, NAIROBI, Kenya, Jun 23 – The Interim Independent Constitutional Dispute Resolution Court (IICDRC) has ruled that all inmates should participate in the forthcoming referendum saying their registration as voters will not scuttle the ongoing constitutional review process.
The court has further directed the Interim Independent Electoral Commission (IIEC) to ensure that the inmates were registered within the next 21 days and ordered Attorney General Amos Wako to facilitate the use of prisons as polling stations.
The ruling by a five-judge bench follows an application filed by Kituo cha Sheria after the IIEC refused to register prisoners as voters ahead of the August 4 referendum.
In a one-and-a-half hour judgment read by Justice Samuel Mukunya, the IICDRC said the Constitution did not prohibit inmates from participating in the referendum.
“The registration of the 53,000 inmates in about 90 prisons countrywide will not interfere with this process (referendum). It can be done and should be done before the referendum,” he said.
The judges ordered the IIEC to reopen its voter registers to accommodate inmates saying;”The manual registration exercise was extended even as the Electronic Voter Registration exercise continued. The IIEC continued registering people even after the referendum question had been published. Their conduct is testimony to the fact that they can register inmates.”
Justice Mukunya also clarified that the orders only related to the referendum and said the government should meet all costs that would be incurred as a result. Only inmates aged 18 and above and of sound mind will participate.
The civil rights group was represented by three lawyers led by Gertrude Angote who argued that the ruling would not derail the referendum but that it favoured a basic human right.
The IIEC which was represented by Kimani Muhoro.
Kituo Cha Sheria Executive Director Priscilla Nyokabi had told Capital News in a May interview – before the case was filed – that there were no limitations in law barring the IIEC from registering prisoners.
She had argued that the constitution only barred inmates from participating in general election processes but not the Constitution referendum process.
“If Parliament intended that inmates are not registered as voters nothing would have been easier than for them to explicitly say that (in legislation),” she said.
Ms Nyokabi also pointed out South Africa, Canada, the United Kingdom and other commonwealth countries as states that allowed prisoners to take part in the polls.
“In other countries like Germany they would say if you have committed treason or offences related to an election then you cannot partake in elections. But if you committed completely unrelated offences there is no reason to lose citizenship. And at the very least that clause should apply to those who have been convicted not remandees,” she added.