applicable to convicts even after their conditional release and to those who are given suspended sentences and therefore do not even serve a prison term” In response to that judgement in December 2018 The Erdogan Government through Turkey’s Supreme Board of Election ruled that all prisoners who are imprisoned in the district which they were registered [2013]App No 29411/07,pg26.41 ibid 20 Op.cit 18 19 THE PRISONERS RIGHT TO VOTE; VINCE AJUMA before conviction they are allowed to vote in such as districts21. But till now there is no any strong legislation which empower prisoner to vote in Turkey. 3. America American continental in divided into two parts, southern parts and northern part all country belong to the together having different legal system, thus also there are many different rules governing each states for this reason the right of prisoners to vote it is still debatable amongst the countries and not uniform. United States of America Right to vote it is one amongst the right which every adult should enjoying when they reaching given year(age of majority) , but not every person in the United States of America allowed to vote for example prisoner and ex-felon they are not allowed to vote simply because of their conviction. In 1974 in the case Richardson v. Ramirez, the court ruled that prisoners could be barred from voting without any issues of violating the fourteenth amendment22 , this decision acted as the catalyst to the disfranchisement of the prisoners for many years In United States of America there are Fifty(50) states all of them having different rules used in disfranchisement of the prisoner and ex felon, the good example of such as variation when dealing with disenfranchisement are mentioned hereunder;     In Columbia, Maine and Vermont felons do not lose their right to vote even if they are in prison In 21 states, felons lose their voting rights only whey are in prison and receive utomatic restoration upon release In 16 states, felons lose their voting rights when they are in prison and for a period of time after, typically on parole or probation, Voting right are automatically restored after this time In 11 states felons lose their voting rights for some crimes23. http://www.nordicmonitor.com/2019/04/turkey-denied-the-right-to-vote-for-forpolitical-prisoner (accessed in 17 June 2021) 22 Dhami, Mandeep K., 2005, p. 237 23 www.ncls.org/research/elections -and-campains/felon-voting-rights:aspx 21 THE PRISONERS RIGHT TO VOTE; VINCE AJUMA 4. ASIA Asian continental being scattered by religion and races lead to be difficult for some of human right to vested in such as region, as the matter of fact also in this region there is no any strong organization which is responsible in organizing and administering any issue relating human right, however in the topic which is discussed in this article relating to the voting right of prisoner many Asian states provide voting right to the prisoners for example Indonesia, Saudi Arabia, Pakistan and China while in India, Philippines and Japan prisoners not allowed to vote. India India is the one among the country where by prisoners not allowed to vote regardless to the Article 32624 which provide the voting right to all citizen except for a children with less than 18 years old, however Section 62(5 ) of the Representation of the Peoples Act 25depriving prisoners from voting except those under dentition, however it is argued that Imprisonment is not an end in itself but means to an end, punishment should be means to improve, and not the means to alienate. In the case of Anukul Chandra Pradhan v. Union of India & Ars 26the Supreme court of India was on the view that the prisoners right to vote is subjected to the restrictions prescribed in the Representation of People’s Act(ROPA) 27 thus, prisoners do not have the right to vote under the Act, in this case the petitioner challenged aforementioned provision to be unconstititutional since it contradicting against both article 14 and article 21 of the constitution , the court rejected such as challenge on the ground that it was the means of preventation of politics criminalization and ensuring the integrity of the electoral process. “Right to vote being statutory right is subject to the restrictions prescribed in Representations of People’s Act” Constitution of India 1951(ROPA) 26 1997(AIR)SC 2814 27 Op.cit 24 25 THE PRISONERS RIGHT TO VOTE; VINCE AJUMA Also at the Patna High Court, the court held that “The right to vote is a statutory right, the law gives it , and the law can take it away” Recently, three law school students Chaudhary, Prema Singh, and Atul Kumal challenged section 62(5) being unconstitutional but the Delhi High Court dismissing it and upheld the 1997( the Judgment)28 on basis of it relaying much on public interest. Thus, the voting right of prisoner in India it seems to be just like a dream simply because the court itself is the one protecting such legislation. In summary, it seems that, the restriction which was made by the state in the prohibition of prisoner to vote has got new vision which is can be discussed and answered by using the following issue; 1) That, It is fair, just and reasonable to deprive prisoners their right to vote? It seems that, it is not fair, just and reasonable to put restriction to the prisoners since it is look like it is one of the basic fundamental rights which every one shall be entitled to enjoy as it provided under United Nation Declaration of Human Rights. 2) The disfranchisement has any impact to the development of the country? Its quiet clear that, the disfranchisement of prisoner in any country does not have any positive impact to the development of the country rather than it reduce the number of the voters who always elects a representative who participating directly to the development activity. Thus, it such as disfranchisement is seems to be unreasonable and as the matter of fact and law, Article 5(2)(c)29 of the constitution together with National Election Act section 11(1)(c)30 should be amended if those who are in authority of doing so think fit. Op.cit Constitution of United Republic Of Tanzania(1977) 30 CAP 343 R.E 2019 28 29